Front Page Titles (by Subject) PART VII: TORTS - Select Essays in Anglo-American Legal History, vol. 3
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PART VII: TORTS - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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[Other References on the Subjects of this Part are as follows:
In Select Essays:
The History of Agency (in Torts), by O. W. Holmes, Jr. (No. 63, Vol. III).
The Disseisin of Chattels, by J. B. Ames (No. 67, Vol. III).
In other Series and Journals:
Law and Morals, by J. B. Ames (Address at the 75th Anniversary of the Cincinnati Law School, 1908; reprinted in the Harvard Law Review, 1908, XXII, 97).
The Historical Method of the Study of Law, illustrated by the Master’s Liability for his Servant’s Tort, by J. M. Gest. (Address at the Temple College, Philadelphia, 1902.)]
THE HISTORY OF TROVER1
THE classic count in trover alleges that the plaintiff was possessed, as of his own property, of a certain chattel; that he afterwards casually lost it; that it came to the possession of the defendant by finding; that the defendant refused to deliver it to the plaintiff on request; and that he converted it to his own use, to the plaintiff’s damage. And yet throughout the history of this action the last of these five allegations has been the only one that the plaintiff must prove. The averments of loss and finding are notorious fictions, and that of demand and refusal is surplusage, being covered by the averment of conversion. Under the first allegation the plaintiff need not prove that the chattel was his own property, or that he was in actual possession of it. It is enough to show actual possession as a bailee, finder, or trespasser, or to prove merely an immediate right of possession.
A greater discrepancy than that here pointed out between a count and the evidence required to support it can hardly be found in any other action. But it is generally true that averments in pleading, however inaccurate, superfluous, or fictitious they may be at a given time, were once accurate and full of legal significance. The count in trover is no exception to this rule. To make this clear, however, it is necessary to consider in some detail the remedies at the command of the plaintiff, in early English law, for the asportation, detention, or destruction of chattels. These remedies were the four actions, known as Appeals of robbery or larceny, Trespass, Replevin, and Detinue.
Appeal of Robbery or Larceny
For a century after the Norman Conquest there was no public prosecution of crime. Proceedings against wrongdoers, whether criminals or mere tort-feasors, depended upon the initiative of the parties injured, and took the form of private actions. These actions, in the royal courts, were called appeals, and, in their final development, fell into three classes: (1) the compensatory appeals, i. e., appeals of battery, mayhem, and imprisonment, in which the appellor recovered damages; (2) the punitory appeals, i. e., appeals of homicide, rape, arson, and also robbery or larceny of chattels worth 12d. or more, where the stolen chattels could not be recovered, in which the punishment of the defendant was the sole object;1 (3) the recuperatory appeals of robbery or larceny, in which the appellor sought to recover the stolen chattels as well as to discover and punish the thief. It is with this class of appeals that we are concerned in this paper.
The procedure in the Anglo-Norman period is described by Glanvil, Bracton, Britton, and Fleta.2 Britton’s account is the fullest. The victim of the theft upon the discovery of his loss raised hue and cry, and with his neighbors made fresh pursuit after the thief. If the latter was caught, on fresh pursuit, with the “mainour,” i. e., with the pursuer’s goods in his possession, the case was disposed of in the most summary manner. The prisoner was taken at once to an impromptu court, and if the pursuer, with others, made oath that the goods had been stolen from him, was straightway put to death, without a hearing, and the pursuer recovered his goods. Britton’s statement is borne out by several reported cases.1
If not taken freshly on the fact, the person found in possession of the chattel had a right to be heard. The appellor, placing his hand upon the chattel,2 charged the appellee with the theft. There were several modes of meeting the charge. The appellee might deny it in toto. The controversy was then settled by wager of battle, unless the appellee preferred a trial by jury.3 The chattel went to the winner in the duel.
The appellee might, on the other hand, claim merely as the vendee or bailee of a third person. He would then vouch this third person as a warrantor to appear and defend the appeal in his stead. Glanvil gives the writ to compel the appearance of the warrantor.4 If the warrantor failed to appear, or, appearing, successfully disputed the sale or bailment by wager of battle,5 the appellor recovered the chattel, and the appellee was hanged. If the appellee won in the duel with the vouchee, the vouchee was hanged.6 If the warrantor came and acknowledged the sale or bailment, the chattel was put temporarily in his hands, the appellee withdrew from the appeal, and the appellor thereupon appealed the warrantor as the thief or with the words that he knew no other thief than him.1 The warrantor might in his turn vouch to warranty or dispute the appellor’s right. If the appellor was finally successful against any warrantor, he recovered the chattel. If he was unsuccessful, the chattel was restored to the original appellee. This vouching to warranty is to be regarded as the following up of the trail of the thief, whose capture is an essential object of the whole procedure.
The appellee might, thirdly, though having no one to vouch as a warrantor, claim to have bought the chattel at a fair or market. Upon proof of this he was acquitted of the theft; but the appellor, upon proof of his former possession and loss of the chattel, recovered it. There was, as yet, no doctrine of purchase in market overt.
This private proceeding for the capture of the thief and recovery of the stolen chattel, as described in English law treatises and decisions of the thirteenth century, is of Teutonic origin. Its essential features are found in the Salic law of the fifth century;2 but by the middle of the thirteenth century this time-honored procedure had seen its best days. The public prosecution of crime was introduced by the Assize of Clarendon in 1166, and with the increasing effectiveness of the remedy by indictment, the victims of robbery or theft were more and more willing to leave the punishment of wrong-doers in the hands of the Crown. On the other hand, the path of him who would use the appeal as a means of recovering the chattel stolen from him was beset with difficulties.
The appellor must, in the first place, have made fresh pursuit after the thief. In 1334 it was said by counsel that if he whose goods were stolen came within the year and a day, he should be received to have back his chattels. But Aldeburgh, J., answered: “Sir, it is not so in your case, but your statement is true in regard to waif and estray.”3
Secondly, the thief must have been captured by the appellor himself or one of his company of pursuers. In one case the owner of the stolen chattel pursued the thief as far as a monastery, where the thief took refuge in the church and abjured the realm. Afterward the coroner delivered the chattel to the owner because he had followed up and tried to take the thief. For having foolishly delivered the chattel the coroner was brought to judgment before the justices in eyre.1 So if the thief was arrested on suspicion by a bailiff, the king got the stolen chattel, because the thief was not arrested by the party.2
Thirdly, the thief must be taken with the goods in his possession. If, for instance, the goods were waived by the thief and seized by the lord of the franchise before the pursuers came up, the lord was entitled to them.3
Fourthly, the thief must be convicted on the pursuer’s appeal. “It is coroner’s law that he, whose goods were taken, shall not have them back unless the felon be attainted at his suit.”4 In one case the verdict in the case was not guilty, and that the appellee found the goods in the highway. The goods were present in the court. It was asked if the goods belonged to the appellor, and found that they did. Nevertheless, they were forfeited to the king.5 In another case the thief was appealed by three persons for different thefts. He was convicted upon the first appeal and hanged. The goods stolen from the two other appellors were forfeited to the king.6 The result was the same if the pursuer’s failure to convict was because the thief rather than be taken killed himself,1 or took refuge in a church and abjured the realm,2 or died in prison.3
Finally, since the rule which denied the right of defence by wager of battle to one taken with the “mainour” seems not to have been established before the fourteenth century,4 the appellor was exposed to the risk of defeat and consequent loss of his chattels by reason of the greater physical skill and endurance of the appellee. There was the danger, also, that an appellee of inferior physical ability might fraudulently vouch as a warrantor an expert fighter, who, as a paid champion, would take the place of the original appellee. To avoid the duel with this champion, the appellor must establish by his secta or by an inquest that the ostensible warrantor was a hired champion.5
It is obvious from this account of the appeal of robbery or larceny that the absence of pecuniary redress against a thief must sooner or later become an intolerable injustice to those whose goods had been stolen, and that a remedy would be found for this injustice. This remedy was found in the form of an action for damages, the familiar action of
Trespass de Bonis Asportatis
The recorded instances of trespass in the royal courts prior to 1252 are very few. In the “Abbreviatio Placitorum” some twenty-five cases of appeals of different kinds are mentioned, belonging to the period 1194-1252, but not a single case of trespass. In the year 37 Henry III. (1252-1253) no fewer than twenty-five cases of trespass are recorded, and from this time on the action is frequent, while appeals are rarely brought. It is reasonable to suppose that the writ of trespass was at first granted as a special favor, and became, soon after the middle of the fourteenth century, a writ of course.
The introduction of this action was a very simple matter. An original writ issued out of Chancery directing the sheriff to attach the defendant to appear in the King’s Bench to answer the plaintiff. The jurisdiction of the King’s Court was based upon the commission of an act vi et armis and contra pacem regis, for which the unsuccessful defendant had to pay a fine. These words were therefore invariably inserted in the declaration. Indeed, the count in trespass was identical with the corresponding appeal, except that it omitted the offer of battle, concluded with an ad damnum clause, and substituted the words vi et armis for the words of felony,—feloniter, felonice, in felonia, or in robberia. The count in the appeal was doubtless borrowed from the ancient count in the popular or communal courts, the words of felony and contra pacem regis being added to bring the case within the jurisdiction of the royal courts.1
The procedure of the King’s Courts was much more expeditious than that of the popular courts, the trial was by jury2 instead of by wager of law, and judgment was satisfied by levy of execution and sale of the defendant’s property, whereas in the popular courts distress and outlawry were the limits of the plaintiff’s rights. As an appeal might be brought for the theft of any chattel worth 12d. or more, and as the owner now had an option to bring trespass where an appeal would lie, there was danger that the royal courts would be encumbered with a mass of petty litigation. To meet this threatened evil the Statute 6 Ed. I. c. 8 was passed, providing that no one should have writs of trespass before justices unless he swore by his faith that the goods taken away were worth 40 shillings at the least.
The plaintiff’s right in trespass being the same as the appellor’s right in the appeal, we may consider them together. Bracton says the appeal is allowed “utrum res quae ita subtracta fuerit, extiterit illius appellantis propria vel alterius, dum tamen de custodia sua.”1 Britton and Fleta are to the same effect.2 The right is defined with more precision in the “Mirror of Justices”: “In these actions (appeals) two rights may be concerned,—the right of possession, as is the case where a thing is robbed or stolen from the possession of one who had no right of property in it (for instance, where the thing had been lent, bailed, or let); and the right of property, as is the case where a thing is stolen or robbed from the possession of one to whom the property in it belongs.”3 The gist of the plaintiff’s right was, therefore, possession, either as owner or as bailee.4 On the death of an owner in possession of a charter the heir was constructively in possession, and could maintain trespass against one who anticipated him in taking physical possession of the charter.5
The bailor could not maintain an appeal, nor could he maintain the analogous Anefangsklage of the earlier Teutonic law.6 He had given up the possession to the bailee, retaining only a chose in action. For the same reason the bailor was not allowed, for many years, to recover damages in trespass. As early as 1323, however, and, doubtless, by the fiction that the possession of a bailee at will was the possession of the bailor also, the latter gained the right to bring trespass.7 In 1375 Cavendish, J., said, “He who has property may have trespass, and he who has custody another writ of trespass.” And Persay answered: “It is true, but he who recovers first shall oust the other of his action.”1 And this has been the law ever since, where the bailment was at the will of the bailor. The innovation was not extended to the case of the pledgor,2 or bailor for a term.3
This same distinction between a bailment at will and a bailment for a time is pointedly illustrated by the form of indictment for stealing goods from the bailee: “If the owner parts with the right of possession for a time, so as to be deprived of the legal power to resume the possession during that time, and the goods are stolen during that time, they cannot be described as the goods of such owner; but if the owner parts with nothing but the actual possession, and has a right to resume possession when he thinks fit, the goods may be described either as his goods, or his bailee’s. . . . The ground of the decision in Rex v. Belstead and Rex v. Brunswick was that the owner had parted with the right of possession for the time, he had nothing but a reversionary interest, and could not have brought trespass.”4
In like manner, it is probable that for an estray carried off trespass might have been brought by either the owner or the lord within the year and a day.5 A servant could not bring trespass unless he had been intrusted with goods as a bailee by or for his master.6 Nor could a servant maintain an appeal without his master.7
Trespass was an action for damages only,8i. e. a strictly personal action. But being a substitute for the appeal, which gave the successful appellor the stolen res, the measure of damages would naturally be the value of the stolen res. This was the rule of damages even though the action was brought by a bailee1 or by a trespasser against a second trespasser. The rule was at one time thought to be so inflexible as to deprive a bailee for a time of the right to bring trespass for a wrongful dispossession by his bailor. Hankford, J., said in one case: “Plaintiff shall not have the action, because then he would recover damages to the value of the beasts from him who owned them, and this is not right. But the plaintiff shall have an action on the case. But if a stranger takes beasts in my custody I shall have trespass against him and recover their value, because I am chargeable to my bailor who has the property, but here the case is different quod Hill and Culpepper, JJ., concesserunt.”2 It is needless to say that this is no longer law. The plaintiff has for centuries been allowed to recover in trespass against the bailor his actual loss.3 On the same principle it was once ruled that a plaintiff could not have trespass if his goods had been returned to him; “for, as Fulthorp, J., said, the plaintiff ought not to have his goods and recover value too, therefore he should recover damages in trespass on the case for the detainer.”4 But Paston, J., said the jurors should allow for the return of the chattel in assessing the damages, and his view has, of course, prevailed.5
The close kinship between the appeal and trespass explains the nature of the trespasser’s wrong to the plaintiff. A robber or thief dispossesses the owner with the design of excluding him from all enjoyment of the chattel. His act is essentially the same as that of one who ejects another from his land, i. e., a disseisin. Indeed, in many respects the recuperatory appeal of robbery or larceny is the analogue of the assize of novel disseisin. It is not surprising, therefore, to find that trespass for an asportation would not lie originally except for such a dispossession as in the case of land would amount to a disseisin.1 If, for instance, a chattel was taken as a distress, trespass could not be maintained.2 Replevin was the sole remedy. In 1447 the Commons prayed for the right to have trespass in case of distress where the goods could not be come at.3
In one respect trespass differed materially from the appeal and also from the assize of novel disseisin. The disseisee and the owner of the chattel could recover the land or the chattel from the grantee of the disseisor or thief. But the dispossessed owner of a chattel could not bring trespass for the value of the chattel against the grantee of the trespasser.4 Even here, however, the analogy did not really fail. Trespass was an action to recover damages for a wrong done to the plaintiff by taking the chattel from his possession. The grantee of the trespasser had done no such wrong. Therefore, no damages were recoverable, and the action failed altogether. Similarly the grantee of the disseisor had done no wrong to the disseisee, and therefore, while he must surrender the land, he was not obliged, prior to the Statute of Gloucester, to pay damages to the demandant.5 On the contrary, the demandant was in misericordia if he charged the grantee with disseisin.1 By the same reasoning, just as the dispossessed owner of a chattel could not have trespass against a second trespasser,2 so the demandant could not recover damages from a second disseisor.3 The wrong in each case was against the first trespasser or disseisor, who had gained the fee simple or property, although a tortious fee simple or property.
The view here suggested, that the defendant’s act in trespass de bonis asportatis was essentially the same as that of a disseisor in the case of land, has put the writer upon the track of what he believes to be the origin of the familiar distinction in the law of trespass ab initio between the abuse of an authority given by law, and the abuse of an authority given by the party, the abuse making one a trespasser ab initio in the one case but not in the other. As we have seen, replevin, and not trespass, was the proper action for a wrongful distress. If, however, when the sheriff came to replevy the goods, the landlord, claiming the goods as his own, refused to give them up, the replevin suit could not go on; the plaintiff must proceed either by appeal of felony, or by trespass.4 The defendant by this assumption of dominion over the goods and repudiation of the plaintiff’s right was guilty of a larceny and trespass. Even if the defendant allowed the sheriff to replevy the goods, he might afterwards in court stop the action by a mere assertion, without proof, of ownership. The plaintiff as before was driven to his appeal or trespass.5
Early in the reign of Edward III. the law was so far changed that the defendant’s claim of ownership would not defeat the replevin action unless made before deliverance of the goods to the sheriff.1 But the old rule continued, if the distrainor claimed ownership before the sheriff, until, by the new writ, de proprietate probanda, the plaintiff procured a deliverance in spite of the defendant’s claim and thus was enabled to continue the replevin action as in the case of a voluntary deliverance. But the resort to this writ was optional with the plaintiff. He might still, if he preferred, treat the recusant defendant as a trespasser. In Rolle’s Abridgment we read: “If he who has distrained detains the beasts after amends tendered before impounding, he is a trespasser ab initio. 45 Ed. III. 9 b. Contra, Co. 8, Six Carpenters, 147.”2
What was true in the case of a distress was equally true of an estray. “If the lord avow it to be his own, the person demanding it may either bring an action to recover his beast as lost (adirree) in form of trespass, or an appeal of larceny, by words of felony.”3 In 1454 Prisot, J., in answer to counsel’s suggestion that, if he lost a box of charters, he should have detinue, said: “I think not, for in your case you shall notify the finder and demand their surrender, and if he refuses, you shall have an action of trespass against him; for by the finding he did no wrong, but the tort began with the detention after notice.”4
On the other hand, a bailee who, in repudiation of his bailor’s rights, refused to give back the chattel on request was never chargeable as a thief or trespasser.5 Unlike the distrainor or finder, who took the chattel without the consent of the owner but by virtue of a rule of law, the bailee did not acquire the possession by a taking, but by the permission and delivery of the bailor. Hence it was natural to say that a subsequent tort made one a trespasser ab initio if he came to the possession of a chattel by act of law, but not if he came to its possession by act of the party. The rule once established in regard to chattels was then extended to trespasses upon realty and to the person.
The subsequent history of the doctrine of trespass ab initio is certainly curious. There seems to be no indication in the old books that anything but a refusal to give up the chattel would make the distrainor or finder a trespasser. But in the case, in which Prisot, C. J., gave the opinion already quoted, Littleton, of counsel, insisted that detinue and not trespass was the proper action against the distrainor or finder for refusal to give up the chattel on demand, but admitted that trespass would lie if they killed or used the chattel.1 Littleton’s view did not at once prevail.2 But it received the sanction of Coke, who said that a denial, being only a nonfeasance, could not make one a trespasser ab initio;3 and their opinion has ever since been the established law. A singular departure this of Littleton and Coke from the ancient ways—the doctrine of trespass ab initio inapplicable to the very cases in which it had its origin!
The gist of the action of trespass de bonis asportatis, as we have seen, was a taking from the plaintiff’s possession under a claim of dominion. The trespasser, like a disseisor, acquired a tortious property. Trespass, therefore, would not lie for a wrongful distress; for the distrainor did not claim nor acquire any property in the distress. This is shown by the fact that he could not maintain trespass or trover if the distress was taken from him on the way to the pound, or taken out of the pound,1 but must resort to a writ of rescous in the one case, and a writ of de parco fracto in the other case. In these writs the property in the distress was either laid in the distrainee, or not laid in any one.2
But the distrainee, although debarred from bringing trespass, was not without remedy for a wrongful distress. From a very early period he could proceed against the distrainor by the action, which after a time came to be known as Replevin. This action was based upon a taking of the plaintiff’s chattels and a detention of them against gage and pledge. Hence Britton and Fleta treat of this action under the heading “De Prises de Avers” and “De captione averiorum,” while in Bracton and the Mirrour of Justices the corresponding titles are “De vetito namio” and “Vee de Naam.” In the first part of this paper it was shown that the action of replevin was originally confined to cases of taking by way of distress,3 but that in the reign of Edward III. it became a concurrent remedy with trespass. But the change was for centuries one of theory rather than of practice. In the four hundred years preceding this century there are stray dicta, but, it is believed, no reported decision that replevin would lie against any adverse taker but a distrainor.1 We need not be surprised, therefore, at Blackstone’s statement that replevin “obtains only in one instance of an unlawful taking, that of a wrongful distress.”2 Lord Redesdale, in Shannon v. Shannon,3 dissented from this statement, saying that replevin would lie for any wrongful taking, and his opinion has been generally regarded as law.4 But the attempt to extend the scope of the action so as to cover a wrongful detention without any previous taking was unsuccessful.5 From what has been said, it is obvious that replevin has played a very small part in the history of trover, and we may therefore pass without more to the last and, for the purpose of the present essay, the most important of our four actions, the action of
The appeal, trespass, and replevin were actions ex delicto. Detinue, on the other hand, in its original form, was an action ex contractu, in the same sense that debt was a contractual action. It was founded on a bailment; that is, upon a delivery of a chattel to be redelivered.6 The bailment might be at will or for a fixed term, or upon condition, as in the case of a pledge. The contractual nature of the action is shown in several ways.
In the first place the count must allege a bailment, and a traverse of this allegation was an answer to the action.7
Again, detinue could not be maintained against a widow in possession of a chattel bailed to her during her marriage, because “ele ne se peut obliger.”1 Nor, for the same reason, would the action lie against husband and wife on a bailment to them both.2 Thirdly, on a bailment to two or more persons, all must be joined as defendants, for all were parties to the contract.3 On the same principle, all who joined in bailing a chattel must be joined as plaintiffs in detinue.4 On the other hand, on the bailment by one person of a thing belonging to several, the sole bailor was the proper plaintiff.5 For it was not necessary in detinue upon a bailment, as it was in replevin and trespass, to allege that the chattels detained were the “goods of the plaintiff.”6 Fourthly, the gist of the action of detinue was a refusal to deliver up the chattel on the plaintiff’s request; that is, a breach of contract. Inability to redeliver was indeed urged in one case as an objection to the action, although the inability was due to the active misconduct of the defendant. “Brown. If you bail to me a thing which is wastable, as a tun of wine, and I perchance drink it up with other good fellows, you cannot have detinue, inasmuch as the wine is no longer in rerum natura, but you may have account before auditors, and the value shall be found.” This, Newton, C. J., denied, saying detinue was the proper remedy.7 It may be urged that the detinue in this case was founded upon a tort. But in truth the gist of the action was the refusal to deliver on request. This is brought out clearly by the case of Wilkinson v. Verity.8 The defendant, a bailee, sold the chattel intrusted to his care. Eleven years after this conversion the bailor demanded the redelivery of the chattel, and upon the bailee’s refusal obtained judgment against him on the breach of the contract, although the claim based upon the tort was barred by the Statute of Limitations. The breach of contract is obvious where the bailee was charged in detinue for a pure nonfeasance, as where the goods were lost.1 Fifthly, bailees were chargeable in assumpsit, after that action had become the common remedy for the breach of parol contracts.2
Finally, we find, as the most striking illustration of the contractual nature of the bailment, the rule of the old Teutonic law that a bailor could not maintain detinue against any one but the bailee. If the bailee bailed or sold the goods, or lost possession of them against his will, the sub-bailee, the purchaser, and even the thief, were secure from attack by the bailor. This doctrine maintained itself with great persistency in Germany and France.3 In England the ancient tradition was recognized in the fourteenth century. In 1351 Thorpe (a judge three years later) said: “I cannot recover against any one except him to whom the charter was bailed.”4 Belknap (afterwards Chief Justice) said in 1370: “In the lifetime of the bailee detinue is not given against any one except the bailee, for he is chargeable for life.”5 Whether it was ever the law of England that the bailor was without remedy, if the bailee died in possession of the chattel, must be left an open question.6 In a case of the year 1323 it was generally agreed that the executor of a bailee was liable in detinue.1 But the plaintiff in that case, who alleged a bailment of a deed to A, and that the deed came to the hands of the defendant after A’s death, and that defendant refused to deliver on request, failed because he did not make the defendant privy to A as heir or executor. Afterwards, however, the law changed, and it was good form to count of a bailment to A, and a general devenerunt ad manus of the defendant after A’s death.2 Belknap’s statement also ceased to be law, and detinue was allowed in the lifetime of the bailee against any one in possession of the chattel.3 In other words, the transformation in the manner just described, of the bailor’s restricted right against the bailee alone, to an unrestricted right against any possessor of the chattel bailed, virtually converted his right ex contractu into a right in rem.
It is interesting to compare this transformation with the extension at a later period of the right of the cestuy que trust. In the early days of uses the cestuy que use could not enforce the use against any one but the original feoffee to uses. In 1482 Hussey, C. J., said: “When I first came to court, thirty years ago, it was agreed in a case by all the court that if a man had enfeoffed another in trust, if the latter died seised so that his heir was in by descent, that then no subpœna would lie.”4 Similarly, the husband or wife of the feoffee to uses were not bound by the use.5 Nor was there at first any remedy against the grantee of the feoffee to uses although he was a volunteer, or took with notice of the use, because as Frowicke, C. J., said, “The confidence which the feoffor put in the person of his feoffee cannot descend to his heir nor pass to the feoffee of the feoffee, but the latter is feoffee to his own use, as the law was taken until the time of Henry IV. [VI.?].”1 One is struck by the resemblance between this remark of the English judge and the German proverb about bailors: “Where one has put his trust, there must he seek it again.”2 The limitation of the bailor at common law, and the cestui que trust in equity, to an action or suit against the original bailee or trustee, are but two illustrations of one characteristic of primitive law, the inability to create an obligation without the actual agreement of the party to be charged.3
A trust, as every one knows, has been enforceable for centuries against any holder of the title except a purchaser for value without notice. But this exception shows that the cestui que trust, unlike the bailor, has not acquired a right in rem. This distinction is, of course, due to the fundamental difference between common-law and equity procedure. The common law acts in rem. The judgment in detinue is, accordingly, that the plaintiff recover the chattel, or its value. Conceivably the common-law judges might have refused to allow the bailor to recover in detinue against a bona fide purchaser, as they did refuse it against a purchaser in market overt. But this would have involved a weighing of ethical considerations altogether foreign to the medieval mode of thought. Practically there was no middle ground between restricting the bailor to an action against his bailee, and giving him a right against any possessor. Equity, on the other hand, acts only in personam, never decreeing that a plaintiff recover a res, but that the defendant surrender what in justice he cannot keep. A decree against a mala fide purchaser or a volunteer is obviously just: but a decree against an innocent purchaser, who has acquired the legal title to the res, would be as obviously unjust.
In all the cases of detinue thus far considered the action was brought by a bailor, either against the bailee or some subsequent possessor. We have now to consider the extension of detinue to cases where there was no bailment. Legal proceedings for the recovery of chattels lost were taken, in the earliest reported cases, in the popular courts. The common case was doubtless that of an animal taken as an estray by the lord of a franchise. If the lord made due proclamation of the estray, and no one claimed it for a year and a day, the lord was entitled to it. But within the year and day the loser might claim it, and if he produced a sufficient secta, or body of witnesses, to swear to his ownership or loss of the animal, it was customary for the lord to give it up, upon the owner’s paying him for its keep, and giving pledges to restore it in case of any claim for the same animal being made within the year and day.1 There is an interesting case of the year 1234, in which after the estray had been delivered to the claimant upon his making proof and giving pledges, another claimant appeared. It is to be inferred from the report that the second claimant finally won, as he produced the better secta.2 If the lord, or other person in whose hands the estray or other lost chattel was found, refused to give it up to the claimant, the latter might count against the possessor for his res adirata, or chose adirrée, that is, his chattel gone from his hand without his consent;3 or he might bring an appeal of larceny.4 According to Bracton, the pursuer of a thief was allowed “rem suam petere ut adiratam per testimonium proborum hominum et si consequi rem suam quamvis furatam.”1 This statement of Bracton, taken by itself, would warrant the belief that the successful plaintiff in the action for a chose adirrée had judgment for the recovery of the chattel. This may have been the fact; but it is difficult to believe that such a judgment was given in the popular court. No intimation of such a judgment is to be found in any of the earlier cases. It seems probable that Bracton meant simply that the plaintiff might formally demand his chattel in court as adiratum, and, by the defendant’s compliance with the demand, recover it. For, in the sentence immediately following, Bracton adds that if the defendant will not comply with his demand,—“si . . . in hoc ei non obtemperaverit,”—the plaintiff may proceed further and charge him as a thief by an appeal of larceny. This change from the one action to the other is illustrated by a case of the year 1233.2 The count for a chose adirrée is described in an early Year Book.3 The latest recognition of this action that has been found is a precedent in Novae Narrationes, f. 65, which is sufficiently interesting to be reproduced here in its original form.
De Chyval Dedit
Ceo vous monstre W. &c. que lou il avoit un son chival de tiel colour price de taunt, tiel jour an et lieu, la luy fyst cel cheval dedire [adirré], et il alla querant dun lieu en autre, et luy fist demander en monstre fayre & marche et de son chival ne poet este acerte, ne poet oier tanquam a tiel jour quil vient et trova son cheval en la garde W. de C. que illonques est s. en la gard mesme cesty W. en mesme la ville, et luy dit coment son chival fuit luy aderere et sur ceo amena suffisantz proves de prover le dit chival estre son, devant les baylliefz et les gentes de la ville, & luy pria qui luy fist deliveraunce, et il ceo faire ne voyleit ne uncore voet, a tort et as damages le dit W. de XX. s. Et sil voet dedire &c. [vous avez cy &c. que ent ad suit bon].
This count points rather to damages than to the recovery of the horse. It is worthy of note, also, that its place in the “Novae Narrationes” is not with the precedents in detinue, but with those in trespass. There seems to be no evidence of an action of chose adirrée in the royal courts. Nor has any instance been found in these courts of detinue by a loser against a finder prior to 1371.1 In that year a plaintiff brought detinue for an ass, alleging that it had strayed from him to the seignory of the defendant, and that he one month afterwards offered the defendant reasonable satisfaction (for the keep). Issue was joined upon the reasonableness of the tender.2 Detinue by a loser against a finder would probably have come into use much earlier but for the fact, pointed out in the first part of this paper, that the loser might bring trespass against a finder who refused to restore the chattel on request. Indeed, in 1455,3 where a bailiff alleged simply his possession, and that the charters came to the defendant by finding, Prisot, C. J., while admitting that a bailor might have detinue against any possessor of goods lost by the bailee, expressed the opinion that where there was no bailment the loser should not bring detinue, but trespass, if, on demand, the finder refused to give up the goods. Littleton insisted that detinue would lie, and his view afterwards prevailed. It was in this case that Littleton, in an aside, said: “This declaration per inventionem is a new-found Halliday; for the ancient declaration and entry has always been that the charters ad manus et possessionem devenerunt generally without showing how.” Littleton was quite right on this point.1 But the new fashion persisted, and detinue sur trover came to be the common mode of declaring wherever the plaintiff did not found the action upon a bailment to the defendant. In the first edition of “Liber Intrationum” (1510), f. 22, there is a count alleging that the plaintiff was possessed of a box of charters; that he casually lost it, so that it came to the hands and possession of the defendant by finding, and that he refused to give it up on request.2 The close resemblance between this precedent and the earlier one from “Novae Narrationes” will have occurred to the learned reader. But there is one difference. In the count for a chose adirrée, it is the plaintiff who finds the chattel in the defendant’s possession. In detinue sur trover the finding alleged is by the defendant. And until we have further evidence that the action in the popular courts was for the recovery of the chattel and not for damages only, it seems reasonable to believe that detinue sur trover in the king’s courts was not borrowed from the action of chose adirrée, but was developed independently out of detinue upon a general devenerunt ad manus. But whatever question there may be on this point, no one can doubt that detinue sur trover was the parent of the modern action of trover.
Add to the precedent in the “Liber Intrationum” the single averment that the defendant converted the chattel to his own use, and we have the count in trover.
It remains to consider how the action of trover at first became concurrent with detinue, and then effectually supplanted it until its revival within the last fifty years.
There were certain instances in which detinue, in its enlarged scope, and trespass, did not adequately protect owners of chattels. Neither of these actions would serve, for instance, if a bailee or other possessor misused the goods, whereby their value was diminished, but nevertheless delivered them to the owner on request. The owner’s only remedy in such a case was a special action on the case. We find such an action in the reports as early as 1461,1 the propriety of the action being taken for granted by both counsel and court.
If, again, after impairing the value of the goods, the bailee or other possessor refused to deliver them to the owner on request, detinue would of course lie. But the judgment being that the plaintiff recover his goods or their value with damages for the detention,2 if the defendant saw fit to restore the goods under the judgment, the plaintiff would still have to resort to a separate action on the case in order to recover damages for the injury to the goods. This was pointed out by Catesby in an early case,3 and later by Serjeant Moore.4 To prevent this multiplicity of actions, the plaintiff was allowed to bring an action on the case in the first instance, and recover his full damages in one action.
If a bailee destroyed the chattel bailed, the bailor, as we have seen, could recover its value in detinue. But if a possessor other than the owner’s bailee destroyed the chattel, if, for instance, the tun of wine which Brown and his “bons compagnons” drank up, in the case already mentioned, had come to the hands of Brown in some other way than through bailment by the owner, it is at least doubtful if the owner could have recovered the value of the wine in detinue. Brown, in this case, never agreed with the owner to give up the wine on request. The plaintiff in detinue must therefore show a detention, which would be impossible of goods already destroyed. This was the view of Brian, C. J. This conservative judge went so far, indeed, as to deny the owner an action on the case under such circumstances, but on this latter point the other justices were “in contraria opinione.”1
If case would lie against any possessor for misusing goods of another, and also against a possessor other than a bailee for the destruction of the goods, it was inevitable that it should finally be allowed against a bailee who had destroyed the goods. Such an action was brought against the bailee in a case of the year 1479,2 which is noteworthy as being the earliest reported case in which a defendant was charged with “converting to his own use” the plaintiff’s goods.3 Choke, J., was in favor of the action. Brian, C. J., was against it. Choke’s opinion prevailed.4
Later, a wrongful sale was treated as a conversion. In 1510 the judges said an action on the case would lie against a bailee who sold the goods because “he had misdemeaned himself.”5 In a word, trover became concurrent with detinue in all cases of misfeasance.
Trover also became concurrent with trespass. In 1601 the Court of King’s Bench decided that trover would lie for a taking.6 In the same year the Court of Common Pleas was equally divided on the question, but in 1604, in the same case, it was decided, one judge dissenting, that the plaintiff might have his election to bring trespass or case.7 The Exchequer gave a similar decision in 1610.1 In 1627, in Kinaston v. Moore,2 “semble per all the Justices and Barons, . . . although he take it as a trespass, yet the other may charge him in an action upon the case in a trover if he will.”
In all these cases the original taking was adverse. If, however, the original taking was not adverse, as where one took possession as a finder, a subsequent adverse holding, as by refusing to give up the goods to the owner on request, made the taker, according to the early authorities cited in the first part of this paper,3 a trespasser ab initio. Trover was allowed against such a finder in 1586, in Eason v. Newman,4 Fenner, J., citing the opinion of Prisot, C. J., that the owner could maintain trespass in such a case.
That trover was allowed in Eason v. Newman as a substitute for trespass, and not as an alternative of detinue, is evident, when we find that for many years after this case trover was not allowed against a bailee who refused to deliver the chattel to the bailor on request. The bailee was never liable in trespass, but in detinue. In 1638, in Holsworth’s Case,5 an attempt to charge a bailee in trover for a wrongful detention was unsuccessful, as was a similar attempt nine years later in Walker’s Case,6 “because the defendant came to them by the plaintiff’s own livery.” A plaintiff failed in a similar case in 1650.7 In the “Compleat Attorney,”8 published in 1666, we read: “This action (trover) properly lies where the defendant hath found any of the plaintiff’s goods and refuseth to deliver them upon demand; or where the defendant comes by the goods by the delivery of any other than the plaintiff.” But in 1675, in Sykes v. Wales,9 Windham, J., said: “And so trover lieth on bare demand and denial against the bailee.”
By these decisions trover became concurrent with detinue in all cases, except against a bailee who could not deliver because he had carelessly lost the goods.1 Indeed, trover in practice, by reason of its procedural advantages, superseded detinue until the present century.2
Although trover had now made the field of detinue and trespass its own, there was yet one more conquest to be made. Trespass, as the learned reader will remember, would not lie, originally, for a wrongful distress, the taking in such a case not being in the nature of a disseisin. In time, however, trespass became concurrent with replevin. History repeats itself in this respect, in the development of trover. In Dee v. Bacon,3 the defendant pleaded to an action of trover that he took the goods damage feasant. The plea was adjudged bad as being an argumentative denial of the conversion. Salter v. Butler4 and Agars v. Lisle5 were similar decisions, because, as was said in the last case, “a distress is no conversion.” The same doctrine was held a century later in two cases in Bunbury. But in 1770, in Tinkler v. Poole,6 these two cases, which simply followed the earlier precedents, were characterized by Lord Mansfield as “very loose notes,” and ever since that case it has been generally agreed that a wrongful distress is a conversion.
7 This last step being taken, trover became theoretically concurrent with all of our four actions, appeal of larceny, trespass, detinue, and replevin, and in practice the common remedy in all cases of asportation or detention of chattels or of their misuse or destruction by a defendant in possession. The career of trover in the field of torts is matched only by that of assumpsit, the other specialized form of action on the case, in the domain of contract.
The parallel between trover and assumpsit holds good not only in the success with which they took the place of other common-law actions, but also in their usurpation, in certain cases, of the function of bills in equity. A defendant who has acquired the legal title to the plaintiff’s property by fraud or duress, is properly described as a constructive trustee for the plaintiff. And yet if the res so acquired is money, the plaintiff may have an action of assumpsit for money had and received to his use; and if the res is a chattel other than money, the plaintiff is allowed, at least in this country, to sue the defendant in trover.1 In some cases, indeed, an express trustee is chargeable in trover, as where an indorsee for collection refuses to give back the bill or note to the indorser. Lord Hardwicke, it is true, had grave doubts as to the admissibility of trover in such a case;2 but Lord Eldon reluctantly recognized the innovation.3 This innovation, it should never be forgotten, was a usurpation. Trover as a substitute for a bill in equity is, and always must be, an anomaly.
THE HISTORY OF THE LAW OF DEFAMATION1
IF the laws of each age were formulated systematically, no part of the legal system would be more instructive than the law relating to defamation. Since the law of defamation professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion, the estimate formed of the relative importance of these objects, and the degree of success attained in reconciling them, would be an admirable measure of the culture, liberality, and practical ability of each age. Unfortunately the English law of defamation is not the deliberate product of any period. It is a mass which has grown by aggregation, with very little intervention from legislation, and special and peculiar circumstances have from time to time shaped its varying course. The result is that perhaps no other branch of the law is as open to criticism for its doubts and difficulties, its meaningless and grotesque anomalies. It is, as a whole, absurd in theory, and very often mischievous in its practical operation.
Nevertheless, the existence of any body of legal rules is at least prima facie ground of justification. Some, it may be, are wholly pernicious; but they must have had some origin, and the longer they have existed the greater is the presumption that they have some utility. They can be accounted for only by discovering the special circumstances out of which they arose, and the forces to which they have been exposed. By studying the way in which they have grown, and the functions which they have discharged, we can best arrive at a sound conclusion concerning their real nature and value.
Early in the middle ages reputation was amply protected in England by the combined secular and spiritual authorities. In the course of the nationalization of justice by the king’s judges the jurisdiction of the seignorial courts fell into decay; and, after a long and bitter struggle, the jurisdiction of the ecclesiastical courts was also absorbed by the royal tribunals. When, however, the king’s courts acquired jurisdiction over defamation, during the latter half of the sixteenth century, various social and political conditions combined to contract the actionable right, or remedy. The king’s courts granted only a limited remedy, the selection being based partly upon the character of the imputation, partly upon the consequences resulting therefrom; moreover, even this limited remedy was little concerned in theory with the right to reputation as such. By reason of its growth in this way the early common law of defamation consisted merely of a series of exceptions to entire license of speech. When, at length, early in the seventeenth century, the potentialities of the printing press dawned upon the absolute monarchy, the emergency was met, not by further additions to the list of actionable imputations, but by a direct importation of the Roman law, without regard to Roman limitations, and with certain additions adapted to the purpose in hand. This special provision for written or printed defamation, first adopted in the criminal law, eventually became also a principle of civil judicature. In this way a new principle of actionable defamation, based upon mere form, was introduced in the law. The original common law doctrine of defamation, based upon the nature of the imputation, became stereotyped as the law of spoken defamation, or slander; the doctrine inherited from Roman law, through the Star Chamber, became the law of written and printed defamation, or libel.1 The English law of defamation, therefore, was first limited by a process of selection, and then confused by a formal distinction which is not only unknown in other systems of law,2 but is also wholly accidental in origin and irrational in principle.
The beginnings of the law of defamation among the Germanic people take us back to the first stages in the development of organized society. The blood feud had supplanted indiscriminate vengeance, but the substitution of the wer, or money payment, as compensation for injury, was not very old when the early Leges Barbarorum were compiled. The process is very clearly marked in the case of defamation. The Lex Salica is much concerned with foul language. If one calls a man “wolf” or “hare” he must pay three shillings; for a false imputation of unchastity against a woman the penalty is forty-five shillings.3 By the terms of the Norman Costumal if one falsely calls another “thief” or “manslayer” he must pay damages, and, holding his nose with his fingers, must publicly confess himself a liar.1 It is a mistaken idea, therefore, to suppose that the primitive Teuton could feel only blows, and treated hard words of no account. Many forms of expression which in a civilized community would be regarded as violent abuse doubtless passed for common pleasantry, but reputation was dear to him and shame was keenly felt. Indeed, a good reputation was a defence to almost every crime.2
More than a thousand years ago King Alfred provided that the slanderer should have his tongue cut out, unless he could redeem it with the price of his head.3 The oldest English laws exact bot and wite of those who give bad names. The earliest records of pleadings in the local courts indicate the prevailing sensitiveness; disgrace or dishonor is one of the elements in almost every cause of action. If the defendant had beaten the plaintiff, this was done to the plaintiff’s damage to the amount of so many shillings, and to his dishonor (vituperium, dedecus, pudor, huntage) to the amount of so many shillings more.4
Actions for defamation were common in the seignorial courts in the thirteenth and fourteenth centuries.5 Many would doubtless resort to the duel, but for the mass of humble folk these courts probably did substantial justice. The manorial rolls show the operation of a jurisdiction sufficiently certain and severe to curb defamation of the baser sort. In these local courts the smirched reputation would be cleared before the very persons in whose presence it had been reviled. So that even at a later day when the king’s courts were well established, they do not deal with defamation; for such wrongs the humbler subjects sought their remedy in the more familiar, cheaper, and perhaps more trusted, local courts. When, at length, late in the sixteenth century, actions for defamation became common in the king’s courts, the manorial courts were in their decay.1
Meanwhile the Church punished defamation as a sin. Throughout Europe in the middle ages a great government existed, independent of the separate states; the temporal government was local, but there was a spiritual jurisdiction which was universal. From its humble beginnings in the efforts of the early Christian churches to persuade the faithful to lay their differences before their pastors, a jurisdiction had been evolved, through the canons established by the great councils during the fourth and fifth centuries, which had grown into a mighty system. It outgrew its foster-mother, the Roman law, and throughout Europe challenged the secular authority. From the ninth century to the close of the middle ages, the most autocratic monarch of Western Europe would not have dreamed of denying the authority of the canon law. It had its own tribunals, its own practitioners, its own procedure; it was a very real and active force in men’s lives.2 Indeed, monopolizing learning, as they did, the clergy, as individuals, were indispensable in the social life of the people; and, as an organized caste, the Church, in the performance of its professed duty to support the right and to protect the weak, had grasped the regulation of nearly everything that concerned the peaceful occupations of life.3
The demarcation of the real province of this ecclesiastical jurisdiction was a difficult task. The Church claimed and exercised jurisdiction, as of a spiritual nature, not alone over matters of ecclesiastical economy, but over matrimonial and testamentary causes and pledges, and was with difficulty prevented from appropriating the greater part of the province of contract. But its broadest claim was the correction of the sinner for his soul’s health. Under this head, along with the whole province of sexual morality, usury, and perjury came defamation. Contumelious words were among the various matters which had been embraced in Roman law under the title “injuria.” Injuria, in its legal acceptation, meant insult; but it was more comprehensive than the modern significance of the word. A person was insulted in many ways by direct force, as by assault and battery; or without direct force, as by shouting after him in the street so as to cause a crowd to follow him. Reproachful language which lessened one’s good fame was also an injury; and this class of injuries grew in ecclesiastical law into the distinct title “diffimation.” The Church, then, being answerable for the cleanliness of men’s lives, stayed the tongue of the defamer at once pro custodia morum of the community, and pro salute animæ of the delinquent. The usual ecclesiastical penance for the offence was an acknowledgment of the baselessness of the imputation, in the vestry room in the presence of the clergyman and church wardens of the parish, and an apology to the person defamed.1
William the Conqueror did not question the ecclesiastical jurisdiction. At the conquest all the tribunals were presided over by ecclesiastics, and for nearly a century thereafter many of the king’s judges were ecclesiastics. The Conqueror simply separated the ecclesiastical from the civil jurisdiction by a historic ordinance commanding that no bishop or archdeacon should thereafter hold pleas relative to ecclesiastical matters, as theretofore, in the county court. Shortly afterwards, however, the rivalry between the secular and spiritual jurisdictions began. One of the first limits put upon the Church’s pretensions to punish sin was the requirement that if the sin was also an offence which the temporal courts could punish, the spiritual judges were not to meddle with it. The first statute in which defamation is mentioned dates from the thirteenth year of Edward I. In specifying certain cases “wherein the king’s prohibition doth not lie,” it was provided: “And in cause of defamation it hath been granted already that it shall be tried in a spiritual court where money is not demanded.”1 That is, the temporal and spiritual courts would seem to have divided the cause of action, the forum depending upon whether money was demanded. This line of demarcation becomes very significant in after times; but apparently it bore no immediate fruit, for it is long before we find actions of defamation in the king’s courts. Indeed, as soon afterwards as the ninth year of Edward II it was enacted that corporal penance in defamation might be commuted for a money payment, “the king’s prohibition notwithstanding.”2 A statute of the succeeding reign, limiting the exercise of the spiritual jurisdiction so as not to deter from the prosecution of the offenders before the king’s justices,3 points the other way, and presages the long and bitter struggle between Church and State over the administration of justice.
Apart from the growing power of the king’s courts, the tyranny and corruption of the ecclesiastical courts had, long before the Reformation, aroused a very strong feeling of antipathy. Their inquisitorial procedure was little calculated to commend itself. Most of the cases were instigated by the obnoxious apparitors attending the various courts, who gathered in the gossip of the day, and retailed it to the court as a ground for denunciation and prosecution.4 Then, too, it is surprising that injured persons should have been content so long with the very limited satisfaction of seeing their defamers doing penance in a white sheet.1 These considerations doubtless contributed towards the ultimately successful aggression of the king’s courts. Before the Commonwealth the jurisdiction of the Church had been crippled.2 It survived in theory without any adequate means of enforcement,3 and was finally abolished altogether in the second decade of Victoria’s reign.4
Archdeacon Hale’s Precedents include a number of interesting causes of defamation during the period from 1475 to 1610. Out of some seven hundred causes collected, about six per cent concern defamation. As may be inferred from the fact that the vast majority of the cases collected relate in one way or another to sexual immorality, the majority of the slanders alleged are those which impute this offence.5 In three cases the defamation was in writing, but no distinction seems to have been taken on that ground; in one of the later cases it is expressly declared that no distinction is to be taken as to mere form.6
While as yet the bulk of the nation found a remedy for defamation in the seignorial and ecclesiastical courts, there was still another jurisdiction, during part of this time, open to a limited aristocracy, official or otherwise, and administered by the king’s council. This was the statutory offence known as De Scandalis Magnatum. The original statute, enacted in 1275, provided:
“Whereasmuch as there have been afore times found in the country devisers of tales . . . whereby discord or occasion of discord hath arisen between the king and his people or great men of this realm . . . it is commanded that none be so hardy as to tell or publish any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm; he that doth so shall be taken and kept in prison until he hath brought him into the court which was first author of the tale.”7
A subsequent act in the reign of Richard II recites the former act against “devisers of false news and of horrible and false lies, of prelates, dukes, earls, barons, and other noble and great men of the realm, whereby great discord hath arisen, and whereof, great peril and mischief might come to all the realm, and quick subversion and destruction of the said realm, if due remedy be not provided,” and then continues:
“It is accorded and agreed in this Parliament that when any such deviser is taken and imprisoned and cannot find him by whom the speech is moved, as before is said, that he shall be punished by the advice of the said council, notwithstanding the said statutes.”1
These statutes were construed with the generous comprehensiveness which characterized the activities of the king’s council.2 The criminal remedy was enforced by the council, sitting, according to Crompton, in the “starred chamber.”3 Although the statutes had also a civil aspect, the civil remedy was seldom used. The last action under these statutes was in 1710; but they were formally repealed only in recent times.4
The action De Scandalis Magnatum was of little importance in itself, but in its tendency and ultimate consequences it had a very significant bearing upon the law of defamation. Protecting none but the great men of the realm who, on account of their noble birth or official dignity, could not or would not demean themselves either by personal encounter or by resort to any other jurisdiction than that of their sovereign, these statutes are hardly to be taken as a recognition by the royal authority of the right to reputation. They were in fact directed rather against sedition and turbulence than against ordinary defamation. We know from their context and from contemporaneous history that their immediate cause is to be found in the plain speaking and homely wit of the Lollard rhymes current in the days of the peasants’ revolt. The political songs current in the Plantagenet times sounded the voice of the people in public affairs. Indeed, for centuries the song and ballad writers were the only spokesmen of the people in political affairs. It was they who gave voice to popular criticism, discontent and rejoicing, in a form, moreover, in which every mood of passion was embodied with a condensation of force and feeling to which the raillery of sadness of music added its own significance. It was with reference to such a time that one can appreciate the force of Fletcher’s well-known sentiment that the making of the people’s songs is a greater influence than the making of their laws.
The significance of the action De Scandalis Magnatum is, then, that it was directed against political scandal, and that the law was administered in the Star Chamber. This cognizance of defamation considered as a political and criminal offence was repeatedly confirmed, and as to particular cases, extended by subsequent statutes. It was a familiar jurisdiction, and one which constantly grew with exercise. Hence it is not surprising to find that by the time of Elizabeth the Star Chamber had assumed jurisdiction of cases of ordinary or non-political defamation, which it decided in the way of criminal proceedings. There was indeed, a measure of justification for this course. The duel was still a common method of vindication among those who did not come within the terms of the statutory remedy. Now the Star Chamber made every effort, in the interest of the public peace, to suppress duelling.1 But it might well feel that it was idle to prohibit this ancient remedy and offer no substitute. Therefore it took cognizance of both political and non-political defamation in the interests of public tranquillity.1
Finally we come to the king’s courts of common law, which, prior to the reign of Elizabeth, practically gave no remedy for defamation. This fact is, of course, at variance with modern ideas, according to which the administration of justice is regarded as the inevitable and exclusive function of the state. But a glance at the condition of Europe in the middle ages will show that state justice was then very feeble. Men were judged by their lords, by their fellow burghers, by their priests, but they were seldom judged by the state. In England the jurisdiction of the state grew more rapidly than elsewhere. The development of the system of writs, by means of which the king’s justices built up the jurisdiction of the royal courts, practically ceased with Henry III; henceforth judicial legislation proceeded only by the slow stages of decision and precedent. Edward I, however, carried on the process with a new conception. Law had been declared by kings, by landowners, by folks, by judges, by merchants, by ecclesiastics. By combining all these forces in legislation we get a law which is stronger, better, and more comprehensive than the separate laws which preceded it. For more than two centuries this conception of national law found a serious rival in the canon law, but with the Reformation the modern idea of law was realized.2
For the statement that pleas of defamation were not entertained in the king’s court we have express authority. The earliest mention of the offence in this jurisdiction occurs in a picturesque dispute between two Irish magnates, which had been removed in 1295 to Westminster, where the whole process was annulled for errors, foremost among which was the fact that the case had begun with a charge of defamation—“and it is not used in this realm that pleas of defamation should be pleaded in the king’s court.”3 The silence of the Year Books and of the Abridgments confirm this statement. In the Year Books, from the first year of the reign of Edward III to the last year of Henry VIII, a period of two hundred and twenty years, there are in all only ten cases of defamation; one in the time of Edward III, three under Edward IV, one under Henry VII, and five under Henry VIII. The oldest Abridgments, Statham’s (1494) and Fitzherbert’s (1563), do not mention the ‘action sur le cas pur parolx’; and Brooke’s Abridgment (1573) contains only two paragraphs under this head.1 This brings us to the reign of Elizabeth, which marks a turning point.
The king’s courts, then, did not usually entertain such actions. But, as already shown, this denial of a remedy in the king’s courts was no denial of a right. There were other courts where reputation was defended. Only as the old local courts fell into decay did denial of a remedy at Westminster come to be a denial of a right. This may serve to explain the few instances in which, in early times and under exceptional circumstance, we do come across the action in the king’s courts. The fact that when the action does first appear it is in the form of a special action on the case is quite conclusive that there was no remedy at common law prior to the statute of Westminster the Second. Prior to that time the right was probably adequately protected by the seignorial courts. When however, these local courts had fallen into decay, the question of royal jurisdiction would become more important. But by that time the task was not an easy one. The time had passed when a new form of action could be created without statute, which made it necessary to discharge the new function by means of an action on the special case for words, under the statute of 13 Edward I.2
The principal difficulty doubtless arose from the fact that the ecclesiastical courts, having from remote times corrected the slanderer for his soul’s health, had, owing to the decay of the local courts, come to be regarded as having, in some measure, an exclusive right to deal with defamation. The statute Circumspecte agatis, passed in the same year as the statute of Westminster the Second, is an indication of the demand, which had even then become pronounced, that more definite bounds should be set to the ecclesiastical jurisdiction. But the Church strenuously resisted all such attempts. The common law courts resorted to prohibitions. The ecclesiastical courts, on their side, wielded the powerful weapon of excommunication. The protracted struggle has ended in the complete victory of the secular jurisdiction only in our own day. The law of defamation, in common with most of the other subjects originally within the spiritual jurisdiction, still bears the scars of this contest, and some of its doctrines can be explained in no other way.
However acquired, cases of defamation begin to appear in the king’s courts soon after the last Year Books. During the reigns of Elizabeth, James I, and Charles I, the reports teem with such cases, and the bulk of litigation in defamation at once assumed very large proportions.
It was during this period that the rules of actionability were formulated which in aftertimes came to be applied exclusively to oral defamation. There was as yet, of course, no distinction at common law between slander and libel. The law thus evolved by no means covered all defamatory words; only certain specific imputations were actionable. The principle of selection was founded partly upon the character of the imputation, partly upon the consequences arising from it. The exceptions to unbridled license of speech founded upon the nature or substance of the charge were: imputations of an indictable offence or crime; imputations of having certain contagious disorders, i. e., syphilis, leprosy, and the plague; any imputation affecting a man’s reputation for skill and address in his business, office, trade, profession, or occupation, which tended to cause his position to be prejudicially affected. The other exception, founded upon consequences, allowed an action for any imputation which had in fact directly caused special damage.1
How the law came to be thus circumscribed is not entirely clear. The conditions under which the common law jurisdiction was acquired—i.e., the struggle with the ecclesiastical courts, and the necessity of exercising jurisdiction through the medium of an action on the special case for words, probably lie at the root of the matter.2 In a general way the early cases throw some light. Naturally the law seems new and unsettled. The judges assert that many kinds of defamatory imputations are merely spiritual, and as such are within the legitimate province of the courts Christian, while others are strictly temporal. It is curious to find the judges thus early discouraging the action by the application of the most absurd subtleties and refinements. Slanders were construed like legal writs. The judges were guided by the principle which they called mitior sensus, according to which language which could by any process of scholastic ingenuity be tortured into a harmless significance went without remedy. The probable explanation of this attitude is the large amount of litigation of this kind, which perhaps biased the judges against the action. Coke expressed the prevailing feeling in Croft v. Brown:
“We will not give more favor unto actions upon the case for words than of necessity we ought to, where words are not apparently scandalous, these actions being now too frequent.”3
The judges seem to have begun to draw a distinction between words actionable per se and those actionable only on proof of special damage in the exercise of a discretionary power of allowing or disallowing actions. Early in the seventeenth century it was stated that
“where words spoken do tend to the infamy, discredit or disgrace of the party, there the words shall be actionable.”1
And nearly a century later Holt observed that
“it was not worth while to be learned on the subject; but whenever words tended to take away a man’s reputation he would encourage actions for them, because so doing would much contribute to the preservation of the peace.”2
But their discretion came at length to be exercised according to fixed rules, and these rules became fixed law.
The conditions and the habits of thought prevailing in early society afford some explanation why it was not imperatively necessary to provide legal redress for slanders and insults of such a nature as to injure the character or hurt the sensibility, unless they were also such as to result in legal damage to the person against whom they were directed. Men were not more courteous by nature or inclination then than now. They were restrained by a code which formed no part of the legal system, but which was nevertheless a very potent instrument. Men could and did avenge themselves without calling in the assistance of the law, and public opinion for centuries sanctioned the “code of honor.” But with the progress of civilization it became apparent that dueling was not only foolish and vicious in principle, but a menace to the public peace as well. As the sanction of public opinion was gradually withdrawn, the laws for the preservation of the peace were continually strengthened. But in the final result, the law suppressed the instincts of nature and gave no substitute.3
Thus stood the law when the rapid development of the art of printing aroused the absolute monarchy to a keen sense of the danger of this new method of diffusion of ideas. In early times libels must have been comparatively rare and harmless: rare because few could write, harmless because few could read. The invention of printing, however, gave a new impulse to composition. Caxton had set up his press at Westminster in 1476, and the art spread rapidly during the sixteenth century. From the very first Church and State alike assumed to control the press, as they had previously regulated the diffusion of manuscripts.
The Church had long suppressed the diffusion of ideas which it deemed pernicious. The first general council of Nice forbade the works of Arius, and subsequent councils had condemned the works of Origen and others. Imperial power co-operated by burning condemned books. But this total destruction of pernicious books was no longer feasible after the invention of printing. The Church endeavored to forestall publication by prohibiting the printing of all works save such as should be first seen and allowed; publications without such license were burned, as before. As this method did not meet with complete success, it was supplemented by indices or catalogues of books, the reading of which by the faithful was prohibited. Such lists were issued in many parts of Europe by sovereigns, universities and inquisitors during the sixteenth century, beginning with that issued by Henry VIII in 1526. Pope Paul IV issued an index in 1559, but the papacy as such took no part in the process until the Council of Trent, the outcome of which was the famous index of Pius IV, in 1564.
In England the censorship of the press passed with the ecclesiastical supremacy to the crown. The censorship became part of the royal prerogative, and the printing of unlicensed works was visited with the most severe punishment. Printing was further restrained by patents and monopolies. The privilege was confined, in the first instance, under regulations established by the Council in Mary’s reign, to the Stationer’s Company,1 which had power to seize all other publications; and the number of presses and the whole matter of printing was strictly limited in all its details. Under Elizabeth the censorship was enforced by still more rigorous penalties, including mutilation and death. All printing was interdicted elsewhere than in London, Oxford and Cambridge; nothing whatever was allowed to be published until it had been first “seen, perused and allowed” by the Archbishop of Canterbury or the Bishop of London, except only publications by the queen’s printers, appointed for some special service, or by law printers, for whom the license of the chief justices of either bench was sufficient. This was the situation when, at the accession of James I, all these repressive measures were found to be inadequate to suppress the rising tide of public opinion. The theological controversies of the sixteenth century were passing into the political controversies of the seventeenth. New forms of literature had arisen. The heavy folio, written for the learned, was succeeded by the tract and the flying sheet, to be read by the multitude. Some effective regulation was imperative. The forced construction of the various treason statutes was too cumbersome as an instrument of suppression. The civil action for defamation, then in its infancy, was, of course, entirely inadequate.
The task was at length undertaken by the Star Chamber. The character of this tribunal rendered its selection almost inevitable. It was composed of the highest dignitaries of Church and State,1 and it exercised practically unlimited authority. Formally constituted a court of criminal equity by Henry VII, the Star Chamber’s jurisdiction was based upon the theory which had become familiar in the civil law through the operations of the court of Chancery. There were wrongs which could not be effectively remedied by the ordinary courts of law, and which could not be overtaken immediately by legislation. The venerated forms of action did not cover all classes of wrongs and crimes; nor was even-handed justice always administered between the weak and the powerful. It was necessary that there should be a court with the unrestrained power to do substantial justice. The Star Chamber was thus empowered. It disregarded forms; it was bound by no rules of evidence; it sat in vacation as well as in term time; it appointed and heard only its own counsel, thereby not being troubled with silly or ignorant barristers, or such as were idle and full of words. Moreover, it was natural that the members of this tribunal should exercise formal jurisdiction over a matter which they had so long attempted in various ways to control, and with the pernicious effects of which they were deeply impressed.
Jurisdiction over this new and alarming form of scandal was assumed, then, by the Star Chamber. What law should govern it? The law administered by the common law courts was of course out of the question. Its researches were quite naturally directed by its ecclesiastical members to that other great system of law in which they had been trained; and, finding it to the purpose, the court boldly imported the Roman criminal law. The new law was first set forth in 1609, in the case De Libellis Famosis,1 as reported by Coke, and, later, was more fully stated by Hudson in his Treatise on the Star Chamber.2
Now the Roman law had two sets of provisions for defamation—the comparatively mild law of injuria, and the severe provisions of the libellus famosus. In early Roman law, as in most primitive systems, verbal injuries were treated as criminal or quasi-criminal offences. The essence of the injury was not the pecuniary loss, which could be compensated by damages, but the personal insult, which must be atoned for—a vindictive remedy which took the place of personal revenge. We find reference, then, first, in the Twelve Tables, to the libellous chant or song, which is the form of defamation obtaining widest currency, and therefore most keenly felt, in early society. This was severely punished as a crime. Minor offences of this nature came under the general conception of injuria, which included ultimately every form of direct personal aggression, whether with or without force, which involved insult or contumely.
In later Roman jurisprudence verbal injuries were dealt with in the edict under two heads. The first comprehended defamatory and injurious statements which were made in a public manner (convicium contra bonos mores). The essence of the offence in this case lay in the unwarrantable public proclamation, in the contumely which was offered to a man before his fellow citizens. In such cases the truth of the statements was no justification for the unnecessarily public and insulting manner in which they had been made. The second head included defamatory statements which were made in private. Since the offence in this case lay in the imputation itself, not in the manner of its publication, the truth was a complete defence; for no man had a right to demand protection for a false reputation. The law thus aimed to give ample scope for the discussion of personal character, while it forbade the infliction of needless insult and pain. The remedy for verbal injuries was long confined to a civil action (actio æstimatio) for a money penalty, which was estimated according to the gravity of the case, and which, although vindictive in character, included the element of compensation. Imperial legislation subsequently established supplementary criminal actions under which certain kinds of defamation were punished with great severity. These were the libelli famosi, particularly epigrams and pasquinades, which, being in their nature anonymous and scurrilous, were regarded as peculiarly dangerous and were visited with severe punishment, whether true or false. The unnecessarily public and offensive manner of their publication (they were generally scattered about the streets) precluded justification.1
We find, therefore, a distinction based upon the manner and extent of publication, but none between speech and writing; for the evil song of an early day coincides with the anonymous pasquil of later times in constituting the criminal offence. The crime was not based upon the form of the publication, but upon the character of the matter published, the extent of its diffusion, and its anonymous nature.
The Star Chamber, as the title of Coke’s case indicates, adopted provisions of the libellus famosus. The action arose out of an “infamous libel in verse” by which the Archbishop of Canterbury, deceased, and the then bishop of that diocese, were “traduced and scandalized.” The principal “points resolved” were the following:
“Every libel (which is called libellus, seu infamatoria scriptura) is made either against a private man, or against a magistrate or public person. If it be a private man it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience; if it be against a magistrate, or other public person, it is a greater offence; for it concerns not only the breach of the peace, but also the scandal of government; for what greater scandal of government can there be than to have corrupt or wicked magistrates to be appointed and constituted by the king to govern his subjects under him?”
After holding, without citing any authority, that
“a libeller shall be punished either by indictment at the common law, or by bill, if he deny it, or ore tenus on his confession in the Star Chamber, and according to the quality of the offence he may be punished by fine or imprisonment, and if the case be exorbitant, by pillory and loss of his ears,”
the report continues:
“It is not material whether the libel be true, or whether the party against whom it is made be of good or ill fame; for in a settled state of government the party ought to complain for every injury done him in an ordinary course of law, and not by any means to revenge himself, either by the odious course of libelling or otherwise: he who kills a man with his sword in a fight is a great offender, but he is a greater offender who poisons another; for in the one case, he who is openly assaulted may defend himself, and knows his adversary, and may endeavor to prevent it; but poisoning may be done so secretly that none can defend himself against it; for which cause the offence is the more dangerous, because the offender cannot easily be known; and of such a nature is libelling, it is secret and robs a man of his good name, which ought to be more precious to him than his life, and difficilimum est invenire authorem infamatoriae scripturae; and therefore when the offender is known, he ought to be severely punished.”1
Hudson’s treatise begins with a description of the various ways in which a person might be libelled; he adds that the publishers of libels are as severely punished as the makers.
“Therefore, to hear it sung or read, and to laugh at it, and to make merriment with it, hath ever been held a publication in law.”
He points out
“one difference, which standeth with the rules of the law and reason, and which, under favor, I have ever conceived to be just. That upon the speaking of words, although they be against a great person, the defendant may justify them as true; as in all actions de scandalis magnatum, which are as properly to be sued in the Star Chamber as in any other court, and he shall be there received to make the truth appear. But if he put the scandal writing, it is then past any justification, for then the manner is examinable and not the matter.”
The case De Libellis Famosis is the formal starting point of the English law of libel. By it a new form of actionable defamation, based upon mere form, was introduced in the law. Apart from the disposition of the authorities to adopt the most stringent methods of suppression, there were some plausible grounds for this new doctrine of criminal libel. It was, of course, aimed directly at printing, although it included writing. Writing had been for centuries so rare an accomplishment that much weight was attached to anything written. Before the invention of printing libels were generally published by scattering papers containing them in the streets, or by posting them in public places. Such libels were generally against the government or those in authority. By the Theodosian Code the publication of such libels seems to have been looked upon as treason, and was punished as a high crime. In England such offences were generally brought within the generous scope of the law of treason and sedition. Coke mentions two cases of libels upon private individuals in the reign of Edward III, and in both cases the libeller was criminally punished. Now came a method of dissemination whose potentialities were unlimited, with all the dangers of anonymity, and in a more permanent form than writing. Moreover, seditious libel (and all libels were deemed seditious) is in its nature a sort of attempt, and the Star Chamber applied the doctrine that attempts and conspiracies to do anything unlawful were substantive offences.1
But it is apparent that the Star Chamber adopted the Roman law to its own use without regard to Roman limitations and with certain additions of its own, chief among which was the fundamental principle that libel is punishable as a crime because it tends to a breach of the peace. The Roman criminal law was directed against anonymous pasquinades. When, therefore, the Star Chamber sought to apply this law to a publication which was not anonymous, its inapplicability must have been at once pointed out. That this was done is made plain from what Hudson says about two gross errors that have crept into the world concerning libels.
“That it is no libel if the party put his hand unto it; and the other, that it is not a libel if it be true; both which have long been expelled out of this court. For the first, the reason why the law punisheth libels is, for that they tend to raise a breach of the peace, which may as well be done, and more easily, when the hand is subscribed than when it is not. And for the other, it hath ever been agreed, that it is not the matter but the manner which is punishable: for libelling against a common strumpet is as great an offence as against an honest woman, and perhaps more dangerous to the breach of the peace: for as the woman said she would never grieve to have been told of her red nose if she had not one indeed, neither is it a ground to examine the truth or falsehood of a libel; for that takes away subjectum quaestionis, and determines it to be no libel by admitting the defendant to prove the truth.”
This principle of the tendency of libels to a breach of the peace originated with the Star Chamber. It was not only a very shrewd addition to the law, as an instrument of suppression, but there was undoubtedly some semblance of the truth in the statement, as applied to the condition existing prior to the formation of an organized public opinion. While the law developed only through the pressure of outward needs, the statement of an unwelcome truth concerning another did not serve the useful public purpose that it does now because it did not reach the public eye. But it did undoubtedly tend in a semi-civilized state of society to stir the hot blood of those against whom it was made.1 Moreover, it must be remembered that the preservation of the public peace was still a very difficult and serious matter.
The Star Chamber, then, having taken over jurisdiction of libel with particular reference to discussion of affairs of Church and State, the idea that such libels were crimes and as such past justification, was formally introduced in English law; a tribunal of which common law judges were constituent members, drew a real distinction between spoken and written defamation of a political kind. Through its jurisdiction as a court, and as the representative of the royal prerogative, the Star Chamber was in immediate control of the press during the reigns of James I and Charles I, and suppressed political and religious discussion with the utmost severity. By its famous ordinance of 1637 the matter of printing was regulated anew. The number of master printers was limited to twenty, who were to give sureties for good behavior, and were to have not more than two presses and two apprentices each; and the number of letter founders was limited to four. The penalty for practising the arts of printing, or making any part of a press or other printing materials, by persons disqualified or not apprenticed thereto, was whipping, the pillory, and imprisonment. Even books which had been once examined and allowed were not to be reprinted without a fresh license, and books brought from abroad were to be landed at London only, and carefully examined by licensers appointed by the Archbishop of Canterbury and the Bishop of London, who were empowered to seize and destroy such as were seditious, schismatical or offensive. Periodical searches of booksellers’ shops and private houses were also authorized and enjoined.
Although the Star Chamber was abolished by the Long Parliament in 1640, the judges, the law, and the censorship remained largely the same. By orders of the Long Parliament in 1642 and 1643 the licensing system of the Star Chamber was practically continued. Shortly after the Restoration the licensing system was placed upon a legal basis by statute.1 This act expired in 1679, and does not appear to have been immediately renewed, although the censorship was continued during the remainder of this reign. Under James II the licensing act was twice renewed by statute,2 but lapsed finally in 1695. The incorporation of the Star Chamber doctrine of libel into the common law seems to have been coincident with the waning power of the censorship. It is not at all surprising that Restoration judges, imbued with the Star Chamber doctrines, replaced it with an equally efficient weapon. In 1680, less than a year after the expiration of the Restoration statute, Chief Justice Scroggs announced that the judges had twice declared unanimously, when summoned by the King’s command to give their opinions as to what should be done to regulate the press, that, besides publications scandalous to the government or to public or private persons, all writers of false news, though not scandalous or seditious, were indictable.3 Later in this year the same judge repeated this statement in even more comprehensive terms:
“We did all subscribe that to print or publish any newspaper or pamphlet of news whatsoever is illegal; that it is a manifest intent to a breach of the peace. . . . and that is for a public notice to all people, and especially printers and booksellers, that they ought to print no books or pamphlets of news whatsoever without authority.”1
It is to this juncture that we must look for the creation of that doctrine, first announced in the common law courts by Hale, that although words “spoken once” would not be actionable, “yet they being writ and published” become actionable. The later Roman law of the libellus famosus thus become part and parcel of the English common law. The formal distinction was apparently introduced into the civil law by the same process of reasoning that led the Star Chamber to assume cognizance over non-political defamation. The Star Chamber had been abolished; press licensing was waning. How were these non-political, non criminal libels to be restrained if men no longer had the vindication of the duel? The difficulty was met by the creation of a new tort, written defamation.2
The civil doctrine of libel was first announced by Lord Chief Baron Hale in King v. Lake in the Exchequer, in 1670.3 There are a few earlier cases in which the defamation was in writing, but on no occasion was this regarded as a title to a remedy if the written matter did not come within recognized exceptions.4 King was a barrister who claimed to have been “damnified in his good name and credit and profession” by reason of the fact that Sir Edward Lake had written of a petition to Parliament drawn up by King that it was “stuffed with illegal assertions, ineptitudes and imperfections, and clogged with gross ignorances, absurdities and solecisms.” Hale held that “although such general words spoken once without writing or publishing them would not be actionable, yet here, they being writ and published, which contains more malice than if they had been once spoken, they are actionable.” In Harman v. Delany,1 the court held that
“words published in writing will be actionable (though not so when barely spoken) which would not be so from a bare speaking of the words, because libel perpetuates and disperses the scandal.”
From this time on the series of cases establishing the new tort increases. The matter may be said to have been finally determined by the judgment of the Exchequer Chamber in the case of Thorley v. Lord Kerry, in 1812.2 In this very important case the whole subject was ably argued by eminent counsel. Sir James Mansfield, in delivering the judgment of the court, reluctantly admitted that “the distinction has been made between written and spoken slander as far back as Charles the Second’s time.”
“I do not now recapitulate the cases,” he said in conclusion, “but we cannot in opposition to them venture to lay down at this day that no action can be maintained for words written for which an action could not be maintained if they were spoken. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.”3
The historical development of actionable defamation has now been traced to the time when the distinction as to form became fixed. Written defamation is libel; spoken defamation is slander. Libel is a crime as well as a tort; slander of a private individual may be a tort, but is no crime. Any written words which injure one’s reputation are libellous; but many words which would be actionable if written are not actionable if merely spoken. In the case of slander a plaintiff must satisfy the jury that the words spoken impute the commission of a crime, or the presence of certain contagious disorders, or that they disparage him in the way of his office, profession or trade, in all other cases he must prove special damage, that is, that he has sustained some pecuniary loss as a direct consequence of the utterance of the words complained of.
RESPONSIBILITY FOR TORTIOUS ACTS: ITS HISTORY1
Not infrequently do the records of the related laws serve as the sole resource, or the safest one, for a methodical explanation of dark and doubtful topics in the legal development of our own native system.
Brunner:Deutsche Rechtsgeschichte, i. 2.
“NO conception can be understood except through its history,” says the Positivist philosopher; and of no legal conception in Anglo-American law is this more true than of the notion of Responsibility for Tortious Acts. By this phrase is indicated that circumstance or group of mental circumstances attending the initiation and eventuation of an acknowledged harmful result, which induces us to make one person rather than another (or than no one at all) civilly amenable to the law as the source of the harmful result (and independently of whether this person can show some recognized justification for the harm). It is this notion whose history we find it possible to trace back in a continuous development in our Germanic law, without a break, for at least two thousand years.
To get a starting-point, let us look back from present principles. The law to-day, so far as we are entitled to take it as standing on a rational basis, distinguishes classes of cases which may be roughly generalized for present purposes as follows: (1) Cases where the source of harm is pure misadventure, as where a customer is handling a supposed unloaded gun in a gun-store, and it goes off and injures the clerk; (2) Cases where no design to injure exists, but a culpable want of precaution and foresight is found; (3) Cases where no design to injure exists, and yet no inquiry into the actor’s carefulness is allowed,—in other words, where he does the specific harm-initiating act “at his peril,” as where he fires a gun in the street, or sells goods which prove to be those of another; (4) Cases where actual design to produce the harm exists.1 Now, the thing to be noted is that the primitive Germanic law knew nothing of these refinements; it made no inquiry into negligence, and it based no rule on the presence or absence of a design or intent; it did not even distinguish, in its earlier phases, between accidental and intentional injuries. The distinctions of to-day stand for an attempt (as yet more or less incomplete) at a rationalized adjustment of legal rules to considerations of fairness and social policy. But the indiscriminate liability of primitive times stands for an instinctive impulse, guided by superstition, to visit with vengeance, the visible source, whatever it be,—human or animal, witting or unwitting,—of the evil result. Both these extremes are fairly clear; it is the transition from one notion to the other which forms the interesting and complex process.
In endeavoring to realize the nature of the primitive canons of Responsibility, one must take into consideration the essentially superstitious and unreasoning spirit which pervaded the jural doings of primitive society; for the notion here dealt with was only one of the vehicles of his expression. One need not here to call to mind in detail the characteristics of primitive culture;1 only certain of the more germane may be noted. The instinct of revenge, as an aggressive reaction from inflicted pain, preceding any developed sense of justice;2 the prevalence of clan-organization and clan-responsibility;3 the idea of transgression as associated with ceremonial observances;4 the implicit belief in taboo and curse;5 the propitiation of ghosts and deities by gifts and sacrifices;6 the sense of pollution and contamination (as by the touching of blood or of a corpse);7 the inheritance of guilt; the appeal to a decision of the Deity or of chance in litigation (as by the subjection to ordeals, the swearing of exculpatory oaths, the engaging in formal combat);8 the arbitrary formalism of words and phrases in pleading and oaths,9 —these give the tone to the times. In the light of these it is easy to understand that the notion of Responsibility for Harmful Results was determined largely by crude primitive instincts of superstition,—that our ancestors were satisfied with finding a visible source for the harm and following out their ideas of justice upon it.
It must be remembered, moreover, that we are here dealing with a sentiment characteristic of primitive justice everywhere. It was, beyond question, universal. It appears not only in the strictly Germanic peoples, but in the records of all the race-stocks, however mixed, of post-Christian Europe,—the Scandinavian,1 the Flemish-Dutch,2 the Celtic,3 the French,4 the Spanish,5 the Italian,6 the Slavic,7 the Hungarian.8 It is found in earliest Greece9 and earliest Rome.10 It is equally marked in the Semitic races—Jews1 and Mohammedans—,2 as well as their predecessors in Chaldea and Egypt;3 and in the totally unrelated Hindus4 and Chinese,5 as well as the Japanese.6 And in the primitive tribes still surviving everywhere—in Africa, Australia, America, and Asia—it is still observable.7 In the two following passages, its general bearing is broadly stated:
1884, A. H. Post, Die Grundlage des Rechts und die Grundguege seiner Entwickelungsgeschichte, §§ 39, 40, pp. 350, 354:
“All wrongs are originally violations of rights between one clan and another. Every wrong done by an individual creates an obligation for his clan towards that of the injured person. There is thus no doctrine, in civil wrongs, about intent, negligence, guilt, capacity, voluntariness, mistake, fear, or the like. The whole point of view of individual mental states which dominates our modern tort-law (a law essentially of individual rights and duties) is alien to primitive law. Each clan is liable to the other for every injury suffered, whether it be done by adult clan-members or by women, children, animals, or lifeless objects belonging to the clan, and whether the wrongdoer be blamable or be merely the involuntary tool of external forces. It is only with the dissolution of the clan-organization that the individual aspect of wrongs comes into consideration; and at the same time the wrongdoer’s mental state (wholly ignored in clan-law) comes for the first time into the foreground. . . . With the disappearance of the clan-organization and the development of the State, by which the inter-tribal union grows into a community held together by a higher social power, and in which the individual is accorded a more or less personal sphere of rights, there arises gradually the notion of personal culpability as a presupposition of personal responsibility for wrongs. One of its first expressions is in the idea that harm caused by accident is not to be so stringently treated as an intentional harm. Though the intentional harm would justify a blood-feud, the accidental one can be compounded by expiation-money; and wherever the injured party’s duty to accept expiation-money comes to be recognized, this is found first applied to accidental harms.
“A further mark of this gradual transition to personal culpability appears in the diminution of the fine for negligent harms as compared with that for intentional ones; and also in the application of the negligence-fine to harms done by the women, children, slaves, animals, and lifeless objects belonging to the clan, or by a blood-relation not himself responsible. . . . To this distinction between intentional and unintentional harms the distinction appears to be originally due between criminal and civil law. The intentional wrong becomes the crime, by which the doer is made corporally responsible. The unintentional wrong creates only an obligation to give redress; only the property of the wrongdoer is thereby made liable. It is only gradually that certain negligent misdeeds are made punishable as crimes, and that certain intentional wrongs are treated merely as calling for redress. . . .
“Moreover, a special grouping of negligent wrongs is quite alien to the early legal systems. Only intentional and unintentional acts are distinguished. The unintentional includes the negligent as well as the unavoidable, but without discriminating them. . . . With the rise of the conception of culpability as the presupposition of a wrong, there develops a deep and remarkable change in legal ideas. In the primitive the social order is regarded merely from a mechanical point of view and the responsibility for harm is placed on him who caused it, regardless of whether he willed it or was only the medium of a higher force; but now the mental side of the social union comes strongly to the front. There is thus prepared the basis for a psychological theory of compromise or settlement. The principle that without moral culpability no liability arises either to make compensation or to suffer punishment develops necessarily a body of doctrine about guilt, capacity, intent, negligence, and thus to distinctions between voluntary and involuntary acts. The mechanical aspect of the social order, originally the marked one, now begins more and more to be ignored, and the mental aspect, on the other hand, comes to be exclusively emphasized.”
1888, P. F. Girard, Les actions noxales, in Nouvelle revue historique du droit français et étranger, XII, 38:
“There is a phenomenon which one can discern throughout all antiquity,—that is, vengeance, the physical, unreasoning emotion, which drives the victim of an injury to a violent reaction against the immediate author of the injury. He who regards himself as offended against, takes vengeance for the offence as he will and as he can, alone or with the help of others, recognizing only the brute fact that he has suffered, and dominated by a feeling of resentment measured solely by the harm he has undergone. . . . The victim of the harm knows nothing but the harm done to him. He does not concern himself with the intent of the doer. . . . He therefore revenges himself for the harm-causing act, even though it may have been unintentional. . . . Moreover, for the same reason, the victim takes his revenge even where the immediate author of the harm is not capable of intending it,—where it is not a human being, but an animal, or an inanimate object.”1
In this particular field, too, there are numerous manifestations, all akin. The doer of a deed was responsible whether he acted innocently or inadvertently, because he was the doer;2 the owner of an instrument which caused harm was responsible, because he was the owner, though the instrument had been wielded by a thief;3 the owner of an animal, the master of a slave, was responsible because he was associated with it as owner, as master;4 the master was liable to his servant’s relatives for the death, even accidental, of the servant, where his business had been the occasion of the evil;1 the rachimburgius, or popular judge, was responsible for a wrong judgment, without regard to his knowledge or his good faith;2 the oath-helper who swore in support of the party’s oath was responsible, without regard to his belief or his good faith;3 one who merely attempted an evil was not liable because there was no evil result to attribute to him;4 a mere counsellor or instigator of a wrong was not liable, because the evil was sufficiently avenged by taking the prime actor,1 and where several cooperated equally, a lot (frequently) was cast to select which one should be amenable;2 while the one who harbored or assisted the wrongdoer, even unwittingly, was guilty, because he had associated himself with one tainted by the evil result.3 Of these various forms of the primitive notion which determined responsibility, we are here concerned with only a few,—those that have a more or less intimate connection with later doctrines of the English law of torts, and are therefore for us more worth tracing from early times.
These may be, for convenience, grouped into four classes, each one of which will be to better advantage followed out separately,—to be distinguished according as the harmful results may be traced back to (a) a personal deed; (b) an animal; (c) an inanimate thing; (d) a servant or slave. It will be convenient also to take up first the general Germanic notion, and follow it down to, say, the Norman Conquest, and then to keep to English soil, and trace down the later forms. As it happens, this division falls in fairly with epochs of doctrinal change.4
We have, then, to deal with the primitive notion which instinctively visits liability on the visible offending source, whatever it be, of a visible evil result. The notion, as applied to persons, is that of the schædliche Mann, a person from whom some evil result has proceeded.1 It can best be illustrated in advance by two instances, one drawn from a well-known tale in the Northern mythology, the other from mediæval Frisian chronicles:—
“Baldur the beautiful was beloved by all the gods, and Frigga had exacted an oath from all things—fire, water, stones, trees, and all—not to harm Baldur; for Baldur had dreamed of his own death. Then the gods, his safety assured, began in fun to pelt him with stones, clubs, and battle-axes, and found him indeed invulnerable. But Loki the jealous was vexed because Baldur was not hurt; and going in disguise to Frigga, he learned that the mistletoe alone had not been sworn, for it seemed too feeble a plant to do harm. Then Loki went up to Hodur, the blind god, who had been standing apart, for he had nothing to throw. He could not see to aim, so Loki gave him the mistletoe twig and guided his hand, and the twig flew, and struck Baldur lifeless. Then the other gods were for laying strong hands on the murderer; but they were in a sacred place. And Hodur fled. And Odin said, ‘Now, who will wreak vengeance on Hodur, and send Baldur’s slayer to Hades?’ The avenger was Wali, Baldur’s younger brother, who washed not his hands and combed not his hair until he had fulfilled his vengeance and smitten to death the slayer of Baldur.”2
A clearer case of innocence, one would think, in these days, could hardly be made out; but not so by the tests of our ancestors.—Next, an example showing an exceptionally late survival of these ideas, and at the same time the transition to different standards:—
“Owen Alwerk was brewing beer. During his absence the child of Swein Pons came in and stood by the kettle. The kettle slipped from its hook, and the liquid burned the child so that it died on the third day. The relatives of the child pursued Alwerk, who fled to the house of a friend for refuge. The master of the house opposed the entrance of the pursuers, and an affray ensued, in which the master by inadvertence killed his own nephew. The affair was laid before six men as judges; and they decided at first that Alwerk must pay the head-money for the dead child and for the dead nephew, and must besides make a pilgrimage to Rome. But Alwerk opposed the judgment, and to such a good purpose that they altered it to this effect,—that he should be absolved without more from the child’s death, and from the nephew’s if he swore that he did not urge on the master of the house to fight.”1
With these preliminary illustrations of the attitude of mind we are dealing with, we may take up, in the order of topics already named, the primitive ideas for the exposition of which we are indebted to the great Brunner.
Harm connected with a Personal Deed
It is not possible to draw hard-and-fast lines in tracing the stages of development; we can simply note that there were several stages, and point to particular rules or passages as illustrating approximately this or that successive form.
1. Of the primitive form of absolute liability, then, we find a few comparatively late traces; though, as Brunner points out, the fact of the necessity for an express mention of a prohibition or a penalty in a law is often an indication that the popular regard for the principle involved is on the wane:
Lex Bavariorum, 19, 6.—“Who injures the corpse of a man whom another has killed, either by cutting off the head or the ear or the foot, or by otherwise drawing the slightest blood, pays a fine of twelve shillings.” The example then given is this: The corpse of a murdered man is discovered by birds of prey, who settle upon it to devour it; a man sights them and draws bow at them, but strikes the corpse so that it is wounded: he shall pay the fine.
Westgothic Law.1 —The rule of Wamba: “Ut quicumque deinceps occiderit hominem, si volens aut nolens homicidium perpetravit, . . . in potestate parentum vel propinquorum defuncti tradatur.”
Roger of Sicily’s Law (1100-1150).2 —“Qui . . . lapidem ad aliud jecit hominemque occidit, capitali sententia feriatur.” The notable thing is that the first part of the law is a copy of the Lex Cornelia de sicariis; but liability is substituted for nonliability, and the above is added.
Anglo-Saxon Law.—(1) Beowulf (Chronicles) v. 2436 (ed. Heyne): the story of King Hredel, whose second son, Haedcyn, unfortunately killed his brother by an arrow which went wide of the mark. The death of the slayer was required in expiation; and the king so mourned at the untimely loss of his two sons that he took his own life. (2) LL. Henry I. (so called) 90, 11: “Legis enim est, qui inscienter peccat scienter emendet, et qui brecht ungewealdes [unintentionally] bete gewealdes, . . . [e. g.] si alicujus equus, ab aliquo stimulatus vel subcaudatus, quamlibet percuciat.”
It may be noted here that the proceeding of attaint was only a later form of the same early notion. In early times it was a general custom, where adultery or the like was discovered, to slay every living thing within the house, whether man or beast.3 The legal visitation of the sins of the fathers upon the children was one of the latest survivals of this idea.4
2. As times change, and superstition begins to fade, the notion of “misadventure,” “ungefaehr,” is hazily evolved, and facts of the sort are regarded as ground for an appeal to the king or the lord on the offender’s behalf. The strict law is thus regarded as requiring his punishment; but no vengeance can be wreaked upon him, no blood-feud started by the members of the victim’s family:
Holland.—In 1425 Aelwyn, a citizen of Delft, had “by ongevalle ende onwetende”1 killed another. The case went to the lord, Philip of Burgundy, who granted a pardon: “We hold the said Aelwyn quit and forgiven by this letter of all wrong and misdoing which he has done against us and our lordship, and we give him again his life and goods, which he thereby should have forfeited to us.”2
France.—(1) Coutumes de Clermont en Beauvoisis (1200+):3
“In case of accidents happening by mischance, in such cases pités et miséricorde ought rather obtain instead of stern justice.” When a man in turning his wagon injures another, “it is a case of mischance, and the wagoner should be shown mercy, if it does not appear that he managed it with a malicious purpose of injuring the other.” If one is separating two quarrellers, and accidentally injures the one who is his friend, “let mercy be shown him.” (2) Somme Rurale:4 Under the head “d’occire autre par cas d’aventure,” all such cases are said to fall under the penalty of death, and to need remission by the prince.
England.—(1) Anglo-Saxon laws, quoted post. (2) Bracton, De Legibus: “Crimen homicidii, sive sit casuale vel voluntarium, licet eandem pœnam non contineant, quia in uno casu rigor, in alio misericordia” (f. 104 b; also 141 b). (3) Stat. Gloucester (6 Ed. I., 1278) c. 9: If one kills another in defending himself or by misadventure, he shall be held liable, but the judge shall inform the king, “et le roy lui en fra sa grace, s’il lui plaist.” (4) Fleta5 repeats the rule of the statute. (5) Early cases in the King’s Court: (1214) “Roger of Stainton was arrested because in throwing a stone he by misadventure killed a girl. And it is testified that this was not by felony. And this was shown to the king, and the king, moved by pity, pardoned him the death. So let him be set free.”1 (1225) “Mabel, Derwin’s daughter, was playing with a stone at Yeovil, and the stone fell on the head of Walter Critels, but he had no harm from the blow; and a month after this he died of an infirmity, and she fled to church for fear, but [the jurors] say positively that he did not die of the blow. Therefore let her be in custody until the king be consulted.”2
It is to be noted that a killing done in self-defence was regarded as one of those which required to be pardoned in this way by the king; and this notion long left its impress on English criminal law:3
Early Cases.—(1221) “Howel, the Markman, a wandering robber, and his fellows assaulted a carter and would have robbed him; but the carter slew Howel, and defended himself against the others and escaped them. And whereas it is testified that Howel was a robber, let the carter be quit thereof. And note that he is in the parts of Jerusalem, but let him come back in security, quit as to that death.”4 Note that there is here no resort to the king’s pardon, yet the carter had thought it wise to seek safety by absconding.—(1203) “Robert of Herthale, arrested for having in self-defence slain Roger, Swein’s son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter.”5
3. But still, in the earlier days, the malfeasor by misadventure must at least pay a fine, though released from the penalty of death, and, later on, when the blood-feud had disappeared and a fixed payment was the regular form of civil liability, he must pay a portion of the ordinary amount:
Holland.—In 1438 Philip of Burgundy pardons by special grace the members of a guild in Leyden who have killed some one by misadventure, remitting the forfeiture of life and goods, but saving the expiation-money due the dead man’s kindred.1
Franks.—Capitulary of Charlemagne, 819 ad, with instructions to the missi, or itinerant officials: As for a person held to answer, “let this be the treatment, that if one has offended ignorantly, let him not be obliged to pay according to the full rule, but as near as seems possible.”2
England.—LL. Henry I. (so-called), 90, 11: After the maxim above cited, “qui inscienter peccat scienter emendet,” and the illustrations of misadventure, “In these and like cases, where a man intends one thing, and another eventuates, i. e., when the result, not the intention, is charged as blamable, let the judge fix a small fine and fee, inasmuch as it really occurred by accident.”3
4. Moreover, probably at a somewhat later stage, as the notion of complete exculpation (in a criminal process) grows, the malfeasor must, immediately after the occurrence, give notice of it, and swear an extra-processual exculpatory oath as to its occurring by accident or in self-defence; otherwise, he loses the benefit of the plea if suit is brought:
Franks.—Lex Ripuaria, 77: When a man slays a malefactor, flagrante delicto, who has resisted capture, he must make oath with eleven helpers that he slew the other as an outlaw; if he does not, “homicidii culpabilis judicetur.” Then afterwards he must come to his trial within forty nights, and make oath with thirty-six law-men.
Sweden.—The wrongdoer by misadventure, without waiting for suit, must offer an oath and render satisfaction for the deed.1
Holland.—The oath of exculpation for the death of a servant declared that it happened “by his self’s fault and by misadventure, and without deed of his.”2
In the thirteenth century, then, in England we find the primitive notion still living, for harm caused unintentionally; in cases of homicide, at least, the slayer forfeited goods and paid some fine or fee to the king in a criminal process, and in probably all torts the harmdoer paid some compensation to the injured party.3
We leave this topic at that stage, and turn to—
Harm connected with Animals
The successive phases of development are nearly akin to those already considered.4
1. Of the primitive idea of full liability for harm caused by one’s animals, there are a few traces:
Sachsenspiegel1 speaks of complete liability being the ancient rule, “quantum si facinus in persona propria commisisset.”
2. In the next phase, the injured party is found without the privilege of carrying out the blood-feud; this recognition of the unintentional nature of the deed seems to have come earlier here than in any other class of cases. But the owner is still answerable for the wergeld or the composito appropriate to the harm done,—by most laws for the full sum, by others for an aliquot part; and in many cases the value of the mischievous animal, if surrendered, can be used in reduction of this sum:
The full sums were required by the early Lombards,2 the Anglo-Werini,3 and the Saxons;4 the Alamanni5 required it for injuries by horses, oxen, swine, but one half only if by others; the Frisians6 required one quarter only. The Salians (early period)7 and the Ripuarians8 required the whole, but allowed the animal to go for one half. The later Lombards required one half.9 These rules may be traced in much later records of those regions.10
3. The next step is to absolve the owner entirely, if he divests himself of all relation with the accursed thing by putting it from him entirely; and this would take place, (1) in the beginning, by handing it over to the injured party for the infliction of vengeance (or, as above, in time, as in some sort a compensation or perquisite), and (2), later, by merely turning the animal loose:
(1) Lex Visigothorum.1 —The animal is delivered “ut eum occidat.”
Laws of Alfred.2 —(871-901) “If a neat wound a man, let the neat be delivered up or compounded for.”
Fitzherbert.3 —(1333) “If my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me.”
(2) Flanders.4 —(1241, 1264). The owner is not liable if he “expellet et abneget” the animal.
Poitou.5 —The owner is freed if he “désavouer” the animal; and he is bound if he takes it back again.
Norway.6 —The owner is free if he “von der hand sagen” the horse, swine, ox, or dog; otherwise he is liable as if the murderer.
The owner would thus not be liable if the animal had escaped; for he is no longer connected with it, he is absolved:
Twisden, J.:7 “If one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature:” this may be a trace of the early notion.8
Moreover, the notion that the owner is liable if he harbors or takes the animal back after repudiation,9 became, when rationalized as time went on, one of the sources (apparently) of the scienter rule in English law.
It must be added that the feature of delivering to the opposite party for his purpose of wreaking private vengeance was largely supplanted by the idea of forfeiture to the authorities for public punishment: sometimes the animal was outlawed, and could be killed by any one;1 later it was forfeited to the lord or to the church.2 Sometimes it was tried for its offence, and the theories and methods of trying and punishing animals form a long and interesting sidepath from the present subject.3
4. Along with all this we find in various regions in later times the requirement of an exculpatory oath as a preliminary to allowing the owner to free himself by giving up the animal. The oath perhaps at first declares merely that the owner was not privy to the wrong; but later it is that the owner was not aware of the animal’s vice:
Lex Salica.4 —“Per lege [oath] se defendere potest, ut nihil pro ipso pecore solvat.”
Livre des Droiz, etc.5 —“Celui a qui le beste sera est tenu de amender le dommage au blécié; et si ne fera amende a justice, par quoy il ose jurer qu’il ne sceust la teiche de la beste [that he did not know the vice of the animal].”
Flanders (1241).—The owner is not liable unless the animal has for at least two days shown “manifestae noxae.”
6 From this basis (and perhaps that just mentioned) the later doctrines as to animals ferae et mansuetae naturae, and as to a scienter of the tame animal’s viciousness in cases of violent injuries, would easily work out.
Harm connected with Inanimate Things
Here we may trace, mutatis mutandis, stages of development substantially analogous to those found in the preceding class of cases.
1. Of the most primitive form, subjection to the blood-feud for injuries caused by things belonging to a person, and without the owner’s personal use of them, there are only a few traces, for the change came early:
In the early times,1 when rape or adultery was committed in a house, its inmates were killed, and the house (of commission or of refuge) was destroyed.
2. This passes into a mere pecuniary liability, accompanied sometimes by the duty of handing over the injuring thing, sometimes by the privilege of using its surrender to reduce the amount of the payment:
LL. Henry I.2 —A fine was imposed “si alicuius arma perimant aliquem ibidem posita ab eo cuius erant.”
Schleswig.3 —If one is building a house, and a beam falls and kills a man, the beam is to be given over to the dead man’s heirs (or, by later law, merely thrown away), and the owner also pays them 9 marks.
3. The notion of complete exculpation by a surrender or repudiation of the offending thing, or by an abstention from using it again, very early makes its appearance:
Lex Ripuaria.4 —“Si quis homo a ligno seu a quolibet manufactile interfectus, non solvatur,5 ni forte quis6 auctorem interfectionis in usus proprios adsumperit; tunc absque frido culpabilis judicetur.”
Schleswig.—In the case above, if the beam is built in after all, the whole house is forfeited.
Norway.1 —A traveller speaks of seeing sickles, axes, and the like, with which men have been killed, lying about abandoned and unused.
LL. Henry I.2 —The owner of weapons used by another to do harm must not take them into his hands again till they are “in omni calumpnia munda.”
The notions with regard to the forfeiture of such noxal things passed through phases similar to those respecting animals; and the “deodand” is one of the traces in later law.3
4. In some cases the feature reappears (along with the principle of exculpation by surrender or repudiation) of a preliminary exculpatory oath:
LL. Henry I.4 —Where a man puts down his arms somewhere, and another takes them and does harm with them, or where he has left them with a polisher or a repairer, and the like happens, the owner must free himself by oath.
5. Finally, but coming at different times with respect to different classes of things, we find something approaching a rationalization of the rules. In some clear cases there is an absolute exculpation, without more said; in others, there is a foreshadowing of a test of due care or the like:
Lex Burgundiorum.5 —It is found necessary to say that if a lance or other weapon is stuck in the earth, and a man or animal chances to trip on it, the owner need not pay.
Lex Saxonum.1 —Payment must be made, where injuries occur from ditches or traps, “a quo parata sunt.”
Lex Anglo-Werinorum.2 —“Qui machinamentum fecit, dampnum emendet.”
LL. Alfred.3 —Where a man is injured by a spear in another’s hand, he is liable “if the point be three fingers higher than the hindmost part of the shaft; if they both be on a level, . . . be that without danger.”
Sweden.4 —At first the owner, but afterwards the user, of the noxal instrument must respond.
Harm connected with a Servant
1. There was certainly a time when the master bore full responsibility for the harmful acts of his serf or his domestic. It is worth while to emphasize this by quoting passages from Professor Brunner’s chapter on “territorial lordship,”7 his name for “the sum of the rights exercised by the lord over the tenants:”
“As regards the origin of territorial lordship, we have to distinguish in the Frankish empire a lordship by Germanic law and one by Roman law. The starting-point of the former is the responsibility of the lord for his people. According to Germanic law, as above remarked, the house-master was responsible to third persons for those attached to his house. This responsibility extended not merely to bondsmen, but also to half-free and free persons. If a free but landless man remained for some time in the house of another, he acquired a relation of dependency which established the responsibility of the house-master. . . . The liability of the master extended not merely over bondsmen living in the house, but over those settled on the land, and even over those elsewhere, so long as the master kept his ownership and no third person became responsible by receiving the man. . . . The responsibility of the master for free persons extended at least to those living in his house, followers and vassals not excepted. How far it extended without the circle of actual members of the household is doubtful. . . . For misdeeds of the bondsman the master originally bore full responsibility towards third persons. He had, as the party to the suit, to represent him and to render satisfaction for him. . . . The responsibility for free persons shows itself in the form of a duty upon the master to answer for the freeman’s misdeeds.”1
2. This responsibility disappeared in the case of freemen, as time went on, so that the master could relieve himself by handing them over to the regular courts; and this apparently worked a complete discharge. But in the case of serfs and domestics, the effect of a surrender was at first merely to relieve from the blood-feud and from the payment of peace-money; it put the situation on the footing of a “misadventure,” as then conceived, i. e., it left the master liable to pay compensation-money:
2Kent Laws.—“If any one’s slave slay a freeman, whoever it be, let the owner pay with a hundred shillings, give up the slayer, etc.”
Lex Anglo-Werinorum.3 —“Omne damnum quod servus fecit dominus emendet.”
3. Then comes the usual step of allowing the value of the surrendered slave to be set off, and finally of complete exoneration by surrender of the slave; at first to the injured family, then generally to the courts for justice to be done:
Lex Salica.1 —The master pays one half the wergeld and, for the other, surrenders the slave.
LL. William I, c. 52.—“All who have servants are to be their pledges; if any such [servant] is accused, they [the masters] are to have him before the hundred for trial. If in the mean time he flees, the master shall pay the money due.”4
4. And, accompanying the later form (complete exoneration), the master must usually swear an exculpatory oath denying any connivance with the deed; for the exoneration presupposes that the master had no part in the deed:
Chilperic.5 —“Tunc dominus servi, cum VI [hominibus], juramento [affirmet] quod pura sit conscientia sua, nec suum consilium factum sit nec voluntatem eius, et servum ipsum det ad vindictam.”
Lex Saxonum.6 —He gives up or sets free the slave, and swears “se in hoc non conscium esse.”
5. In Norman England we find this notion, “se in hoc non conscium esse,” “pura conscientia,” “nec suum consilium,” distinctly reappearing in the idea that it made a difference whether the master consented to or commanded the harm done by the servant or other member of his household. But it is necessary, before risking a generalization, to set forth the available evidence:
Maitland’s Manorial Courts, I, 8 (ad 1246).1 —“Isabella Peter’s widow is in mercy for a trespass which her son John had committed in the lord’s wood.”
P. 9 (1247): “Roger the Pleader is at his law against Nicholas Croke, [on the issue] that neither he [Roger] nor his killed Nicholas’ peacock.”
P. 17 (1248): “Hugh of Stanbridge complains of Gilbert Vicar’s son and William of Stanbridge that the wife of the said Gilbert, who is of his [Gilbert’s] mainpast,2 and the said William unjustly, etc., beat . . . And Gilbert and William come and defend all of it fully.”
P. 96 (1279): “They say that the ploughman of Sir Ralph Rastel beat and ill-treated John Scot. . . . And one Thomas, the servant of the said Sir Ralph Rastel, by way of objection said that . . . the said John Scot beat and ill-treated the said ploughman. . . . The jurors say that J. Scot did not beat [the ploughman]. . . . Therefore the said Thomas is in mercy, 12 d.”
PP. 149, 153, 154.—Court of the Fair of St. Ives (1275), Saturday, May 11: “Hugh of Swinford comes and complains of Thomas of Toraux, the Canvasser. . . . And the said Thomas comes and is charged and convicted of having by [his servant] Simon the Blake of Bury sold canvas by a false ell in his booth. And R. B., R. P., and J. G.3 are associated with him in that booth.” . . . Wednesday, May 15: “Let all the merchants . . . be summoned to come to-morrow before the steward to adjudge and provide that Thomas of Toraux, R. B., R. P., and J. G., merchants selling canvas, have justice and equity in the matter of Simon the Blake of Bury, servant of said Thomas and his fellows, who was found in their booth measuring canvas with a false ell and selling it. Pledge for Thomas’ appearance, all his goods.” . . . Thursday, May 16: “For that Simon the Blake of Bury was found, etc., . . . the said merchants as well as the said Simon were accused as consenting to the said iniquity, and the said Thomas and his fellows named above have offered to prove . . . that they are not guilty thereof . . . and for that the said Simon confessed . . . it was ordered that his body be arrested. . . . And the said merchants give 40s. to the lord for his grace and favor.”4 In a later suit (p. 155) by Simon’s lawyer, it appears that Simon “confessed in full court that he received the said rod by the hand and bailment of one Thomas of Toraux, merchant of Rouen, whom he thereof vouched to warranty,” and that he was “not to withdraw himself from his plaint, but was to press his suit against the said Thomas;” yet he did withdraw his voucher.
Court Baron, 36 (1250-1300 ad).1 —William of Street’s Case: Charge against one who sent his son in to take fruit from the lord’s tree; denial that the son ever did so at his bidding: “William (saith the steward) at least thou canst not deny that he is thy mainpast,2 nor that he was seized in the lord’s garden . . .; how wilt thou acquit thyself that thou didst not make or bid him do this?” “Sir, for the deed of my son and the trespass I am ready to do thy will, and I ask thy favor. My pledges are, etc.” “But how wilt thou acquit thyself of the sending and bidding?” “In such wise, sir, as this court shall award that acquit myself I ought.”
P. 38: William Lorimer’s Case; charge of sending two men to cut stubble in E’s field; denial, “never did such persons by his sending or bidding cut the stubble of that place nor carry it thence.” So also Walter Coket’s Case, p. 39. In another case of William Lorimer’s, p. 55, he answers, “to prove that never did my folk, J. and T. by name, cut the stubble of that place by my commandment, nor carry it off, I am ready, etc.” But in an alternative version, he denies that J. and T. were his mainpast, alleging that they were only laborers hired from day to day. Apparently either defence was good.
P. 53: “William of E., thou art attached to answer in this court wherefore thy son who is thy mainpast entered the lord’s garden over the walls, etc. . . . Sir, [to prove] that never was any manner of fruit carried off by me, I will do whatever this court shall award that do I ought.—William, at least thou canst not deny that he was found inside and carried off divers kind of fruit at his will.—Sir, ’t is true; wherefore I put myself in mercy.”
Bracton’s Note-Book.—II, 596, No. 779 (ad 1233): An assize of novel disseisin by Simon against John. J. did not come, but “William of L., his bailiff, came and said, for J., that if any disseisin was done it was not done by him, because he does not avow [i. e. sanction] the deed, nor, if it was done by his men, did any one come to him to lay it before him [ostendere] so that he might make amends [corigeret].” And Simon replies, and ends by saying that “he sent to John asking that he should make amends [emendaret] and he refused to make amends.” Ultimately John wins, “because he did no disseisin.”
Ib., II, 600, No. 781 (ad 1233): An assize of novel disseisin by Ralph Basset against the Abbot of Kirkstede, for ploughing over the line of their fields, which adjoined. The Abbot denies any disseisin, and says, “that if his lay-members did anything there, this is not by him, and if it were so [i. e. that they had done harm] and it had been laid before him, he would have caused amends to be made [emendari], but if anything was done it was not laid before him, and therefore he says that he (ipse) did no disseisin if any was done.” Then Ralph answers “that the Abbot well knew of it and it was laid before him, and the grain was carried off to the Abbot’s own grange.” The jury find that the ploughs of the Abbot did plough two or three feet over the line; and “on being asked whether the Abbot knew of this, they say that they cannot tell, but they do know well that the monks and the lay-brethren of the Abbot were there to see that it was done [? ad visum faciendum]; and since they did not lay it before the Abbot, the Abbot should fall back upon them [capiat se ad eos], for they ought to inform him of the affair. And because the jury say that the field was so ploughed and that there are no boundaries and that the Abbot last year had the grain carried off, it is adjudged that . . . the Abbot be in mercy; damage, 5s.” The jury here were asked if the Abbot knew of the deed; yet he lost the case, though the jury could not tell; and the annotator (an early hand) writes on the margin: “Note that if one’s bailiffs and servants do not lay it before their master that a disseisin has been done, the master is not excused though he says that he knew nothing of it, inasmuch as his men knew of it. So also of monks rendering obedience.”
Ib., II, 471, No. 616 (ad 1231): In an action for taking the plaintiffs’ nets and preventing them from fishing, the defendants are asked “whether they themselves avow [i. e. are ready to answer for] the taking, or whether they did the taking by authority of the Abbot of S. Edmund’s, whose men they are, and they say that they took the nets of their own authority and avow the taking.”1
Bracton De Legibus.—f. 204 b: After dealing generally with the topic of disseisin, and passing to actions for disseisin by servants, he says: “But if they [the masters] have disavowed the deed of their men, and, when they shall have been sued in any respect by any man or in any mode, they shall not have made amends [emendaverint], they are still liable, so long as they are present1 and have freely placed themselves on the assize, although they are not named in the writ. But, if they shall have made amends for the deed of their men, whether before demand or after, as long as it was before the taking of the assize, they shall free themselves and their men from the penalty of the disseisin. But if the masters are occupied in parts remote, so that they cannot be made parties, and if they have not known anything about the disseisin, for this reason the assize2 shall not be stayed.” Here it seems that the avowal or disavowal affects merely the liability to a fine, and the duty to make compensation is assumed as invariable. Almost the same principles are further expounded at f. 171 a and f. 172 b. So also 158 b, as to distraints by the servant of a lord: “It must be inquired of the master whether he has avowed the deed of his servants or not; and if not, then the master will have an opportunity to make amends; but if he has avowed it or has not made amends, he makes the wrong his own, if there was a wrong.”
We see here going on the process of a general leavening by the principle of “se in hoc non conscium esse;” and apparently we are safe in concluding that by the end of the 1200s the general civil rule was still as indicated by Bracton’s statement on the particular topic of disseisin. In other words, so far as any penal results were concerned, the master could pretty generally3 exonerate himself by pleading that he had not commanded or consented to the act;4 while nevertheless this was only a growing exception to a responsibility which the moral sense of the community was still inclined to predicate generally, and accordingly the liability to make good any harm done—i. e. the civil liability—still continued without regard to command or consent. As we shall see later, the test of command or consent was soon after extended generally to a civil liability; and even in the 1200s we seem to see it coming. Yet as that century was not thoroughly conscious of the distinctions “civil” and “criminal,”1 it can only be said that, at the point to which we have now traced the topic, we find that the test of command or consent was applied in some cases and not applied in others, the general notion being that absence of command or consent excused from correctional or penal consequence.2
In tracing these topics to this stage, two things must be noted with reference to the sources from which we thus arrive at a knowledge of the root Germanic idea: (1) It is not an absolute and unvarying idea. It was not uniformly and invariably dominant, and there were of course exceptions more or less notable. Possibly one of these obtained in the case of fire kept in one’s house and accidentally resulting in a conflagration;1 this we shall consider later. But on the whole the popular ethico-legal sentiment was of the content above set forth. (2) The various stages of the idea’s development, as already remarked, cannot be plainly pieced out for each of the Germanic communities; nor can it be asserted that for the whole race the development went on with any homogeneity of time and incident. What can be affirmed is merely that the idea, in the various communities and at various epochs, passed through stages such as those indicated.
We have now reached the stage when the notions of tortious civil responsibility, as developed in the newly organized Anglo-Norman courts, may begin to be traced separately from those of criminal responsibility. Here the process begins to be more complicated. The groupings thus far assumed for convenience—harm from (a) a personal deed, (b) an animal, (c) an inanimate thing, (d) a servant or agent—must here be abandoned, and the line of tracing must be accommodated to the groupings which are most marked in the precedents of 1300-1800; the effort in hand being always to make out the subjective course of legal thought in its progress towards the accepted standards of to-day. The topics then may be followed down in this order: 1. Harm done Unintentionally and Personally; 2. Harm done in Self-defence; 3. Harm done by an Infant or a Lunatic; 4. Keeping of Fire; 5. Keeping of Animals, with reference to (a) land trespasses, (b) trespasses by biting, etc.; 6. Keeping of Dangerous Things in general; 7. Harm done by a Servant or Agent.
1. Harm done Unintentionally and Personally.—Here, about the 1200s, the responsibility was still absolute, and irrespective of personal blame in producing the harm. In homicide, at least, the slayer by misadventure forfeited his goods and paid some fine or fee to the king, though his life was spared; while in probably all torts the harm-doer paid some compensation to the injured party. What we have to note is, first, that no distinction as to negligence or the like was yet made; it was either “misadventure,” “unwitting,”—that is, not intentional,—or wilful, intentional. Secondly, we note that the state of things still corresponded in essence with prevailing ethical notions; the man was getting fair dealing as far as the standards of the time went. Our object must be to discover how and when the notion got away from these tests.
The first circumstance we perceive is that the penal law was already getting away from them, as is shown by the sparing of the life; and as the purposes of a penal law became more and more clearly realized, we may suppose that the penal treatment grew less and less rigorous as time passed; though the forfeiture remained, in name at least, even in Blackstone’s time. But a distinction was early made between penal and civil consequences, as the Thorn-Cutting case indicates.1 This rested probably on the ground, still very properly accepted, that “in all civil acts the law doth not so much regard the intent of the actor as the loss and damage of the party suffering.”2 But to-day in torts we do certainly consider, not merely the sufferer’s damage, but the blamableness of the defendant’s conduct; while no such distinction was yet made, in the 1300s, even in cases of mere “misadventure.” We have still therefore to trace the transition in this respect.
Now, it has been generally supposed that until the present century (earlier in this country,1 later in England2 ) the old notion continued, i. e. that the rationalization never proceeded any further than to posit a voluntary act by the defendant; that if from a voluntary act a Trespass—that is, a direct and immediate injury—followed, nothing could save the defendant from civil responsibility.3 And no doubt this came to be at least the preliminary test, the sine qua non, showing itself most prominently in the rule of pleading that if there had been no such voluntary act, then there was not even a prima facie Trespass.4 But more than this the whole course of precedents and of contemporary legal opinion does not allow us to believe. The evidence seems plain that the rationalization towards the present standards began at a much earlier period than has been supposed.5 In other words, there has never been a time, in English law, since (say) the early 1500s, when the defendant in an action for Trespass1 was not allowed to appeal to some test or standard of moral blame or fault in addition to and beyond the mere question of his act having been voluntary; i. e. conceding a voluntary act, he might still exonerate himself2 (apart from excuses of self-defence, consent, and the like). At first this test, naturally, was vague enough. “Inevitable necessity,” “unavoidable accident,” “could not do otherwise,” served indiscriminately to express, in judicial language, the reasons of fairness on which they equally exempted him who had intentionally struck in self-defence, and him who had unintentionally injured without what we now call “negligence,” and him who intentionally trespassed on the plaintiff’s land to avoid a highway attack.3 The phrases, “non potuit aliter facere” and “inevitable necessity,” served as leading catchwords for many centuries; and even up to the 1800s we find Court and counsel constantly interchanging “inevitable accident” and “absence of negligence or blame.”1 The precedents show us, then, that somewhere about 1500 a decided sloughing-off of the last stage of the primitive notion took place, and a defendant could exempt himself in this sort of an action if his act, though voluntary, had been without blame; the standard being more indefinite, and perhaps not as liberal, as to-day, but not different in kind.2 But it would seem that towards the latter half of the 1800s the opinion at the bar in England misconceived the language of some of the earlier cases,3 and it became necessary to review them in two cases (Holmes v. Mather, 1875; Stanley v. Powell, 1891), in which the doctrine was finally settled, for England, that the defendant’s attention to the requirements of due care may be (not necessarily always is) a defence, even where a trespass has been done. The same doctrine (“there must be some blame or want of care and prudence to make a man answerable in trespass”) had long before been laid down in this country, and that, too, purely as a matter of the right reading of the precedents.4
In trespasses to personalty1 and to realty there had originally been a disposition, at the time the general tendency to mitigation began, to carry it out in this field also. For instance, Rede, C. J., in 21 H. VII, (1506),2 declared that “where the executors take the goods of a stranger with those of the testator, they are excusable for the taking in trespass,” because “one cannot prima facie know perfectly which goods belong to the testator and which to the stranger;” and the excused trespass of the oxen in 22 Edw. IV, (1483) 8, 24,3 seems to rest on a similar notion; while Choke, C. J., shows it clearly in the Thorn-cutting case (1446).2 But this tendency soon disappeared,4 probably for reasons of policy, which are still accepted as valid;5 and no such defence is now admissible, except in trespasses or conversions of personal property under exceptional circumstances.6
2. Self-defence.—Here, as we have already seen, the Statute of Gloucester (1278) provided that, in crown cases, the slayer in self-defence (though forfeiting his goods) should receive a pardon by the king’s favor if he pleased.7 Yet the practice as to a pardon varied, for in two of these cases (1302, 1349) the defendant was apparently set free immediately.8 By 1624 the forfeiture was not required.9 In civil actions of trespass, however, the mitigation was longer in coming. In 129410 and in 131911 the defendant was obliged to respond; but in 1400,12 and ever since, the plea is accepted as a complete defence.1 Yet its whole scope was not fully realized at first. For instance, in the very case preceding that of 1302, in which the defendant was set free for killing a wheat-thief in self-defence, the defendant (in a crown case) who killed a wheat-thief in defence of his brother was sent to prison;2 and in 1436,3 when it was agreed that in all justice “it is lawful for a man to aid his master,” it seems to be a case of first impression.
3. Lunatics and Infants.—The natural result of the primitive notion would be to hold the lunatic liable, no less than the slayer by misfortune; and in fact the two stood at this time on the same footing:
“It was presented that a certain lunatic wounded himself with a knife, and, after he recovered from his infirmity [lunacy] and received the rites of the church, he died of his wounds; his chattels were confiscated” (1315).4 In 1330 a lunatic homicide is given a king’s charter of pardon.5
But the popular superstitions in such matters prevented as rapid an approach as might have been expected towards a rational treatment, even in criminal cases, of lunatic harm-doers. It would seem that a similar inability to make allowances served for a long time as in part a basis for tortious responsibility; though doubtless as much or more influence is to be attributed to the maxim, so powerful in the sphere of deeds and contracts, that “no man of full age shall be, in any plea to be pleaded by him, to be received by the law to stultify himself.”6 However, by Lord Bacon’s time, the principle was maintained in the form that a lunatic was responsible for his torts in the same way as an ordinary person.7
The development was quite otherwise with the responsibility of Infants. In Germanic custom the male child was without a standing in the community as an obligor or an obligee. Like the master for the slave, the father answered for and made claims on behalf of the child.1 The ceremony of investing him with arms as a wehrhaft, or weapon-bearing, member of the community, was the usual period for the assumption of rights and liabilities; and this customarily (not always) took place at the age of twelve. Hence we find, in Anglo-Norman days, the age of twelve years as the earliest at which liability can begin.2 We soon see, however, a tendency to reduce this age-limit,3 and the twelve-year rule came to be disregarded in criminal cases;4 while a seven-year limit appears in later criminal law as the subject of a presumption against criminal intent.5 The case of 35 H. VI, 11, pl. 18 (1457) is usually given as the first in which an infant was held liable in Trespass.1 But the language of the Court there shows (the penal idea being still at that time attached to the idea of a trespass) a disposition to exempt the infant; and the reason given for refusing to discharge him as incapable of discretion (that the possibility of a plea of justification takes the power from the Court) does not put the case on any ground of the immateriality of intention. Moreover, in 16112 it was resolved by the Court that a writ of capiatur would not be issued in an action of vi et armis against an infant; and in Temp. Car. I.3 an action of Case for slander against an infant was sustained on the ground that malitia supplet ætatem. However, about this time we find infants ranked with lunatics as liable civilly on the general ground that the intent (i. e. bad intent, bad motive) was immaterial.4
4. Keeping of Fire.—Here the old responsibility, in its strictest form, continued down to Queen Anne’s reign, and for almost the whole period, we may believe, it was sanctioned by popular notions.5 The short name of the action (“for negligent garder son feue”) is a misleading one; it means merely “for failing to keep in his fire,” and the responsibility was absolute, as may be seen from the words of the writ6 (“quare . . . homo et femina . . . ignem suum die ac nocte salvo et secure custodire teneatur, ne pro defectu custodiæ,” etc.), and from the proceedings in Beaulieu v. Finglam (1400),1 where any question of blamableness is excluded.2 The primitive idea is seen remaining in the argument there made and rejected, that “the fire could not be alleged to be his fire, because a man cannot have property in fire.”3 In Tuberville v. Stamp (1698)4 the old tradition was still adhered to (“be it by negligence or by misfortune, it is all one”); though the intervention of a sudden wind-storm was treated as an available excuse.5 In 17006 a similar action failed, apparently only by bad pleading; but in 17127 the responsibility for accidental fires in houses8 was abolished by the Legislature.9
5. Keeping of Animals.—(a) In trespasses of animals by biting or otherwise wounding, we find the rule on English soil to be a lineal successor of the form already seen in the North French records,10 that the owner “did not know the animal’s vice.” The three writs in the Register11 begin by alleging that the defendant “quosdam canes ad mordendum oves consuetos apud B. scienter retinuit,” “quondam canem ad mordendos homines consuetum1 apud L. scienter retinuit,” “quondam aprum ad percutiendum animalia consuetum apud W. scienter retinuit.”2 Sometimes, especially for dogs, we find a modification of the old rule, the same in idea though somewhat different in form, intimating that liability ensued where the vice and the knowledge could not be shown, if the owner incited the animal to the trespass;3i. e. the same broad idea, of Command or Assent, as in the case of servants. The rule remained on this basis for several centuries,4 though the form of the usual writ seems to have changed slightly.5 By Lord Holt’s time it was found desirable to rule that a scienter was not necessary in the case of animals “naturally mischievous in their kind;”6 and his admirably concise statement of the rule has since prevailed, giving Courts nothing to do but apply it to varying circumstances; though even in this apparently simple task they have sometimes found that they had an elephant on their hands.1
(b) But for land-trespasses of animals the old strict liability continued in full force. Some indications appear of a tendency to impose a greater penalty for trespasses repeated after a first trespass has occurred;2 but no such relaxation seems to have maintained itself,3 and the principle was kept that “a man should so occupy his common that he does no wrong to another man.”4 In modern times, as we shall see, this rule has been rationalized with others under the principle that those who keep things likely to do mischief keep them at their peril.5 There were but two modifications made. One was the decision, in a solitary case, that in turning the plough on adjoining land (as custom allowed) the owner was not liable for the trespass of the oxen in snatching a mouthful of grass, since “a man cannot at all times govern them as he will;” here the existence of such a custom was held a necessary element in the exemption.1 The other was the exemption from trespasses of cattle who wander, when driven along the highway lawfully, provided the driver is present and not in fault and makes fresh pursuit.2 This seems at first to have been granted in cases where the plaintiff was bound by custom to fence along the highway;3 but in the 1800s this limitation disappeared, and such a duty now seems to play no part;4 so that an English Court will now go so far as to exempt the driver (barring negligence) of the bull who breaks into the traditional china-shop,5 —thus bringing true the law laid down by Doddridge, J., in 1605,6 which, however, was probably not yet law in his day.7
With this history for the rule, it is in appearance strange that it should not have been applied equally to dogs as to other animals. The explanation seems to be that in the Germanic days, from which the traditions come down, the dog was not a domesticated animal,—was only a half-savage hanger-on in the human communities, as he is to-day in many parts of the world. Belonging to nobody, nobody was responsible for him;8 and by the time man’s relation to him could be said as a usual thing to be one of control or possession, the tradition was all against making his owner responsible (barring wilfulness) for his trespasses to land. Such seems to have been the judicial attitude up to this century,1 and not by any means on grounds of tradition merely; but although Victoria has reached a different result,2 and although in this country Dog Acts have dealt decisively with the acts of a dog, the law of England on the subject cannot yet be said to be declared.3
6. Sundry Acts; Acts at Peril. We have now traced down to modern times sundry doctrines of Responsibility in the typical classes of acts found expressly regulated in the primitive law; and everywhere there has been more or less rationalization of the rules. In some classes (e. g. keeping cattle) the duty is made an absolute one for all in similar situations; in others the question of culpability is reopened as to due care in each case on its circumstances; but in all there has come to be assumed some degree of fault sufficient to amount to culpability. There are, however, numbers of acts not falling under the classes above traced; and the question arises, What has been, historically, the canon of Responsibility with reference to these? When did the Courts in these cases begin to base an action upon negligence alone, or upon some other test? We are here brought to the subject of the history of the Action on the Case for Negligence, so-called. But this is an inquiry too complex to be here taken up; a summary reference to its probable history must here suffice. Looking, then, at these sundry injuries (other than the above classes) as the Courts of several centuries ago must be imagined to have approached them, we find that they would probably have presented themselves in one of three aspects: (1) There was as early as the 1600s, and probably earlier, a principle that one who did an unlawful act (or one who committed a trespass) was liable for all the consequential damage, when properly alleged as special damage.1 (2) The principle sic utere tuo ut alienum non lædas was early familiar to the judges, and can clearly be traced even where it is given an English garb.2 This was generally employed to cover the case of an injury caused by acts done on one’s own land, but it was sometimes extended to cover the case of injuries by cattle. (3) For harm caused by a mere non-feasance, including many cases which we now subsume under Negligence, probably no action would lie.3 The word negligentia, as used in earlier times, meant apparently (as has been seen in the action for fire) merely “failure to do” a duty already determined to exist; thus, though the Courts constantly said that “a man is bound to keep his cattle in at his peril,” he is sometimes said to be held for “defaut de bon garde,”4 —meaning, not careless keeping, but merely failure to keep as bound; and the misapprehension of this was probably the source of Blackstone’s well-known misstatement that the action was for “negligently keeping” his cattle.5 It seems, then, that the action on the case based on a mere negligent doing was of little or no consequence until the 1800s,6 and that it then came about partly through the principle of consequential damage noted above, and partly through the growing application of the test of negligence in Trespass, as already indicated. But this suggestion is merely one made in passing; the essential point to note is that certain of the cases we have studied historically had become, in the 1800s, amenable to a generic test of Negligence, or Due Care under the Circumstances, which had somehow come to be applied to some other cases also. What we have still to notice is the fate of those remaining classes of cases which never became amenable to this test of Due Care under the Circumstances.
Briefly, they wandered about, unhoused and unshepherded, except for casual attention, in the pathless fields of jurisprudence, until they were met, some forty years ago, by the master-mind of Mr. Justice Blackburn, who guided them to the safe fold where they have since rested. In a sentence epochal in its consequences this judge co-ordinated them all in their true category:—
“There does not appear to be any difference in principle between the extent of the duty cast on him who brings cattle on his land to keep them in and the extent of the duty imposed on him who brings on his land water, filth, or stenches, or any other thing which will, if it escape, naturally do damage, to prevent their escaping and injuring his neighbor; . . . the duty is the same, and is to keep them in at his peril.”1
It is not that the phrase “at peril” was a novel one. On the contrary, it is an indigenous one and a classical one in our law.2 Nor is it that no previous attempt had been made at such a co-ordination of these kindred instances; for several such attempts, of more or less insight and conviction, may be found.1 What gave the exposition on this occasion its novelty and its permanent success was the broad scope of the principle announced, the strength of conviction of its expounder, and the clearness of his exposition, and perhaps, too, the fact that the time was ripe for its acceptance.2 It caught up and reconciled the absolute liabilities already predicated, as well in the two rules just above mentioned (consequential damage of an unlawful act, and “so use your own as not to injure another’s”) as in the remaining rules for trespasses by acts done “at peril” (keeping cattle, shooting guns under certain circumstances, and others already mentioned); it furnished a general category in which all such rules, whenever formed, could be placed. The full scope of the principle has since not always been perceived in individual instances; and Courts may differ, and have differed, as to whether particular acts (e. g. keeping reservoirs) should, in policy, have the principle applied to them.3 But the practical effect of that great jurist’s opinion has been to furnish us with four main categories of voluntary acts from which may arise a question of Responsibility for a specific harm, viz. (1) acts done wilfully with reference to that harm; (2) acts done at peril with reference to that harm; (3) acts done negligently with reference to that harm; (4) acts done nonnegligently with reference to that harm. In point of theory, the second and the fourth can best be regarded as subdivisions of the third.1 But at any rate all four are nowadays kept separate by rules of law. We had, at the times of the Conquest, two categories only,—acts wilful and acts of misadventure,—and these scarcely distinguishable civilly. To-day, with the process of rationalization nearly accomplished, we find these transmuted to four,—a differentiation which is in scope and conscious significance novel to the past.
7. Harm Done by Servants and other Agents: 1300-1850. It remains to trace the test of master’s responsibility for the tortious acts of persons in his service. In the first part of this Essay we found that in the primitive Germanic idea the master was to be held liable absolutely for harm done by his slaves or servants; that, in later Germanic times, the master could exonerate himself by surrendering the offending person, and at the same time taking an exculpatory oath, “se in hoc non conscium esse,” “quod pura sit conscientia sua;” that, on English soil, in the early Anglo-Norman period this idea of responsibility appeared in the shape of exoneration for deeds of the servant not commanded or consented to; but that in that period the test of Command or Consent had hardly begun to be applied to responsibility in what we now term its civil aspect,2 and, while common in penal matters, was by no means fixed in its scope. The subsequent development of the idea we may now take up in three stages: A. the period beginning with Edward I’s time, 1300 circa; B. the period beginning with Lord Holt’s time, 1700 circa; C. the period beginning with Lord Kenyon’s time, 1800 circa. Speaking provisionally and roughly, these stages stand for the following phases: (1) the extension of the Command or Consent test to civil responsibility; (2) the test of Implied Command from General Authority; (3) the test of Scope of Authority or Course of Employment. We may now take up the evidence of this development.
A. ad 1300-1700. It will be apparent to one who studies the following cases that for a century or so the undercurrent of feeling was still that the master bore absolute civil responsibility for his servant’s doings; that the extension of the Command test had to make its way against what may be called the presumption to the contrary, and that it came first in cases (such as fraud) more nearly related to the sort of conduct to which it was already recognized to apply, i. e. morally reprehensible, criminal acts; and that it can hardly be found to be accepted as a general rule in trespass, etc., until early in the sixteenth century:
1302, Y. B. 30-31 Ed. I, 532 (Rolls ed.).—Hugo is charged with rape. Duodecim: “Nos dicimus quod ipsa rapiebatur vi per homines domini Hugonis.” Justiciarius: “Fuitne Hugo consentiens ad factum vel non?” Duodecim: “Non.” . . . Justiciarius: “Hugo, quia ipsi vos acquietant, nos vos acquietamus.”
1302, Y. B. 30-31 Ed. I, 203 (Rolls ed.).—A poor woman complained of frequent distresses by B. The inquest “said that the woman’s son, who was of her mainpast [household], had done damage in B.’s wood.” Berrewik, J.: “And inasmuch as he did wrong to distrain the woman for [the deed of] her mainpast,” B. was found guilty.
1305, 33 Ed. I, 474 (Rolls ed.).—Writ of covenant by Henry de Bray, a tenant against his landlord, a knight, for disseisin. The inquest founded that the knight’s lady had come with her friends, and the plaintiff, departing in fear, left her in possession “without that Master Henry was ousted by the knight himself or his counsel.” The Court held that, “inasmuch as the deed of the wife is the deed of the husband, it is awarded that Master Henry recover these damages of 100 marks.”1
1353, St. 27 Ed. III, 2, c. 19.—“No merchant nor other, of what condition that he be, shall lose or forfeit his goods nor merchandizes for the trespass and forfeiture of his servant, unless he do it by the command or procurement of his master, or that he hath offended in the office in which his master hath set him, or in other manner that the master be holden to answer for the deed of his servant by the law merchant, as elsewhere is used.” (Apparently this is the first positive modification in civil matters. Here, as often elsewhere, mercantile convenience is earliest in calling for new adjustments.)
1401, Beaulieu v. Finglam, Y. B. 2 H. IV, 18, pl. 6.—Action for damage caused by the defendant’s fire. Markham, J.: “A man is held to answer for the act of his servant or of his guest in such a case; for if my servant or my guest puts a candle on a beam, and the candle falls in the straw and burns all my house, and the house of my neighbor also, in this case I shall answer to my neighbor for the damage which he has, quod concedebatur per curiam.” Hull, for the defendant: “That will be against all reason to put blame or default in a man where there is none in him; for negligence of his servants cannot be called his feasance.” Then the traditional misfortune-liability is cited in reply. Then Markham, J.: “I shall answer to my neighbor for him who enters my house by my leave or my knowledge, or is entertained by me or by my servant, if he does, or any one of them does, such a thing . . . ; but if a man from outside my house, against my will, puts the fire . . . for that I shall not be held to answer to them, etc., for this cannot be said to be through ill-doing on my part, but against my will.”1
1498, Y. B. 13 H. VII, 15, pl. 10.—“It was held in Common Bench, if my servant, against my desire, chases my beasts into the land of a stranger, I shall not be punished for this, but my servant; otherwise if my beasts escape against my desire, for I shall there be punished. Quaere, if I keep a dog, and my servant against my desire incites and causes the dog to bite and kill the beasts of a stranger, whether I shall be punished for this.”
1505, Y. B. 20 H. VII, 13, pl. 23.—Trespass for false imprisonment; justification as bailiff by command of the sheriff under a writ; the sheriff had neglected to return the writ, and this was objected to as defeating the plea. Rede, C. J., “to the contrary. For there is no default in the bailiff. . . . For suppose that the master commands the servant to distrain, and so he does it and takes [the distress] to his master, and the master misuses it, is it reason to punish the servant? No, surely; and so no more here. And if the master commands the servant to distrain, and the servant does so, it is not reason, if the servant misuses the distress, that the master should be punished by cause of his command, which was lawful in the beginning; wherefore, on the other hand, [in this case also] the law should be all one.”
1506, Y. B. 21 H. VII, 22, pl. 21.—Same facts as in 20 H. VII, supra; probably the same case adjourned. Rede, C. J., holding the defendant excused “since every bailiff and every servant is bound to do the precept of his master in all that is legal,” and showing that “there is a defendant in his master, in whom the default is,” says: “As if I command my servant to take a distress for my rent, and he does it and leads the distress to me, and I kill it, or do other illegal thing with it, in this case the servant is excused; and, on the other hand, where I command my servant to take the distress legally, and he rides on the distress, in this case he shall be punished, and I excused, for that when I command him to do a thing legally, and he does contrary to the commandment, he does a wrong to which I did not assent [agrea]; it is reason to punish him and to excuse me, and so here. . . .”
1518, Doctor and Student, II., c. 42 (Muchall’s ed. 233).—“For trespass or battery, or wrongful entry into lands or tenements, ne yet for felony or murther, the master shall not be charged for his servant, unless he did it by his commandment.”
1525 circa, Treatise on Subpoena (1 Hargreave’s Law Tracts, 347): “Also if a man’s servant thro’ negligence of his maister, tho’ it be not by his commandmente or assente, but for lacke of correction, do offences and trespasse to his neighbour, whereby the master is bound in conscience to make restitution if his servante be not able, yet there lieth no subpœna againste the master to compel him to it.”
1606, Waltham v. Mulgar, Moore, 776.—Action against the owner of a privateer which captured a friendly ship. A civilian solicitor argued for an absolute responsibility of masters “in public affairs.” “He who has put a ship in traffic should provide servants who will not commit public offences.” But Popham, C. J., said: “Where the master put his servant to do an illegal act, the master shall answer for the servant if he mistakes in the doing of the act; but where he put his servant to do a legal act, as here to take the goods of the king’s enemies, and he has taken the goods of friends, the master shall not answer. As if one sent his servant to a market to buy or sell, and he robs or kills by the way, the master shall not answer; but if he sets him to beat some one, and he kills him or mistakes the person and beats another, the master is a murderer. So with rescous or trespass.”
1677, Michael v. Alestree.—Action for bringing ungovernable horses to be trained in Lincoln’s Inn Fields, whereby the plaintiff was injured; the horses were actually taken there by a servant of the defendant. The chief discussion was as to the general liability for so using horses. It is then said, in 2 Lev. 172: “It shall be intended that the master sent the servant to train the horses there;” in 3 Keb. 650, “The master is as liable as the servant if he gave order for it.”
1685, Kingston v. Booth, Skinner, 228. In an action of trespass for assault, battery, and wounding, “these points were ruled by three of the justices. . . . Secondly, If I command my servant to do what is lawful, and he misbehave himself, or do more, I shall not answer for my servant, but my servant for himself, for that it was his own act; otherwise it was in the power of every servant to subject his master to what actions or penalties he pleased. Thirdly, If I command my servant to do a lawful act, as in this case to pull down a little wooden house (wherein the plaintiff was . . .) and bid them take care they hurt not the plaintiff, if in this doing my servants wound the plaintiff, in trespass of assault and wounding brought against me, I may plead not guilty, and give this in evidence, for that I was not guilty of the wounding, and the pulling down the house was a lawful act.”1
In view of the almost uniform language of Courts, counsel, and text-writers in these records of the 1500s and 1600s, it seems necessary to believe that the test, as it came to be accepted in those centuries, was none other than that of Command (i. e. before the deed) or Consent (Assent) (i. e. before or after the deed). In one specific case it is fairly clear that (for reasons already seen2 ) the old strict liability continued down through the 1600s, viz., the case of a fire started by the servant within the house. But apart from this exceptional case, and possibly one or two others involving the persistence of extraneous traditions, it may be inferred that the Command or Consent test was the natural and universal one. Moreover, it accords perfectly with the notions which we have found to characterize the later Germanic and the early Anglo-Norman periods, being the natural form of their orderly development.
Harmonizing with and corroborating the general rule, are two subsidiary rules, worth noting by way of evidence: (a) The rule that the command of the master excused the servant. It does not necessarily follow, of course, that where the servant had no command to plead in excuse, there the master would not be liable (though, as above indicated, that was in fact the rule); but the cases on pleading a command as an excuse are useful in indicating how common and natural that test was, and in thus corroborating the applicability of the corresponding test in suits against the master.1 (b) The rule of pleading that the replication in denial de injuria sua propria, when made in answer to a plea of justification as servant under the command of a master, was proper only where the justification consisted in a command merely, without any claim of interest in property (Crogate’s Case).2 That a master’s command, as above in (a), was generally a sufficient excuse is clearly implied in this rule, and we have here a corroborative effect of the same sort.
In the cases in the 1500s and 1600s there further appears the refinement which may be termed the doctrine of Particular Command, i. e. the doctrine that the master, to be liable, must have commanded the very act in which the wrong consisted (unless the command had been to do a thing in itself unlawful).3 It was somewhat by way of a reaction against this refinement that the form of the rule began to change under Lord Holt; and to this next stage we now come.
B. ad 1700-1800. We may here pause for a moment to consider the situation at that time. It is obvious that the Particular Command doctrine, if pushed to its logical extreme (as it was apparently coming to be), must have resulted in putting very narrow limits on the principle of responsibility for servants’ and agents’ doings. The doctrine would require, in effect, that the master should be liable (unlawful errands apart) only when the deed in all its details had been expressly and specifically commanded; and the arguments in Southern v. How,1 suggest the practical consequences of such a rule. Now, whether or not such a limited rule would have been desirable, it is certain that the circumstances of the time forced upon the judges a serious consideration of the expediencies of such a rule. The nation was reaping in commercial fields the harvest of prosperity sown in the Elizabethan age and destined to show fullest fruition in the age of Anne. The conditions of industry and commerce were growing so complicated, and the original undertaker and employer might now be so far separated from the immediate doer, that the decision of questions of masters’ liability must radically affect the conduct of business affairs in a way now for the first time particularly appreciated. A time had come when persons administering the affairs of others could no longer be classed indiscriminately as “servants,” at the beck and call of the master for each bit of work,—a time when in social development the position of a factor or agent vested with more or less authority and discretion was in fact no longer that of a servant.2 It was therefore natural that the judges should find themselves forced to consider (1) the practical expediency of the traditional test of liability, (2) if they should revise it, the expression and presentation of the test as revised.
On the first point, it is clear that they did in effect revise it. They determined (whether rightly or wrongly need not be here considered) that practical expediency could not put up with the logical consequences of the Particular Command test.1
As to the second point, the new phrasing, there was much uncertainty for a time, indeed for a century or more; but naturally enough the existing test was laid hold of and modified to suit their needs; and after all it was in itself fairly adapted to answer for the test which they thought just.2 The test now became what may be termed the rule of Implied Command from a General Command or Authority. At the same time, amid the general reconsideration, other phrasings of the test were sometimes vouchsafed. “Whoever employs another is answerable;” “acting in the execution of authority;” “acting for the master’s benefit;” “being about the master’s business,”—these appear as tentative expressions in the general effort to re-state on a rational basis. But the old test, in its broader scope, is still dominant in the last half of the new century:
1691, Boson v. Sandford, 2 Salk. 440; 3 Mod. 321.—The question was whether the owners of a ship were responsible for goods received by the master and spoiled by his negligence. Holt, C. J.: “The owners are liable in respect of the freight and as employing the master; for whoever employs another is answerable for him, and undertakes for his care to all that make use of him.”
1698, Tuberville v. Stamp; action for a fire started by the defendant’s servant in a field. Skinner, 681: It was argued by the defence that “it does not appear in this case to be done by the command of the master, and then it being out of his house he is not responsible.” Comb. 459. Holt, C. J.: “And though I am not bound by the act of a stranger in any case, yet if my servant doth anything prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business.” 1 Ld. Raym. 264: Holt, C. J.: “So, in this case, if the defendant’s servant kindled the fire in the way of husbandry, and proper for his employment, though he had no express command of his master, yet the master shall be liable . . . ; for it shall be intended that the servant had authority from his master, it being for his master’s benefit.”
1699, Middleton v. Fowler, 1 Salk. 282.—Case against owners of a stage-coach for a trunk taken on by the driver, but lost. Holt, C. J., said that a stage-coachman was not here within the custom of carriers, and adds, as to the receipt of money by the driver, “no master is chargeable with the acts of his servant, but when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master.”
1709 (?), Hern v. Nichols, 1 Salk. 289.—Deceit for cloth of wrong quality; the deceit was in defendant’s factor beyond sea. “Holt, C. J. was of opinion that the merchant was answerable for the deceit of his factor, though not criminaliter, yet civiliter; for seeing somebody must be a loser by the deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser than a stranger.”1
1722, Armory v. Delamirie, 1 Stra. 505.—Where an apprentice converted a jewel handed to him for weighing, “the action well lay against the master, who gives a credit to his apprentice and is answerable for his neglect.” (Pratt, C. J.)1
1734-6, Boucher v. Lawson, Lee’s Hardwicke, 85, 194.—A ship-master took on gold at Portugal, contrary to Portuguese law, and on arrival in London it was missing. Counsel for defendant: “If the servant of a carrier carry goods without the privity of his master, or his receiving a reward for taking them, the master is not chargeable. . . . A master is not answerable for the acts of his servant but where he acts in execution of any authority given him by the master. . . . My servant sells false stuff without my commanding it; no action lies against me; otherwise if by my commandment.” Counsel for plaintiff: “As to the master’s not being liable for his servant but in the exercise of his trade, this is in the master’s trade, for it is the trade of the owners of ships to carry goods;” citing Choke’s case of the horseshoer in 11 Edw. IV, ante. Hardwicke, C. J., decides for the defendants: “. . . It deserves to be considered whether, if a ship be sent for a particular purpose, and not in the general way of trade, the master can take in goods to charge the owners. . . . For anything that appears in this case, this might be a ship sent to Lisbon for a special purpose, and if so, no one can say that the master, by taking in goods of his own head, could make the owners liable. . . . This is no reason why these cases should be carried any further than they have been already.”2
1758-65, Blackstone, Commentaries, I, 429.—“As for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given or implied; nam qui facit per alium facit per se. Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it. If an inn-keeper’s servants rob his guests, the master is bound to restitution; for as there is a confidence reposed in him that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; nam qui non prohibet, cum prohibere possit, jubet. So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master; for although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command. . . . In the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. . . . A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct; for the law implies that they act under a general command; and without such a doctrine as this no mutual intercourse between man and man could subsist with any tolerable convenience. . . . [As to a servant’s negligence], in these cases the damage must be done while he is actually employed in the master’s service. . . . [In conclusion] the reason of this is still uniform and the same,—that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.”1
Attention may here be called to—
1. The form and phrasing of the test. From the arguments in Boucher v. Lawson and the passages of Blackstone, it may easily be seen how the idea of Express Command was naturally enlarging itself into that of Implied Command, a Command to be implied or posited from a general commission to do a class of acts. “Whatever a servant is permitted to do in the usual course of his business,” says Blackstone, “is equivalent to a general command.” “Where he acts in execution of any authority,” says counsel in Boucher v. Lawson; and this is the dominant phrase with Lord Holt. “It may be presumed that he acts by my authority, being about my business,” is another phrase of his. The new terms are natural enough and hardly call for explanation. It may be suggested, however, that “authority” was particularly easy of adoption because about this time it seems to have had, as a primary sense, the concrete meaning of a specific order (not merely the power itself, abstractly regarded).1 As the full meaning of the situation was realized, it was inevitable that the broader terms “scope of authority,” “exercise of trade,” “course of employment,” should prevail; but this was not yet to be.2
2. The reasons offered for the rule. As already observed, we find first under Lord Holt an effort to put the rule on a rational footing of policy,3 —an effort which, owing to inherent difficulties, has not yet by any means ceased. Usually some definite ground of policy, more or less tenable, was offered. Lord Holt’s reasons are in substance covered by his brief sentence in Wayland’s Case, “It is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen,” because it is he (Hern v. Nichols) who “puts a trust and confidence in the deceiver,” and (Armory v. Delamirie, per Pratt, C. J.) “gives a credit” to him. Blackstone, tracing the harm back to the original command of the master, says “no man shall be allowed to make any advantage of his own wrong.” Lord Hardwicke (Boucher v. Lawson) tries to strike a fair balance between the “security” which others ought to have who trust the servant and the “security” which masters ought to have from wayward employees. But very often the judicial mind gave up the troublesome task of accurately expressing a reason, and, quite content with the policy of the rule, took refuge, when it came to naming a reason, in a fiction or other form of words. “The master undertakes for the servant’s care,” said Lord Holt, in Boson v. Sandford; which of course is not true. The favorite expressions of this sort, however, were “the act of the servant is the act of the master,” when done in execution of authority (Middleton v. Fowler, Jones v. Hart), and “qui facit per alium facit per se” (Blackstone); and perhaps “respondeat superior” has often been used thus to evade giving a clear reason. Now here it must be noticed that there are different ways of employing a fiction. One is to accept as a guide a traditional element, though it no longer answers to the notions of the day, and to insist upon its use; as when the loss and finding are alleged in trover, or the loss of service in seduction. In the former instance the allegation is now recognized as a pure and ineffectual fiction; in the latter, except in some states, the loss of service must still be proved, though the whole basis of the claim rests to-day on other notions. A very different way is to employ a fiction to sanction a rule which we thoroughly believe in, but lazily prefer to evade accounting for openly and rationally. Of this sort is the instance in hand. Sometimes, as where in a document under seal the seal is said to presume a consideration, we borrow some kindred doctrine and force it to our present use; but sometimes, as here, we put forth a phrase not already used for the purpose, but now found very handy. So that what we have to remember about the employment of the above fiction of Identification, in the history of the present doctrine, is, (1) that it was merely a reason, an easy, concise reason, which was put forth to sanction and support a rule of whose practical expediency the Courts were perfectly satisfied; (2) that it was merely one of several reasons, and by no means the most common, and that, in short, the rule would have stood substantially as it does now, if all reference to the Identification fiction were wanting.1
C. ad 1800+. In what may be taken as the next stage, the balance is seen to change gradually; the Command phrase disappears as a regular one, and the Scope of Employment phrase, with its congeners, come into full control. The opinions of Lord Kenyon seem chiefly to mark the change (though his language is not uniform). Savignac v. Roome and Stone v. Cartwright show the rivalry with particular clearness:
1795, Morley v. Gaisford, 2 H. Bl. 442.—Case against one whose servant negligently drove a cart against the plaintiff’s chaise. A verdict was found for the plaintiff, but a motion was made in arrest of judgment that the action should have been trespass. “The Court seemed at first inclined to refuse the rule, saying that it was difficult to put a case where the master could be considered a trespasser for an act of his servant, which was not done at his command,” but, after delaying for further consideration, the rule was discharged on the defendant’s suggestion.2
1795, Savignac v. Roome, 6 T. R. 125.—Case for wilfully driving, by his servant, a coach against the plaintiff’s chaise. Verdict for the plaintiff. Espinasse moved in arrest, because, first, “no action could be maintained against the defendant for a wilful act of the servant, accompanied with force, unless done by command of the master,” citing Jones v. Hart, supra; and, second, because the action should have been trespass. Bayley contended that it was enough if the injury was done in the course of employment; but Espinasse quoted Blackstone, ubi supra, and Kingston v. Booth, supra. The Court made the rule absolute on the second ground, without noticing the first.
1796, Stone v. Cartwright, 6 T. R. 411.—The defendant managed a colliery as guardian; he employed a superintendent for the work, but took no personal concern in it. He was held not liable for a caving of the soil resulting from the improper removal of pillars. Lord Kenyon stated that such actions should be brought against either “the hand committing the injury, or against the owner for whom the act was done.” Lawrence, J., said: “If the plaintiffs had given evidence that the defendant had particularly ordered those acts to be done from whence the damage had ensued, that would have varied the case.”
1811, Paley on Agency: “But the responsibility of the master for the servant’s negligent or unlawful acts is limited to cases properly within the scope of his employment. . . . The responsibility of the principal is confined to acts done either under his express direction, or in his service and therefore under his constructive command. In all cases in which the frauds or injuries of servants have been held to affect their employers, it appears that the employment afforded the means of committing the injury. No wilful trespass of a servant, not arising out of the execution of his master’s orders or employment, will make him responsible.”
1826, Laughter v. Pointer, 5 B. & C. 547.—Here the defendant hired a coach from a stable, and the stable-keeper sent a driver with it, and a collision ensued, there is no traceable remnant of the literal form of the doctrine; all seemed ready to say, as Lord Kenyon did: “I admit the principle, that a man is answerable for the conduct of his servants in matters done by them in the exercise of the authority that he has given them.”1
From this time the general test is phrased as “scope” or “course” of “employment,”2 “scope of authority,”3 or, in later times, more carefully, “in furtherance of and within the scope of the business with which he was trusted.”1
Did no direct traces remain at later times of the supplanted Command test? Or was its broader substitute left in sole possession of the field after Lord Kenyon’s time?
1. A very few cases are to be found in which (the judges, perhaps, having been brought up under the earlier form of doctrine) a direct survival may be seen.2
2. By one of those misunderstandings not infrequent in our legal system, the language of the 1700s century became, in the 1800s, the basis of the rule that the form of the action against the master could be Trespass in that case alone where the specific act had been commanded by him.3 But this rule began in a misconception, gradually evolved, of the earlier rules, as reflected in the later series of cases just examined. The stages were three: (1) Morley v. Gaisford (1795), in the Common Pleas, initiates the above rule; but a comparison of it with Savignac v. Roome (1795), and Brucker v. Fromont (1796), indicates the prevailing principle, as administered in the King’s Bench, to have been that the form of action followed the intrinsic nature of the act; i. e. sue the master in Case where negligence of the servant is the basis of the claim, sue in Trespass for the servant’s trespass. (2) In McManus v. Crickett (1800), Lord Kenyon held that the master is not liable at all for a wilful trepass of the servant, unless done at express command, because he thus practically exceeds his authority; for his trespasses not wilful, Case lies. Of this understanding are Paley4 and Peake,5 writing shortly after. (3) Then forgetfulness ensued, the opinion at the bar altered, and in (1826) Gregory v. Piper and in (1849) Sharrod v. R. Co., it was said that the master is not liable in Trespass for his servant’s trespasses (i. e. direct acts, wilful or not), unless expressly commanded. This doctrine may well be regarded as a necessary result of the common-law theory of Trespass; but it seems on the evidence that it originally crept in through a misconception of the language of the old Command test, then becoming obsolete.
A review of this history of the idea of the master’s and principal’s liability throws some light on the validity of the principle in point of policy. As an existing rule, it cannot be objected to as the mere fossil remnant of a fiction. A learned writer has however averred that “common-sense is opposed to the fundamental theory of agency.” This is not the place to offer to do what no one has yet succeeded in doing,—to phrase the feeling of justice which every one has in the more or less extended responsibility for agents’ torts. But it is worth while noting that the doctrine of to-day took shape under Lord Holt in a conscious effort to adjust the rule of law to the expediency of mercantile affairs. It is also worth noting that the Command or Authority principle may prove to be, theoretically as well as historically, the true support of the rule of responsibility for agents’ torts. Perhaps the nearest approach to theoretic adequacy is that of Lord Brougham, in Duncan v. Findlater, 6 Cl. & F. 894, 910: “I am liable for what is done for me and under my orders by the man I employ, . . . and the reason that I am liable is this, that by employing him I set the whole thing in motion, and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it.”1 In other words, (1) if I command A to do act x, I ought to be liable for the natural consequences peculiar to that act taken in itself; (2) the same follows if x is a class, series, or group of acts; (3) if A does the act in a careless or otherwise wrongful way, different from that in which I expected him to do it, and not as I myself might have done it, my personal culpability is no longer clear; nevertheless, complete legal exoneration in such cases would be poor policy, for it would afford ample opportunity to shirk responsibility, merely by appointing substitutes; so that some medium must be found. If, then, I employ knowingly a careless servant, here at least I should be liable, just as for imprudently keeping a dog known to be ferocious. But even this may on practical grounds be too lenient a rule, for I may still find means of evading due responsibility under cover of that test. Public convenience then may demand that I should be liable up to a still further point, even though I select agents carefully; in other words, we may say that I employ a substitute more or less at my peril. Just as gunpowder is kept at peril, but steam-engines, through demands of industrial welfare, are not kept at peril, so there is an undefined point at which the appointment of a substitute ceases to be at peril; and in the nature of the case that point is in individual instances hard to determine. But the conflict is hardly, as the learned jurist would place it, between common-sense and tradition, but between one great consideration of policy and another. If the restraining consideration just now seems to be the weak one, it is precisely because, as the above-mentioned article admits, public opinion is convinced (rightly or wrongly) that the broad rule is a “seemingly wholesome check on the indifference and negligence of great corporations.” Whether for the sake of this alone we should sanction such broad limits in dealing with the general mercantile community is perhaps a really different question. But at any rate the whole liability, wherever it be bounded, can be discussed and expressed, it would seem, “according to the ordinary canons of legal responsibility,” without borrowing support from a supposed historic fiction.
[1 ]This Essay was first published in the Harvard Law Review, 1897-1898, vol. XI, pp. 277-289, 374-386.
[2 ]A biographical note of this author is prefixed to Essay No. 43, in Volume II of this Collection. Additions are in brackets.
[1 ]“This appeal is not a real or personal action . . . the woman (appellor) is seeking vengeance for the death of her husband.” Y. B. 9 Hen. IV. f. 2, pl. 8. The compensatory appeals, in their origin, were likewise actions for vengeance. 1 Nich. Britt. 124; Fleta, Lib. I. cap. 40, 42; Y. B. 18 Ed. III. f. 20, pl. 31; 2 Pollock & Maitland, Hist. Eng. Law, 487.
[2 ]Glanvil, Bk. 10, ch. 15-17; Bract. 150 b-152; 1 Nich. Britt. 55-60; Fleta, Lib. I. ch. 38; see also Mirror of Justices, Seld. Soc’y, Bk. III. c. 13.
[1 ]Northumberland Assize Rolls, 79 (40 Hen. III.). “Stephanus de S . . . captus fuit cum quodam equo furato per sectam Willelmi T. et decollatus fuit, praesente ballivo domini Regis, et praedictus equus deliberatus fuit praedicto W. qui sequebatur pro equo illo in pleno comitatu.” In 1271 one Margaret appealed Thomas and Ralph for killing her brothers. But she was imprisoned for her false appeal, since Thomas and Ralph, who had pursued and beheaded her brothers as thieves taken with the “mainour,” had acted according to the law and custom of the realm. Pl. Ab. 184, col. 1, rot. 24. This custom was condemned by the justices, in 1302, who said that one who had beheaded a manifest thief should be hanged himself. Y. B. 30 & 31 Ed. I. 545. See 2 Pollock & Maitland, Hist. Eng. Law, 495.
[2 ]Bract. Note Book, No. 824.
[3 ]As early as 1319 the rule was established that a thief taken with the “mainour” could not defend an appeal by wager of battle, but must put himself upon the jury; “for the appeal has two objects, to convict the thief and to recover the stolen chattel, and the law recognizes that the thief, though guilty, might by bodily strength vanquish the appellor and thus keep the chattel without reason.” Fitz. Cor. 375. See also Fitz. Cor. 157, 125, 100, 268.
[4 ]Book X. ch. 16.
[5 ]Sel. Pl. of Crown, 1 Seld. Soc’y, No. 124.
[6 ]Bract. Note Book, No. 1435.
[1 ]Sel. Pl. of Crown, 1 Seld Soc’y, No. 192; Bract. Note Book, No. 67.
[2 ]Sohm, Der Process d. Lex. Salica; Jobbé-Duval, La Revendication des Meubles; Brunner, Rechtsgeschichte, 1st ed., I. 495 et seq.; Schroeder, Lehrbuch d deutschen Rechtsgeschichte, 346 et seq.
[3 ]Y. B. 8 Ed. III f. 10, pl. 30. See also Y. B. 1 Hen. IV. f. 4, pl. 5; Y. B. 7 Hen. IV. f. 31, pl. 16; Y. B. 7 Hen. IV. f. 43, pl. 9; Roper’s Case, 2 Leon. 108. In a case cited in Sel. Pl. Ct. Adm. 6 Seld. Soc’y, XL., restitution was ordered in the Admiralty Court “because by the law maritime the ownership of goods taken by pirates is not divested unless the goods remain in the pirates’ possession for a night.” See also Y. B. 7 Ed. IV. f. 14, pl. 5; and compare Y. B. 22 Ed. III. f. 16, pl. 63.
[1 ]Y. B. 30 & 31 Ed. I. 527.
[2 ]Fitz. Cor. 379 (12 Ed. II.). See also Y. B. 30 & 31 Ed. I. 509; Y. B. 30 & 31 Ed. I. 513; Fitz. Cor. 392 (8 Ed. II.); Fitz. Cor. 190, criticising Y. B. 26 Lib. Ass. 17.
[3 ]Dickson’s Case, Hetley, 64. But see Rook and Denny, 2 Leon. 192.
[4 ]Y. B. 8 Ed. III. f. 10, pl. 30; Fitz. Avow. 151, per Schardelow, J.
[5 ]Fitz. Cor. 367 (3 Ed. III.).
[6 ]Y. B. 44 Ed. III. f. 44, pl. 57; Fitz. Cor. 95. But see Y. B. 7 Hen. IV. f. 31, pl. 16, Fitz. Cor. 21; and compare Y. B. 4 Ed. IV. f. 11, pl. 16, Fitz. Cor. 26.
[1 ]Fitz. Cor. 318 (3 Ed. III.).
[2 ]Y. B. 30 Ed. I. 527; Fitz. Cor. 162 (3 Ed. III.). But see Fitz. Cor. 380 (12 Ed. II.) semble, and Y. B. 26 Lib. Ass. 32, Fitz. Cor. 194 (semble), contra.
[3 ]Y. B. 4 Ed. IV. f. 11, pl. 16, Fitz. Cor. 26. But see contra, Fitz. Cor. 379 (12 Ed. II.) and Fitz. Forf. 15 (44 Ed. III.). In the last half of the fourteenth century this rule was so far relaxed that the pursuer might recover his chattels if the conviction of the thief was prevented by his standing mute. Y. B. 26 Lib. Ass. 17; Y. B. 44 Lib. Ass. 30; Y. B. 8 Hen. IV. f. 1, pl. 2, Fitz. Cor. 71; or claiming benefit of clergy: Y. B. 1 Hen. IV. f. 4, pl. 5; Y. B. 10 Hen. IV. f. 5, pl. 18, Fitz. Cor. 466; Y. B. 2 R. III. f. 12, pl. 31; Y. B. 3 Hen. VII. f. 12, pl. 10.
[4 ]Supra, n. 2, p. 419.
[5 ]The appellor succeeded in doing so in the case reported in Sel. Pl. Cor., 1 Seld. Soc’y, No. 192, and the champion with special leniency was condemned to the loss of one of his feet, instead of losing both foot and fist.
[1 ]As there was no appeal for a trespass upon land, Sel. Pl. Cor. (Seld. Soc’y), No. 35, the action of trespass quare clausum fregit was brought into the royal courts directly from the popular courts.
[2 ]In one case the defendant offered wager of battle and the plaintiff agreed, but the court would not allow it. Y. B. 32 & 33 Ed. I. 319.
[1 ]Bract. 151. To the same effect, Bract. 103 b, 146 a.
[2 ]1 Nich. Britt. 56; Fleta, Lib. 1, c. 39.
[3 ]Book II. c. 16 (Seld. Soc’y).
[4 ]For instances of appeals by bailees see Sel. Pleas of the Crown, Nos. 88 and 126, and for a recognition of the bailee’s right in later times Fitz. Cor. 100 (45 Ed. III.); Y. B. 2 Ed. IV. f. 15, pl. 7; Keilw. 70, pl. 7.
[5 ]Y. B. 16 Ed. II. 490; Y. B. 1 Ed. III. f. 22, pl. 11. The owner could not have the action against a second trespasser, for the possession of the first trespasser, being adverse to owner, could not be regarded as constructively the owner’s
[6 ]1 Brunner, Deutsche Rechtsgeschichte, 509.
[7 ]Y. B. 16 Ed. II. 490; Y. B. 5 Ed. III. f. 2, pl. 5.
[1 ]Y. B. 48 Ed. III. f. 20. pl. 16.
[2 ]Y. B. 10 Hen. VI. f. 25, pl. 86.
[3 ]Ward v. Macaulay, 4 T. R. 489.
[4 ]Per Bayley, B., as cited in 2 Russ. Crimes (5th ed.), 245. The same distinction is made in 1 Hale P. C. 513.
[5 ]Y. B. 20 Hen. VII. f. 1, pl. 1. But in this same case the right of a distrainor to have trespass was denied.
[6 ]Y. B. 2 Edw. IV. f. 15, pl. 7, per Littleton; Heydon’s Case, 13 Rep. 69; Bloss v. Holman, Ow. 52, per Anderson, C. J.; Goulds. 66, pl. 10, 72, pl. 18, s. c.
[7 ]The master could bring an appeal against a thief and offer to prove by the body of his servant who saw the theft, and the servant would accordingly charge the appellee of the same theft, and offer to prove by his body. 1 Rot. Cur. Reg. 51; 3 Bract. Note Book, No. 1664. See also Y. B. 30 & 31 Ed. I. 542; Fitz. Replev. 32 (19 Ed. III.).
[8 ]Pl. Ab. 336, col. 2, rot. 69 (14 Ed. II.); ibid. 346, col. 2, rot. 60 (17 Ed. II); Y. B. 1 Hen. IV. f. 4, pl. 5.
[1 ]Y. B. 11 Hen. IV. f. 23, pl. 46; Y. B. 8 Ed. IV. f. 6, pl. 5; Heydon’s Case, 13 Rep. 67, 69; Swire v. Leach, 18 C. B. n. s. 479. There are numerous cases in this country to the same effect. See, however, Claridge v. South Staffordshire Co., , 1 Q. B. 422. [Overruled by The Winkfield  P. 42.]
[2 ]Y. B. 11 Hen. IV. f. 23, pl. 46.
[3 ]Heydon’s Case, 13 Rep. 67, 69; Brierly v. Kendall, 17 Q. B. 937.
[4 ]Y. B. 21 Hen. VI. f. 15, pl. 29.
[5 ]Br. Ab. Tresp 221, 130; Chinnery v. Vial, 5 H. & N. 288, 295. See also Y. B. 21 & 22 Ed. I. 589. [Y. B. 1 Hen. VI. 7, pl. 30.]
[1 ]Trespass for the destruction of a chattel has been allowed from very early times. Y. B. 1 Ed. II. 41: Y. B. 11 Ed. II. 344; Y. B. 2 Ed. III. f. 2, pl. 5; Watson v. Smith, Cro. El. 723. There is in the Registrum Brevium no writ of trespass for a mere injury to a chattel, not amounting to its destruction. Presumably it was thought best that plaintiffs should seek redress for such minor injuries in the popular courts. There is an instance of such an action in 1247 in a manorial court of the Abbey of Bec. Sel. Pl. Man. Ct. (Seld. Soc’y) 10. In later times the remedy in the King’s Bench was by an action on the case. Slater v. Swan, 2 Stra. 872. See also Marlow v. Weekes, Barnes’ Notes, 452. Finally, trespass was allowed without question raised. Dand v. Sexton, 3 T. R. 37.
[2 ]Pl. Ab. 265, col. 2, rot 8 (32 Ed. I.)
[3 ]5 Rot. Parl. 139 b. (The petition ibid. 399 a seems to be the same petition.)
[4 ]Y. B. 21 Ed. IV. f. 74, pl. 6; Day v. Austin, Ow. 70; Wilson v. Barker, 4 B. & Ad. 614.
[5 ]Bract. 164, 172, 175 b; 2 Bract. Note Book, No. 617; Y. B. 37 Hen. VI. f. 35, pl. 22; Y. B. 13 Hen. VII. f. 15, pl. 11; Symons v. Symons, Hetl. 66.
[1 ]2 Bract. Note Book, Nos. 617 and 1191.
[2 ]Y. B. 21 Ed. IV. f. 74, pl. 6. See Essay No. 67, post.
[3 ]Br. 172.
[4 ]“If the taker or detainer admit the bailiff to view, and avow the thing distrained to be his property, so that the plaintiff has nothing therein, then the jurisdiction of the sheriff and bailiff ceases. And if the plaintiff is not a villein of the deforcer, let him immediately raise hue and cry; and at the first county court let him sue for his chattel, as being robbed from him, by appeal of felony if he thinks fit to do so.” 1 Nich. Britt. 138. In Y. B. 21 & 22 Ed. I. 106, counsel being asked why the distrainor did not avow ownership when the sheriff came, answered: “If we had avowed ownership he would have sued an appeal against us.”
[5 ]Y. B. 32 & 33 Ed. I. 54.
[1 ]The argument of the defendant, “And although we are come to court on your suit, we shall not be in a worse plight here than before the sheriff; for you shall be driven to your writ of trespass or to your appeal, and this writ shall abate,” though supported by the precedents, was overruled. Y. B. 5 Ed. III. f. 3, pl. 11; see Essay No. 67, post.
[2 ]2 Roll. Ab. 561 [G], 7. The Year Book supports Rolle.
[3 ]1 Nich. Britt. 68. See ibid. 215: “No person can detain from another birds or beasts, ferae naturae, which have been domesticated, without being guilty of robbery or of open trespass against our peace, if due pursuit be made thereof within the year and day, to prevent their being claimed as estrays.”
[4 ]Y. B. 33 Hen. VI. f. 26, pl. 12.
[5 ]Y. B. 16 Hen. VII. f. 2, pl. 7; 1 Ames & Smith, Cases on Torts. 252, 253, n. 1.
[1 ]“If I refuse to give up the distress, still he shall not have trespass against me, but detinue, because it was lawful at the beginning when I took the distress; but if I kill them or work them for my own account, he shall have trespass. So here, when he found the charters it was lawful, and although he did not give them up on request, he shall not have trespass, but detinue against me, for no trespass is done yet; no more than where one delivers goods to me to keep and redeliver to him, and I detain them, he shall never have trespass, but detinue against me causa qua supra.” Y. B. 33 Hen. VI. f. 26, pl. 12.
[2 ]See Littleton’s own statement when judge in Y. B. 13 Ed. IV. f. 6, pl. 2. According to Y. B. 2 Rich. III. f. 15, pl. 39: “It was said by some that if one loses his goods and another finds them, the loser may have a writ of trespass if he will, or a writ of detinue.” In East v. Newman (1595), Golds. 152, pl. 79, a finder who refused to give up the goods to the owner was held guilty of a conversion, Fenner, J., saying: “For when I lose my goods, and they come to your hands by finding, and you deny to deliver them to me, I shall have an action of trespass against you, as 33 Hen. VI. is.”
[3 ]Isaac v. Clark, 1 Roll. R. 126.
[1 ]“The distrainor neither gains a general nor a special property, nor even the possession in the cattle or things distrained; he cannot maintain trover or trespass. . . . It is not like a pledgee, for he has a property for the time; and so of a bailment of goods to be redelivered, bailee shall have trespass against a stranger, because he is chargeable over.” Per Parker, C. B., Rex v. Cotton, Parker, 113, 121. See also Y. B. 21 Hen. VII. f. 1, pl. 1; Whitly v. Roberts, McClell. & Y. 107, 108; 2 Selw. N. P. (1st ed.) 1362; 2 Saund. (6th ed.) 47 b, n. (c).
[2 ]“He shall not show in the writ to whom the property of the cattle doth appertain, unless he choose to do so.” Fitz. N. B. 100. Compare Bursen v. Martin, Cro. Jac. 46, Yelv. 36, 1 Brownl. 192, s. c., in which case a count in trespass “Quare equum cepit a persona querentis” was adjudged bad for not alleging the horse to be “suum.”
[3 ]Supra, p. 428. See also Essay No. 67, post.
[1 ]See Mellor v. Leather, 1 E. & B. 619. Replevin against one, who took as finder, was allowed in Taylor v. James, Godb. 150, pl. 195.
[2 ]3 Bl. Com. 146.
[3 ]1 Sch. & Lef. 327.
[4 ]George v. Chambers, 11 M. & W. 149.
[5 ]Mennie & Blake, 6 E. & B. 847. In many jurisdictions in this country, however, with or without the aid of a statute, replevin became concurrent with detinue.
[6 ]A buyer could also bring detinue against the seller for the chattel sold but not delivered. But the position of the seller after the bargain was essentially that of a bailee. For an early case of detinue by a buyer, see Sel. Pl. Man. Cts., 2 Seld. Soc’y (1275), 138. The count for such a case is given in Novæ Narrationes, f. 68. See also Y. B. 21 Ed. III. f. 12, pl. 2.
[7 ]Y. B. 3 Ed. II. 78; Y. B. 6 Ed. II. 192. Compare Y. B. 20 & 21 Ed. I. 193. After the scope of detinue was enlarged, a traverse of the bailment became an immaterial traverse. Gledstane v. Hewitt, 1 Cr. & J. 565; Whitehead v. Harrison, 6 Q. B. 423, in which case the court pointed out a serious objection to the modern rule.
[1 ]Y. B. 20 & 21 Ed. I. 189.
[2 ]Y. B. 38 Ed. III. f. 1, pl. 1; 1 Chitty Pl. (7th ed.) 104, 138.
[3 ]Y. B. 7 Hen. IV. f. 6, pl. 37.
[4 ]Atwood v. Ernest, 13 C. B. 881.
[5 ]Y. B. 8 Ed. II. 270; Y. B. 49 Ed. III. f. 13, pl. 6, because “they (the owners) were not parties to the contract and delivery;” Bellewe, Det. Charters, 13 R. II.
[6 ]Whitehead v. Harrison, 6 Q. B. 423, citing many precedents.
[7 ]Y. B. 20 Hen. VI. f. 16, pl. 2. To the same effect, 7 Ed. III., Stath. Abr., Detinue, pl. 9; Y. B. 17 Ed. III. f. 45, pl. 1; 20 Ed. III., Fitz. Abr. Office del Court, 22.
[8 ]L. R. 6 C. P. 206; Ganley v. Troy Bank, 98 N. Y. 487, accord.
[1 ]Reeve v. Palmer, 5 C. B. n. s. 84. The early authorities are cited by Professor Beale in Essay No. 54, ante.
[2 ]Wheatley v. Lowe, Palm. 28; Cro. Jac. 668, s. c. See Essay No. 59, ante.
[3 ]Heusler, Die Gewere, 487; Carlin, Niemand kann auf einen Anderen mehr Recht ubertragen als er selbst hat, 42, 48; Jobbé-Duval, La Revendication des Meubles, 80, 165.
[4 ]Y. B. 24 Ed. III. f. 41, A, pl. 22.
[5 ]Y. B. 43 Ed. III. f. 29, pl. 11.
[6 ]In Sel. Cas. in Ch., 10 Seld Soc’y No. 116 (1413-1417), a plaintiff, before going to Jerusalem, had bailed a coffer containing title deeds and money to his mother. The mother died during his absence, and her husband, the plaintiff’s stepfather, refused to give up the coffer to the son on his return. The plaintiff brought his bill in chancery alleging that “because he [stepfather] was not privy or party to the delivery of the coffer to the wife no action is maintainable at common law, to the grievous damage,” etc., “if he be not succoured by your most gracious lordship where the common law fails him in this case.” See also Y. B. 20 & 21 Ed. I. 189.
[1 ]Y. B. 16 Ed. II. 490.
[2 ]Y. B. 29 Ed. III. 38, B, per Wilby, J.; Y. B. 9 Hen. V. f. 14, pl. 22; Y. B. 9 Hen. VI. f. 58, pl. 4. Paston, J. “The count is good enough notwithstanding he does not show how the deed came to defendant, since he has shown a bailment to B. (original bailee) at one time.” Martin, J. “He ought to show how it came to defendant.” Paston, J. “No, for it may be defendant found the deed, and if what you say is law, twenty records in this court will be reversed.”
[3 ]Y. B. 11 Hen. IV. f. 46, B, pl. 20; Y. B. 12 Ed. IV. f. 11, pl. 2, and f. 14, pl. 14; Y. B. 10 Hen. VII. f. 7, pl. 14.
[4 ]Y. B. 22 Ed. IV. f. 6, pl. 22. In Keilw. 42, pl. 7, Vavasour, J., said, in 1501, that the subpœna was never allowed against the heir until the time of Henry VI., and that the law on this point was changed by Fortescue, C. J.
[5 ]Ames, Cases on Trusts (2d ed.), 374, n.
[1 ]Anon., Keilw. 46, pl. 7. See also Ames, Cases on Trusts (2d ed.), 282-285.
[2 ]Wo man seinen Glauben gelassen hat, da muss man ihn wieder suchen.
[3 ]This same inability explains the late development of assumpsit upon promises implied in fact, and of quasi-contracts. The necessity of the invention of the writ quare ejecit infra terminum as a remedy for a termor, who had been ousted by his landlord’s vendee, was due to this same primitive conception, for the vendee was not chargeable by the landlord’s contract.
[1 ]Sel. Pl. Man. Cts., 2 Seld. Soc’y (1281), 31. “Maud, widow of Reginald of Challon, has sufficiently proved that a certain sheep (an estray) valued at 8d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges John Ironmonger and John Roberd; and she gives the lord 3d. for his custody of it.” There is a similar case in the Court Baron, 4 Seld. Soc’y (1324), 144.
[2 ]3 Bract. Note Book, No. 1115.
[3 ]Adiratus is doubtless a corruption of adextratus, i. e., out of hand. In the precedents of trover and detinue sur trover in Coke’s Entries, the plaintiff alleged that he casually lost the chattel “extra manus et possessionem.” Co. Ent. 38, pl. 31; 40, pl. 32; 169, d, pl. 2.
[4 ]“And if the lord avow it to be his own, the person demanding it may either bring an action to recover his beast as lost (adirrée), in form of trespass, or an appeal of larceny by words of felony.” Britton, f. 27. See also Britton, f. 46.
[1 ]Bract. 150 b. See also Fleta, 55, 63.
[2 ]2 Bract. Note Book, No. 824. The plaintiff “dixit quod idem Willelmus in pace dei et Dom. Regis et ballivorum in juste detinuit ei tres porcos qui ei fuerunt addirati, et inde producit sectam quod porci sui fuerunt et ei porcellati et postea addirati.” William disputed the claim, and the plaintiff then charged William as the thief “et parata fuit hoc disracionare versus eum, sicut femina versus latronem, quod legale catallum suum nequiter ei contradixit.”
[3 ]20 Ed. I. 466. “Note that where a thing belonging to a man is lost (endire), he may count that he (the finder) tortiously detains it, etc., and tortiously for this that whereas he lost (ly fut endire) the said thing on such a day, etc., he (the loser) on such a day, etc., and found it in the house of such an one and told him, etc., and prayed him to restore the thing, but that he would not restore it, etc., to his damage, etc.; and if he will, etc. In this case the demandant must prove by his law (his own hand the twelfth) that he lost the thing.”
[1 ]In Y. B. 2 Ed. III. f. 2, pl. 5, there is this dictum by Scrope, J.: “If you had found a charter in the way, I should have a recovery against you by præcipe quod reddat.”
[2 ]Y. B. 44 Ed. III. f. 14, pl. 30. See also 13 Rich. II., Bellewe, Det. of Chart. Detinue against husband and wife. Count that they found the charters.
[3 ]Y. B. 33 Hen. VI. f. 26, pl. 12.
[1 ]Littleton’s remark seems to have been misapprehended in 2 Pollock & Maitland, 174. The innovation was not in allowing detinue where there was no bailment, but in describing the defendant as a finder. The old practice was to allege simply that the goods came to the hands of the defendant, as in Y. B. 3 Hen. VI. f. 19, pl. 31. See also Isaac v. Clark, 1 Bulst. 128, 130. In 1655 it was objected to a count in trover and conversion that no finding was alleged, but only a devenerunt ad manus. The objection was overruled Hudson v. Hudson, Latch, 214.
[2 ]A similar count in Lib. Int. f. 71.
[1 ]Y. B. 33 Hen. VI. f. 44, pl. 7. See also Y. B. 9 Hen. VI. f. 60, pl. 10; Y. B. 2 Ed. IV. f. 5, pl. 9, per Littleton; Y. B. 12 Ed. IV. f. 13, pl. 9; Rook v. Denny, 2 Leon. 192, pl. 242.
[2 ]See Williams v. Archer, 5 C. B. 318, for the form of judgment in detinue.
[3 ]Y. B. 18 Ed. IV. f. 23, pl. 5: “If I deliver my clothes to you to keep for me, and you wear them so that they are injured, I shall have an action of detinue, . . . and afterwards an action on the case for the loss sustained by your using the clothes.”
[4 ](1510) Keilw. 160, pl. 2.
[1 ]Y. B. 12 Ed. IV. f. 13, pl. 9. See also Y. B. 9 Ed. IV. f. 53, pl. 15, per Billing, J.
[2 ]Y. B. 18 Ed. IV. f. 23, pl. 5.
[3 ]The allegation of conversion occurs again in Y. B. 20 Hen. VII. f. 4, pl. 13; Y. B. 20 Hen. VII. f. 8, pl. 18; Mounteagle v. Worcester (1556), Dy. 121 a. The earliest precedents using the words “converted to his own use” are in Rastall’s Entries, 4, d, pl. 1 (1547) Ibid. 8, pl. 1. In the reign of Elizabeth it was common form to count upon a finding and conversion.
[4 ]Y. B. 18 Ed. IV. f. 23, pl. 5; Y. B. 27 Hen. VIII. f. 25, pl. 3. “It is my election to bring the one action or the other, i. e., detinue or action on my case at my pleasure.”
[5 ]Keilw. 160, pl. 2. To same effect, Vandrink v. Archer, 1 Leon. 221, a sale by a finder. The judges thought, however, that an innocent sale would not be conversion. But this dictum is overruled by the later authorities. Consol. Co. v. Curtis,  1 Q. B. 495; 1 Ames & Smith, Cases on Torts, 328, 333, n. 4.
[6 ]Basset v. Maynard, 1 Roll Ab. 105 (M), 5.
[7 ]Bishop v. Montague, Cro. El. 824, Cro. Jac. 50.
[1 ]Leverson v. Kirk, 1 Roll. Ab. 105 (M), 10.
[2 ]Cro. Car. 89.
[3 ]Supra, 429.
[4 ]Goldesb. 152, pl. 79; Cro. El. 495, s. c.
[5 ]Clayt. 57, pl. 99.
[6 ]Clayt. 127, pl. 227.
[7 ]Strafford v. Pell, Clayt. 151, pl. 276.
[8 ]p. 86.
[9 ]3 Keb. 282. See also Scot and Manby’s Case (1664), 1 Keb. 449, per Bridgman.
[1 ]Even here the bailee was chargeable in case, i. e. assumpsit.
[2 ]In 1833, the defendant in detinue lost his right to defend by wager of law, and by the Common Law Procedure Act of 1854, c. 78, the plaintiff gained the right to an order for the specific delivery of the chattel detained. Under the influence of these statutory changes, detinue has regained some of its lost ground.
[3 ]Cro. El. 435.
[4 ]Noy, 46.
[5 ]Hutt. 10.
[6 ]5 Burr. 2657.
[7 ]1 Ames & Smith, Cases on Torts, 274, n. 3.
[1 ]Thurston v. Blanchard, 22 Pick. 18; 1 Ames & Smith, Cases on Torts, 287, 288, n. 2.
[2 ]Ex parte Dumas, 2 Ves. 583.
[3 ]Ex parte Pease, 19 Ves. 46: “If the doctrine of those cases is right, in which the court has struggled upon equitable principles to support an action of trover, these bills might be recovered at law; but there is no doubt that they might be recovered by a bill in equity.”
[1 ]This Essay was first published in the Columbia Law Review, 1903-1904, Vol. III, pp. 546-573, Vol. IV, pp. 33-56, and has been revised by the author for this Collection. The second part of the original essay, commenting on the theory and policy of the present law, is here omitted.
[2 ]A biographical sketch of this author is prefixed to Essay No. 20, in Volume. I of this Collection.
[1 ]Mr. Frank Carr suggests, in his admirable article on defamation in the Law Quarterly Review, xviii, 255, 388, that in this respect we are sharing to some extent the fate of the Roman contractual system; formal in character, but with some contracts privileged to be formless. And the measure of the comparative failure of the Roman contractual system, as contrasted with contract, as interpreted by the doctrine of consideration, is the measure of the inadequacy of our law of defamation.
[2 ]The principles of Roman law lie at the basis of most of the foreign systems of law. In the principal continental systems there is no fundamental distinction as to right of action between written and spoken defamation. The penalty may be (in Germany always is) higher in the case of writing, but the cause of action is the same. In the civil action, as a rule, only actual damages can be recovered. The defamer is punished by concurrent criminal actions, in which the penalties are heavier when the defamation was public (also, in Germany, when it can be shown that the defendant knew his statements were false). The truth is not always a defence. In the case of defamatory statements published in newspapers, French law admits proof of truth only when the statements refer to official acts. In German law the truth is regularly admitted; but it does not avert punishment in criminal actions if the statement was made in an insulting manner. By the law of Scotland every defamatory statement, without regard to the form in which it is made, is actionable. The elements of the offence are the injury sustained and the insult for which solatium is due. The common law distinctions are likewise unknown in Louisiana.
[3 ]Lex Salica, tit. 30 (Hessels and Kern, col. 181).
[1 ]Ancienne Coutume, Cap. 76 (ed. de Gruchy, 197). Inasmuch as these penalties were regarded as compensation to the wronged individual, in exchange for his older right of private vengeance, there is a tendency to make the penalty correspond to the degree of irritation which the wrong would naturally excite. Thus, in early Icelandic law, the man accused of cowardice had the right of slaying his accuser. Prof. Munroe Smith in Univ. Enc., tit. Libel and Slander.
[2 ]Pollock and Maitland, Hist. of English Law, ii. 535, 536.
[3 ]Quadripartitus (ed. Liebermann, 67); Wilk., Leg. Ang. Sax., 41. The laws of Edgar and Canute are to the same effect. Ib. 64, 136.
[4 ]Pollock and Maitland, ii, 536.
[5 ]Select Pleas in Manorial Courts (Selden Soc. Pub.), 19, 36, 82, 95, 109, 116, 143, 170; The Court Baron (Selden Soc. Pub.), 48, 57, 61, 125, 133, 136. Cf. Prof. Maitland in Green Bag, ii. 5, 6, particularly his instructive extract from a hypothetical case found in a book of precedents for pleadings in manorial courts. The manorial rolls indicate that the defendant might allege that his words were true. Select Pleas in Manorial Courts, 82. Thus early slander is said to have been uttered of malice aforethought, and sometimes the plaintiff alleges special damage. Pollock and Maitland, ii, 536.
[1 ]Law Quar. Rev., xviii, 264-267.
[2 ]Jenks, Law and Politics in the Middle Ages, 29.
[3 ]N. St. John Green in Am. Law Rev., vi, 595.
[1 ]For the canon law in general see the luminous chapter in Pollock and Maitland, i. 88. With particular reference to defamation, see the very learned article on slander and libel by N. St. John Green in American Law Rev., vi, 593; also Law Quar. Rev., xviii, 267 et seq. Mr. Carr points out the curious anticipation of the punishments suggested by Bentham.
[1 ]13 Edward I, c. 1.
[2 ]9 Edward II, c. 4.
[3 ]Edward III, c. 11.
[4 ]See English Political Songs (Camden Soc. Pub.), 155; Chaucer’s reference to the Sompnour in the Prologue to the Frere’s Tale. Law Quar. Rev., xviii, 268, 269.
[1 ]Green Bag, ii, 4.
[2 ]16 Charles I, c. 4.
[3 ]13 Charles II, c. 12, s. 4. The limitations of the surviving jurisdiction appear in Crompton v. Butler (1790) 1 Haggard 460.
[4 ]18 & 19 Vic., c. 41.
[5 ]Law Quar. Rev., xviii, 270-272.
[6 ]Ware v. Johnson (1755) 2 Lee 103.
[7 ]3 Edward I, c. 34; Statutes at Large, i. 97. A later statute particularizes the “great men of the realm”: “Prelates, Dukes, Earls, Barons, and great men of the realm, and also of the Chancellor, Treasurer, Clerk of the Privy Seal, Steward of the King’s House, Justices of the one bench or the other, and of other great officers of this realm. 2 Richard II, c. 5.
[1 ]12 Richard II, c. 11; Statutes at Large, ii, 305.
[2 ]See Lord Townsend v. Dr. Hughes, 2 Mod. 150.
[3 ]The first civil action was brought more than one hundred years after the date of the last statute defining the offence. 10 Rep. 75. Lord Townshend v. Dr. Hughes, 2 Mod. 150.
[4 ]Statute Law Revision Act, 50 & 51 Vic., c. 59 (1887).
[1 ]In 1613 James I issued a royal edict against duelling, and this was supplemented in the following year by a Star Chamber decree on the same subject. From this time on the courts waged a continuous hostility to the duel in all its forms; they refused to regard it as in any way an affair of honor, but held it to be an unlawful assembly in an aggravated form.
[1 ]Law Quar. Rev., xviii, 391. For a further account of this jurisdiction, see Carr, supra, 260-263, and Odgers, Digest of Libel and Slander, ch. Iv, where the cases are cited.
[2 ]Jenks, Law and Politics in the Middle Ages, 43, 44.
[3 ]Rat. Parl., i, 133; Green Bag, ii, 4.
[1 ]Holt on Libel 23; Law Quar. Rev., xviii, 388. According to Mr. Carr these few cases are unimportant. The earliest case, from the Year Books, was complicated with contempt of court. Of the two latest, from Brooke’s Abridgment, the first was to the effect that a charge of being a “hereticke or advowterer” was actionable only in a spiritual court, while for calling one a bawd an action lay in both courts. The second holds that an action would lie for calling a man a “theefe.” See also the entry from the Exchequer roll of 1265 in Prynne’s Animadversions on Coke’s Fourth Institute, 58; Pollock and Maitland, ii. 535.
[2 ]Prof. Maitland in Green Bag, ii, 7; The Court Baron (Selden Soc. Pub.), 116.
[1 ]Imputations tending to disinherison come properly under this branch of the law.
[2 ]Green Bag, ii. 4. But, as Prof. Maitland says, the process is not clear. For instance, we are told that the imputation conveyed by the word “meretrix” is merely spiritual. But it was not so regarded by the local courts in the middle ages. Ib. 7.
[3 ]3 Bulstrode 167.
[1 ]Small v. Hammond, 1 Bulstrode 40.
[2 ]Baker v. Pierce, 6 Modern, 23.
[3 ]A plausible explanation of the method by which the common law courts acquired jurisdiction in defamation, which would also explain the process of selection of actionable words, was advanced by N. St. John Green in the very interesting article to which reference has already been made (Am. Law Rev., vi, 593, 607 et seq.) It was an established principle of law from the time of Bracton that the accessorium must come under the same jurisdiction as the principale; that is, jurisdiction over a thing drew with it jurisdiction over all things accessory. It was by means of this rule that the court of King’s Bench, by the fiction that the defendant was in its custody, and the court of Exchequer, by the fiction of indebtedness to the crown, were enabled to extend their respective jurisdictions over most of the matters originally pertaining exclusively to the Common Pleas. Upon this principle the common law courts may have worked in wresting from the spiritual courts jurisdiction over defamation.
[1 ]Formed in 1557. It was composed of ninety-seven London stationers and their successors.
[1 ]The chancellor, treasurer, lord privy seal, a bishop, a temporal lord, and the two chief justices, or, in their absence, two other judges as assistants. Later the president of the privy council was added.
[1 ]5 Rep. 125, a.
[2 ]Chapter XI “Of Libelling,” page 100 et seq. This treatise was apparently compiled early in the reign of Charles I.
[1 ]Hunter, Roman Law, 20, 148, 149, 1069, citing the provisions of the Institutes and the Digest; Holt on Libel, ch. i; Odgers, Digest of Libel and Slander, 165, 166; Prof. Munroe Smith in Univ. Enc., tit. Libel and Slander; Law Quar. Rev., x, 158; ib. xviii, 256, 257.
[1 ]After describing the different forms of libel, the report concludes in Coke’s usual sententious style with a passage showing that libelling and calumniation is an offence against God. He cites several passages from Scripture, and concludes: “And it was observed that Job, who was the mirror of patience, as appears by his words [Job 30, ver. 7 & 8], became quodammodo impatient when libels were made of him; and therefore it appears of what force they are to provoke impatience and contention.”
[1 ]Hudson, Treatise on the Star Chamber, 104, 107.
[1 ]Bishop, Criminal Law, § 921.
[1 ]13 & 14 Car. ii, c. 33. This act was limited to two years; but it was continued by 16 Car. ii, c. 8.
[2 ]1 Jac. II, c. 17, s. 15. This act was limited to eight years. It was renewed in 1693 for two years.
[3 ]R. v. Harris, 7 How. St. Tr. 927.
[1 ]R. v. Carr, 7 ib. 1114. Long afterwards Lord Camden pronounced this resolution of the judges “extra judicial and invalid.” Entick v. Carrington, 19 How. St. Tr. 1070.
[2 ]Frank Carr in Law Quar. Rev., xviii, 393, 394. See also J. R. Fisher in Law Quar. Rev., x. 158.
[3 ]Hardres 470; Skinner 124.
[4 ]Law Quar. Rev., xviii, 394, 395.
[1 ]Fitzgibbon 254.
[2 ]4 Taunton 355.
[3 ]For the adoption of the distinction in American law, see Dole v. Lyon (N. Y., 1813) 10 Johns. 447; Cooper v. Greeley (N. Y., 1845) 1 Denio 347 at 362; Clark v. Binney (Mass. 1824) 2 Pick, 113; Colby v. Reynolds (1834) 6 Vt. 489.
[1 ]This Essay first appeared in the Harvard Law Review, 1894, vol. VII, pp. 315, 383, 442, and has been revised and brought down to date by the author for this Collection; most of the quotations from English cases given in the original article, in the second and third parts, have been here omitted.
[2 ]A biographical note of this author is prefixed to Essay No. 40, in Volume II of this Collection.
[1 ]Compare Holmes, Common Law, cc. iii., iv., esp. pp. 92 ff., 144 ff.; Pollock, Torts, p. 19. It is here assumed, for present purposes, that in the few classes of cases where actual malicious motive is material, no question of responsibility, properly considered, is involved, but rather a question of the loss of a privilege; as pointed out by Mr. Justice Holmes in his article on Privilege, Malice, and Intent (Harvard Law Review, VIII, 1; 1894) and by the present author in an article on the Tripartite Division of Torts (id., VIII, 200, 377; 1894). Professor Whittier, in his article on Mistake in the Law of Torts (id. XVI, 335; 1902) does not accept this analysis.
[1 ]The keenest and most comprehensive analysis of these related features of primitive life is to be found in The Origin and Development of Moral Ideas, by Edward Westermarck (lecturer at Helsingfors and at London; Eng. ed. 1906), vol. I (vol. II, 1908, has little). Next in suggestiveness and insight should be mentioned G. Glotz’ La solidarité de la famille dans le droit criminel en Grèce (Paris, 1904). A general survey of the primitive attitude in English law is given in Professor J. B. Ames’ article on “Law and Morals,” 1908 (Harvard Law Review, XXII, 97).
[2 ]Westermarck, supra.
[3 ]Westermarck, Glotz, supra.
[4 ]Spencer, Ceremonial Institutions, 10.
[5 ]Westermarck, Tylor.
[6 ]Tylor, Primitive Culture (3d Amer. ed.), ii. 380.
[7 ]Tylor, Ib., ii. 429.
[8 ]Lea, Superstition and Force, passim.
[9 ]Brunner, Deutsche Rechtsgeschichte, i. 181, ii. 349; Wort und Form in altfranzös. Prozess, 1868 (reprinted in Revue Critique de Législ. et de Jurisp., 1871-72, and more recently in his Forschungen, 1894).
[1 ]K. v. Amira, Nordgermanisches Obligationenrecht, 1882, I, 389-91; H. Matzen, Forlaesninger over den danske Retshistorie, 1897, II, 48-57; F. Brandt, Forlaesninger over den norske Retshistorie, 1883, II, § 50, pp. 38-46.
[2 ]S. J. Fockema-Andreae, Het oud Nederlandsch burgerlijk Recht, 1906, II, 115-123; L. A. Warnkoenig, Flandrische Staats- und Rechtsgeschichte, 1842, III, 164, 183, 200; A. His, Das Strafrecht der Friesen, 1901, § 46, pp. 37-61.
[3 ]Ancient Laws of Ireland, 1879, IV, 247; H. d’Arbois de Jubainville, Etudes sur le droit celtique, 1895, I, §§ 20, 22, pp. 184, 190.
[4 ]E. Glasson, Histoire du droit et des institutions de la France, 1889, III, 560.
[5 ]B. Oliver, Historia del derecho de Cataluña etc., 1879, III, 339.
[6 ]A. Pertile, Storia del diritto italiano, 1892, 2° ed., V, § 170, pp. 58-64; C. Calisse, Storia del diritto penale italiano, 1895, §§ 3-7, pp. 4-13; G. Salvioli, Trattato di storia del diritto italiano, 1908, 6° ed., § 540, p. 720.
[7 ]W. A. Maceiowski, Slavische Rechtsgeschichte (Germ. tr.), 1839, IV, 278, 281, 301, 305; H. Jirecek, Das Recht in Boehmen und Maehren geschichtlich dargestellt, 1865, vol. I, pt. 2, p. 142.
[8 ]A. v. Timon, Ungarische Verfassungs- und Rechtsgeschichte, 1904 (Germ. tr. Schiller), 421.
[9 ]G. Glotz, La solidarité de la famille dans le droit criminel en Grèce, 1904, pp. 48, 165. It is true that B. W. Leist, in his Graeco-Italische Rechtsgeschichte, 1884, pp. 286, 333, 344, 350, 394-406, denies that even in the most primitive Greek period a distinction was made between intentional and non-intentional harms; but in this he stands alone; though Freudenthal, in Mommsen’s Zum aeltesten Strafrecht (cited infra, n. 4) inclines to that view. However, Glotz has once for all demonstrated the matter. It is doubtless to be conceded that the Greeks developed the distinction at an earlier stage of their history than any other people; this was simply one of the many marks of their precocious sense of ethics in justice. The later Greek ideas are fully discussed in R. Loening’s Die Geschichte der strafrechtliche Zurechnungslehre, 1905, vol. I: Aristoteles; on which an elaborate critique is made by O. Kraus, in Der Gerichtsaal, 1904, LXV, 153, 172, “Die Zurechnungslehre des Aristoteles.”
[10 ]T. Mommsen, Zum aeltesten Strafrecht der Kulturvoelker, Fragen zur rechtsvergleichung, 1905, p. 3 (with contributions also on the Greek, Hindu, Arab, Islamic, and Germanic laws, by various scholars, and another on Roman law, by Hitzig, agreeing with Mommsen); Pernice, Labeo, 1873-1900, I, pp. 117, 216, II, pp. 5, 36, 49; Beschuetz, Die Fahrlaessigkeit, infra, note 7; R. v. Ihering, Das Schuldmoment im Roemischen Recht (in his Vermischte Schriften, 1879), pp. 155, 163, 200 (“Is the eye of primitive man closed to the discrimination of culpable and innocent intent? . . . [It is, for] a wrong is estimated, not according to its cause, but its effect,—not according to some element in the person of the doer, but from the standpoint of the injured party”); Hepp, Die Zurechnung auf dem Gebiete des Civilrechts, 1838, passim; Mommsen, Römisches Strafrecht, 1899, p. 85 (“the idea of wrong requires an unlawful intent in a person having capacity; but this fundamental principle of developed criminal law is in the origins of that subject an alien one.”)
[1 ]I. J. M. Rabbinowicz, Législation criminelle du Talmud, 1876, p. 174; J. Thonissen, Etudes sur l’histoire du droit criminel des peuples anciens, 1869, II, 183, 265, App. D; Numbers, XXXV, 22-25, et passim.
[2 ]Thonissen, supra, II, 271; J. Kohler, Zur Lehre von der Blutrache, 1885, p. 23; J. Goldziher, in Mommsen’s Zum aeltesten Strafrecht, supra, 104; Wellhausen, ibid. 96.
[3 ]Thonissen, supra, I, 163, 164; Code of Hammurabi, ed. Harper, §§ 196-208, 249-251.
[4 ]Oldenberg, in Mommsen’s Zum aeltesten Strafrecht, supra, 76; J. Kohler, Das Indische Strafrecht (Zeitschrift fuer vergleichende Rechtswissenschaft, 1903, XVI, pp. 179, 183, note 13); E. P. Buffet, translation of Parajika, III, c. 5 (American Law Review, XLII, 387, 423; 1908).
[5 ]H. Betz, Chinesische Strafrechtsfaelle [der Gegenwart] (Zeitschrift fuer vergleichende Rechtswissenschaft, XXI, 393, 397; 1908). Staunton, tr. of Ta Tsing Leu Lee (Penal Code), 1810, § 292, and App. XI; C. Alabaster, Notes and Commentaries on Chinese Criminal Law, 1899, pp. 260-287; A. Leclère, Recherches sur la législation criminelle des Cambodgiens, 1894, pp. 292, 299, 371.
[6 ]O. Rudorff, Tokugawa Gesetzsammlung (Mittheil. der deutschen Ostasiatischen Gesellschaft, 1889), Art. 71, §§ 36-39, Art. 74 of the Kujikata Osadamegaki of 1742-83; H. Weipert, Das Shinto-Gebet der grossen Reinigung (Der Gerichtsaal, 1904, LXV, 241, 261).
[7 ]Westermarck, Moral Ideas, supra, passim; A. H. Post, Afrikanische Jurisprudenz, 1887, II, § 199, p. 28; A. H. Post, Grundriss der Ethnologischen Jurisprudenz, 1894-5, II, §§ 48-55, pp. 214-233; P. Wilutzky, Vorgeschichte des Rechts, 1903, II, 40; Beschuetz, Die Fahrlaessigkeit innerhalb der geschichtlichen Entwickelung der Schuldlehre, Teil I: Vom primitiven Strafrecht bis zur peinlichen Gerichtsordnung Karls V (No. 76, Ser. XIV, in v. Lilienthal’s Strafrechtliche Abhandlungen, Breslau), 1907, § 2, pp. 8-28. Loening’s notable book (supra, n. 3) is apparently not completed beyond Greek law.
[1 ]So far as regards the many concurring elements that produce this particular principle, it should be noted that Post over-emphasizes the clan-life element, while Girard over-simplifies the problem in noting only the vengeance-instinct. How tangled the primitive elements are can be seen in Westermarck’s masterly chapter, (cited supra, p. 476, note 1), pp. 30-72, 217-231, 241-260, 306.
[2 ]See post.
[3 ]See post.
[4 ]See post.
[1 ]Brunner, Deutsche Rechtsgeschichte (1892), II, 549. “The master was liable for the weregeld of the workman if the latter lost his life in the service, and for the appropriate money-payment if he was injured,—so far as the injury could not be imputed to some third person for whom the master (who had to answer for the misdeeds of his own people) was not responsible. If one who was in the service of another lost his life by misadventure, by reason of a tree or of fire or of water, the accident was imputed to the master as homicidium. If one person sent another away or summoned him on the former’s business, and the latter lost his life while executing the order, the former was taken as the causa mortis.” See LL. Henry I. 90.
[2 ]Brunner, Ib., II, 360. “That the intention to act wrongfully is presumed as of course against the defeated party [in a suit against the judges], and, especially as regards the judges, that the excuse of having judged according to their best knowledge and belief is not allowed, is merely an individual application of a fundamental principle pervading the Germanic penal law, which is to argue without question from the particular external circumstance to the presence of an unlawful intent, and (apart from typical exceptions, not here involved) to treat unintentional misdeeds the same as intentional ones, without allowing proof of the absence of intent.”
[3 ]Brunner, Ib., II, 389. “The earlier times paid no regard to the good faith of the individual oath-helper, in accordance with their general principle of penal law, which without discussion treated the unlawful intent as accompanying the external fact of an offence. . . . The latter development shows the tendency, on the one hand, to increase the punishment for a false oath, but, on the other hand, to distinguish between false oaths sworn wittingly and unwittingly.” It may be suggested that when the learned investigator in these passages speaks, e. g., of “treating the unlawful intent as accompanying, etc.,” he hardly means to attribute to a past age the sentiments peculiar to the present one. The primitive Germans did not “presume” or “impute” an unlawful intent: they simply did not think of the distinction at all. To feel the need of such an element, and to “impute” or “presume” it, marks a later stage of development.
[4 ]Brunner, Ib., II, 558. “The penalty of unintentional misdeeds is parallelled by the general impunity accorded to attempts.” Moreover, though certain acts which fell short of causing death, and yet put life in peril (as pushing into the water, etc.) were treated as lesser offences, somewhat as we treat attempts; yet “it was immaterial whether the result was caused with the intention of killing, or with some other design, or unintentionally” (560).
[1 ]Brunner, Ib., II, 565.
[2 ]LL. H. I. 59, 25; Brunner, Ib., II, 468.
[3 ]Brunner, Ib., II, 575. “From the jural notion that the misdeed in itself puts a man beyond the law, follows fundamentally the penalty on the act of rendering assistance. . . . [This notion] has to do with the idea that the helping of the offender is a mutiny against the common weal, or it springs directly from the principle that he who stands out for the wrongdoer takes upon himself, as against the community, the wrongdoing and its consequences.”
[4 ]Note.—This seems the best place to say, once for all, that the ensuing first part of the essay is for the most part merely a condensation of Prof. Dr. Heinrich Brunner’s article in the Proceedings of the Royal Prussian Academy of Sciences, vol. xxxv., July 10, 1890, “Ueber absichtslose Missethat im altdeutschen Strafrecht,” afterwards reprinted in the learned author’s Forschungen zur Geschichte des deutschen und franzoezischen Rechts (1894).
[1 ]Br., D. Rg. II, 537; 2d ed. 1906, I, § 21, p. 211.
[2 ]In Bugge, Norrven Fornkvaedi (Christiania, 1867), p. 212, is another instance, from the Song of Sigurd, the slayer of the dragon Fafnir. Loki, in company with Odin and Honir, had seen an otter and killed it with a stone; for it had been carrying off the pelts belonging to the gods. But they discovered that the supposed otter was none other than the son of Hreidmar, who had put on the form of an otter; and, for the compensation they were obliged to give, they filled the otter-skin within and covered it without with gold, and gave it to Hreidmar.
[1 ]ad 1439, Richthofen, K. v., Friesische Rechtsquellen, 570; 1840.
[1 ]Walter, Corpus Juris Germanici Antiqui, I, 668. The general dates of these Germanic codes vary from 400 to 900 adcirca. The large collections usually referred to for the texts are Monumenta Germaniae Historiae, Quarto ed., 1888+ (cited M H G), and Schmid’s Gesetze der Angelsachsen, 2d ed. 1858, now superseded by Liebermann’s Die Gesetze der Angelsachsen, 1898-1906; other editions and source-books will be found cited in Br. D. Rg. I, vii.
[2 ]Merkel, Commentatio, 1856, p. 31, fragm. 42.
[3 ]J. Grimm, in Zeitschrift fuer deutsches Recht, V, 17, 18.
[4 ]Westermarck, Origin of Moral Ideas, c. XX. Bracton says (f. 105b): “Crimen vel pœna paterna nullam maculam filio infligere potest;” but this is a borrowed humanity, and does not represent the actual law of his time. By the Golden Bull of Charles IV. in 1356, the lives of the sons of such as conspire to kill an elector of the Imperial Crown are spared by the Emperor’s particular bounty; but they lose all rights of succession and of holding office, “to the end that, being always poor and necessitous, they may forever be accompanied by the infamy of their father, may languish in continual indigence, and may find their punishment in living and their relief in dying.” In Blackstone’s time this corruption of blood still existed, though he disparages it; but the forfeiture of estates he defends on grounds of policy.
[1 ]“By accident and unwittingly.”
[2 ]Van Mieris, Groot Charterbuch van Holland, 4, 800.
[3 ]Beaumanoir (ed. Beugnot, 1847, Salmon, 1899), c. 69.
[4 ]Bouteiller (pub. 1537), ii. 40.
[5 ]I, 23, 15.
[1 ]Selden Society, vol. I. Pleas of the Crown, I, No. 114.
[2 ]Ib., No. 188. See also Bracton, Note-Book, III, 157, No. 1137 (ad 1235-36), where “nescitur adhuc utrum ipsum interfecit per infortunium vel alio modo,” and so the defendant is allowed to abjure the kingdom.
[3 ]Blackstone, Comm. iv. 182-188.
[4 ]Selden Society, vol. I, Pleas of the Crown, I, No. 145.
[5 ]Selden Society, ibid, No. 70. So also Bracton, De Legibus, 1446, mentioning a case of a pardon to a man who defended himself against a burglar in his own house (ad 1234); Bracton, Note-Book, III, 229, No. 1216 (ad 1236-37), where the jury found a killing in self-defence, and “dominus rex de gracia sua, non per judicium, perdonavit ei mortem illam” (1236); also Bracton, N. B. III, 107, No. 1084 (ad 1225). These were before the Statute of Gloucester (1278), cited above. So also the following case: Gross, Select Cases from the Coroner’s Rolls ad 1265-1413, p. 102 (Selden Society, vol. IX; 1895).
[1 ]Mieris, Handvoeren, etc. der Stad Leyden, 289.
[2 ]Boretius, Capitularia, I, 290 (M H G, Sectio II), Cap. Missorum, ch. 15.
[3 ]In old Swedish law accidental killing is not to be punished unless both parties (i. e., the deceased’s relatives, practically) wish it (v. Amira, Altschwedisches Obligationenrecht, 382, 1882). So in old Japan the custom is recorded (Simmons and Wigmore, Notes on Land Tenure, etc., Transactions of the Asiatic Society of Japan, 1891, vol. XIX, p. 121) that the judge may pardon if the deceased’s family withdraw their charge against a murderer; an application of the rule mentioned in Rudorff’s Tokugawa Gesetzsammlung, (cited supra, p. 478), Art. 35 of the Reigaki, giving a case of 1744, and Art. 46 of the Hundred Laws of Iyeyasu, a century earlier; note there the idea of expiation, in that the guilty man then becomes a priest: S. & W. supra. This is probably the transition-form preceding the above stage; first, the family agree to compound for less money, and then the judge compels them to. A curious example of this phase is seen in the LL. Henry I.: where a man falls from a tree and kills another below, he shall be held innocent; yet the blood-feud will be allowed if insisted upon, but it may be carried out in one way only,—the avenger may himself mount the tree, and in turn fall upon the slayer. This is recorded also in Holland (Brieler Rechtsbuch, Matthijssen, 212; pub. in Oude Vaderlandsche Rechtsbronnen, 1880, 1st ser. vol. I), and in a Hindu popular tale (Kohler, Shakespeare in dem Forum der Jurisprudenz, 93; 1883).
[1 ]v. Amira, Altschwedisches Obligationenrecht, 379.
[2 ]Brieler Rechtsbuch, Matthijssen, 210. So also, in maritime law, for a death on shipboard: Fruin, De oudste Rechten der Stad Dordrecht (1882), ii. 52, No. 70; i. 235, No. 79 (Oude Vaderlandsche Rechtsbronnen, 1882, 1st ser. vol. IV); and R. Wagner, Handbuch des Seerechts, 1884, I, 399.
[3 ]For some cases of “misadventure” not particularly significant, see Selden Society, Pleas of the Crown, I, Nos. 81, 132, 156, 203 and Seld Soc. vol. IX, Gross’ Select Cases from the Coroner’s Rolls, pp. 24, 38. The general principle is noted in Bateson’s Borough Customs, 1906, II, Introd. p. 40 (Selden Society, vol. XXI).
[4 ]For the corresponding phases in the noxal action of Roman law, see the following special articles besides the usual treatises: P. F. Girard, quoted ante, p. 480; H. Isay, Die Verantwortlichkeit des Eigenthuemers fuer seine Thiere, in Ihering’s Jahrbuch, 1898, XXXIX, 209-322 (an exhaustive study).
[1 ]Landrecht, ii. 62, Sunesen, 55.
[2 ]Rothar, 326-8, 330.
[3 ]Lex Ang.-W., 52.
[4 ]Lex Sax., 57.
[5 ]Pactus Alam., iii. 17.
[6 ]Lex Fris. Add., 3, 68.
[7 ]Lex Salica, 36.
[8 ]Lex Rip. 46.
[9 ]See note 1.
[10 ]Etablissemens de St. Louis, i. 125; Warnkönig, Flandrische Rechtsgesch., ii. 2. 226 (1265). In Pact. Alam., where a dog bit to death, the half wergeld was allowed; yet the avenger might demand the whole, on condition that he should suffer the dog’s dead body to hang in his doorway till it rotted away (iii. 16).
[1 ]Lex Visig., 8, 4, c. 20. Accord. Schwabenspiegel (Lassberg), 204.
[2 ]C. 24.
[3 ]Abridgment, Barre, 290.
[4 ]Warnkönig, Flandrische Rechtsgeschichte, ii. 2, No. 222; iii. No. 166.
[5 ]Livre des droiz et des commandemens, c. 871.
[6 ]Brandt, Forlaesninger over den Norske Retshistorie, ii. 46.
[7 ]Mitchel v. Alestree, 1 Vent. 295 (1676).
[8 ]For further traces in later times, see Holmes in The Common Law, 22 and ante, in Essay No. 63.
[9 ]Poitou, supra.
[1 ]Bouteiller, Somme Rurale, i. 38; Magk (Norway), in Paul’s Grundriss der germanischen Philologie, ii. 1, 120; Andreae, Stadregt van Vollenhove, i. 316. But the sentiment which ultimately grew up may be early seen in scattered passages: “Car bestes mues n’ont nul entendement, qu’est biens ne quest maus” (Beaumanoir, Coutumes de Beauvoisis, 6, 16).
[2 ]Etablissemens de St. Louis, i. 125; Coutumes de Touraine-Anjou, 114; Livre des droiz, etc., 119; Bouteiller, Somme Rurale, i. 37.
[3 ]K. v. Amira, Thierstrafen und Thierprocesse (1892); E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1907); Westermarck, Origin etc. (cited ante, p. 476), pp. 254-260.
[4 ]C. 36 (later texts).
[5 ]C. 114; Etablissemens de St. Louis, i. 125; Bouteiller, Somme Rurale, i. 38 (where the owner had been warned by the local authorities).
[6 ]Ubi supra, par. 3.
[1 ]J. Grimm, in Zeitschrift fuer deutsches Recht, v. 17-18; Westermarck, Origin, etc. (cited ante, p. 476), p. 262.
[2 ]C. 90, 11.
[3 ]Thorsen, De Stadsretter for Slesvig, etc. (1855), 19, 49, 75, 192.
[4 ]C. 70, 1. This is found in almost the same words in LL. Henry I., 90, 6.
[5 ]No payment need be made.
[6 ]Observe that any one who uses them is liable.
[1 ]Liebrecht, Zur Volkskunde (1879), 313.
[2 ]C. 87, 2.
[3 ]Holmes, Common Law, 25, citing, among other cases, “If my horse strikes a man, and afterwards I sell my horse, and after that the man dies, the horse shall be forfeited” (Plowden, 260). A number of instances will be found in Gross’ Select Cases from the Coroners’ Rolls ad 1265-1413 (Selden Soc. Pub., vol. IX; 1895), pp. 8, 15, 40, 50, 54, 59, 68, 77, 82, 92, 94, 95, 96, 99, 105, 106, 121, 122, 125; Bateson’s Borough Custumals, I, 17 (Selden Soc. Pub. vol. XVIII, 1904). For Roman law, see Girard’s article cited on p. 480, ante. Every one is familiar with the fossil remains of the deodand in the clause of the criminal indictment stating the value of the weapon with which a murder was done.
[4 ]C. 87, 2.
[5 ]C. 18, 2, and see LL. Henry I., 90, passim.
[1 ]C. 58. Cf. also Lex Rip. 70, 2: “Si quis autem fossam vel puteum fecerit, seu pedicam vel balistam incaute posuerit. culpabilis judicetur.”
[2 ]C. 61.
[3 ]C. 36.
[4 ]v. Amira, Nordgermanisches Obligationenrecht, i. 286.
[5 ]Bouteiller, Somme Rurale, i. 39.
[6 ]But as late as 1466 a counsel thus argued in England: “If I am building a house, and when the timber is being put up a piece of timber falls on my neighbor’s house and breaks his house, he shall have a good action, etc.; and yet the raising of the house was lawful, and the timber fell, me invito, etc.” (Fairfax, in the Thorn-cutting case, Y. B. 6 Edw. IV. 7, pl. 18).
[7 ]Deutsche Rechtsgeschichte (1892), II, § 93; see also I, 71, 98.
[1 ]Further authorities on this primitive general notion are given in; Westermarck, Origin, etc. (cited ante, p. 476), pp. 30, 44, 60-70; G. Meyer, Zeitschrift der Savigny-Stiftung fuer Rechtsgeschichte, 1881, II (Germ. Abth.), pp. 83, 90, “Die Gerichtsbarkeit ueber Unfreie und Hintersassen nach aeltestem Recht”; P. Leseur, Nouvelle Revue historique du droit français et étranger, 1888, XII, pp. 576, 657, “Des conséquences du délit de l’esclave dans les Leges Barbarorum et dans les capitulaires”; Jastrow, Zur Strafrechtliche Stellung der Sklaven bei Deutschen und Angelsachsen, 1878, passim (No. 2 in Gierke’s Untersuchungen zur deutschen Rechtsgeschichte).
[2 ]Thorpe, i. 27, 29.
[3 ]C. 59.
[1 ]35, 1; 35, 5. Accord: Pactus Alamannorum, iii. 17; Lex Frisionum, 1, 13 (slave for one third); Lex Bavariorum, 8, 2, 89 (for 20 s.).
[2 ]Laws of Ine, 74.
[3 ]The slave might, in a few communities, merely be set free (as with animals) and the responsibility thus disclaimed; but this was forbidden by a Carolingian capitulary as against peace and order, and persisted only in South France (Br., Pr. Ak., 832). As in the case of animals, the giving of nourishment after the deed was equivalent to a sanctioning by harboring (Br., Pr. Ak. 833).
[4 ]Bracton, De Legibus, f. 124 b, accord.
[5 ]Edict. Chilperic, c. 5.
[6 ]C. 18. Accord. Lex Frisionum, 1, 73; Knut, p. 75; Lex Alamannorum, 78, 6; Rothar (Lombards) 264, 342; Lex Salica, 35, 5 (later texts); Capitularia Ribuaria, Add. 5.
[1 ]Selden Society, vol. II.
[3 ]Abbreviations are here made where feasible.
[4 ]It does not appear whether the merchants were found by the jury to have consented; but if the confession of Simon, as set forth in the next paragraph, was taken as true, then they must have so found. The accusation implies that consent was necessary.
[1 ]Selden Society, vol. IV (ed. Maitland and Baildon).
[1 ]Cf. also Bracton, N. B. III. 131, No. 1114 (ad 1234-1235), where the Prior of St. Swithin was summoned for having a gallows, etc., and violating royal privileges, and answered as to one charge, describing how the men of the place caught a notorious robber and murderer “et illum suspenderunt,” but says “quod factum illum non advocat;” yet the defence was here insufficient, “et Prior in misericordia.”
[1 ]In court.
[2 ]Against the servants.
[3 ]But for some time exceptions remained: Fitzherbert, Abridgment, “Corone,” 148 (1315).
[4 ]This seems indicated by the questions of the steward in the Court Baron cases (with one exception) and the inquiry at the Fair of St. Ives; for in those cases the penal idea would apparently predominate. So also in local customs: Bateson, Borough Customs, I, p. 62 (Selden Soc. Pub. vol. XVIII, 1904).
[1 ]Notwithstanding Glanvil’s and Bracton’s use of the terms “placita criminalia” and “placita civilia.”
[2 ]The situation in the twelfth and thirteenth centuries is somewhat complicated by the responsibilities involved in the frank-pledge police regulations. But there can be no doubt on the evidence that there was a general Germanic notion of responsibility for servants, related closely to the clan or kinship-responsibility which was universal in primitive law, but preceding and independent of the system of communal responsibility known as frank-pledge (whether it was or was not a direct successor of frithborg). This being understood, the authorities of the thirteenth century, rightly read, do not give us any reason to doubt that the responsibility for one’s household was (though in actual content not dissimilar) in history and in popular feeling a distinctly different thing from the responsibility for one’s neighbors in the tithing (frank-pledge). Thus Bracton (f. 124 b), after declaring that the tithing is not responsible for persons not required by law to be in frank-pledge, says that in such case that one shall be responsible in whose household he is, “nisi consuetudo patriæ aliud inducat,” as in Hertford, where one is not responsible “pro manupastu [household] suo,” unless by harboring an offender. Then, after describing the application of the rule to bishops, etc., and their duty to produce their servants to the court or pay a forfeit, he continues, “and so it shall be done for all others who are in anybody’s household, because every man, whether free or serf, either is or ought to be in frank-pledge or in some one’s household” (the italics are the writer’s). He then reproduces the old Germanic ideas (LL. Hlothar and Eadric, c. 15) as to “household,”—“receiving food or clothing from him, or only food with wages, . . . and according to ancient custom he may be said to be of one’s family who has been given hospitality for three nights.” (Cf. also Selden Soc., Pl. Cr., i. No. 55 (ad 1202): “William of Morton and Simon Carpenter are outlawed. . . . They were nowhere in frank-pledge, but servants of the Abbot of Woburn;” Bracton, N. B. iii. 563, No. 1724 (ad 1226): “Henricus le Ireys captus . . . non est in decenna [tithing], nec habet dominum qui eum advocet, . . . suspendatur;” also Ib. ii. 116, annotator, and footnote 1; Gneist, Const. Hist. Eng., i. 185; Bracton, De Legibus, 153 b.) It seems clear, then, that there is nothing which should induce us to believe that the responsibility for servants was not a perfectly clear and natural one apart from frank-pledge. When we meet such expressions as “omnes qui servientes habent, eorum sint franc-plegii” (LL. Wm. I. c. 52; Thorpe, i. 487), and “if the servant of any lord . . . commits a felony. . . . [the lord] is to be amerced, and the reason is because he received him in bourgh [pledge]” (Fitzherbert, “Corone,” 148), we see that we are dealing with expressions used either by way of analogy (the responsibility being in both cases practically the same) or at a later date in ignorance or in disregard of the former distinctions. Compare the fellow-burgess responsibility in towns (Bateson’s Borough Customs, ii, introd. p. xxiv, Selden Soc. vol. xxi, 1906).
[1 ]Brunner, D. Rg., ii. 657-658.
[2 ]This and Part III are reversed from the order of the original article.
[1 ]Y. B. 6 Edw. IV, 7, 18 (1466): Fairfax, for the plf., “I say there is a diversity between an act resulting in a felony and one resulting in a trespass, for . . . when it was against his will, it was not animo felonico.”
[2 ]Lambert v. Bessey, T. Raym. 421 (1681).
[1 ]Vincent v. Stinehour, 7 Vt. 62 (1835), Harvey v. Dunlop, Hill & Den. Suppl. 193 (1843), Brown v. Kendall, 6 Cush. 292 (1850).
[2 ]Stanley v. Powell, infra.
[3 ]See, for example, the language of Grose, J., in Leame v. Bray, infra; the argument for the defendant in Holmes v. Mather, infra; Lord Cranworth, in Fletcher v. Rylands, L. R. 3 H. L. 330: “When one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer;” and 5 Harv. Law Review, 36: “The rule, so well settled in America, that inevitable accident is a good defence to an action of trespass for personal injuries, has not hitherto found entire favor with the English courts. There crept very early into the English law a principle, which the Courts have been slow to repudiate, to the effect that he who acts voluntarily acts at his peril, and is responsible for personal injuries to another resulting from his acts, though the injury be the outcome neither of wilful wrong-doing nor of negligence. The few cases in which a defence has been allowed have been decided either upon principles of expediency or upon questions of pleading. . . . The English judges have obstinately refused to adopt squarely the reasoning of the American courts, that where a man uses due care he is not responsible for results which could not have been foreseen, and, while practically arriving at the same results in a number of cases, have based their decisions upon narrow and unsatisfactory grounds.”
[4 ]Gibbons v. Pepper, 1 Ld. R. 38; Knapp v. Salsbury, Boss v. Litton, Goodman v. Taylor, Hall v. Fearnley, supra.
[5 ]Following is a chronological list of the principal precedents showing the transition: 1330, Fitzherbert, Abridgment, “Corone,” 302, 354; 1400, Beaulieu v. Finglam, Y. B. 2 H. IV, 18, 6; 1466, Thorn-Cutting Case, Y. B. 6 Ed. IV, 7, 18; 1506, Tithe case, Y. B. 21 H. VII, 27, 5; 1605, Millen v. Fandrye, Popham 161; 1616, Weaver v. Ward, Hobart 134; 1630, Bacon, Maxims, No. VII; 1681, Lambert v. Bessey, T. Raymond 421; 1682, Dickenson v. Watson, T. Jones 205; 1700, Mason v. Keeling, 12 Modern 332; 1716, Hawkins, Pleas of the Crown, I, c. 28, § 27; 1724, Underwood v. Hewson, 1 Strange 596; 1760, Buller’s Nisi Prius, 6th ed., 16; 1767, Beckwith v. Shordike, 4 Burrow 2092; 1770, Davis v. Saunders, 2 Chitty 639; 1773, Scott v. Shepherd, 2 Wm. Bl. 892; 1773, Barker v. Braham, 3 Wilson 368; 1793, Comyn’s Digest, 4th ed., “Battery,” (A); 1794, Ogle v. Barnes, 8 T. R. 188; 1797, Bacon’s Abridgment, “Trespass,” (D), (I); 1799(?), Espinasse, Nisi Prius, 3d ed., 313; 1800, McManus v. Crickett, 1 East 109; 1803, Leame v. Bray, 3 East 593; 1806-8, Selwyn, Nisi Prius, 1328; 1808, Chitty, Pleading, 128; 1810, Milman v. Dolwell, 2 Camp. 378; 1810, Knapp, Salsbury, 2 Camp. 500; 1823, Wakeman v. Robinson, 1 Bing 213; 1832, Boss v. Litton, Goodman v. Taylor, 5 C. & P. 407, 410; 1834, Pearcy v. Walter, 6 C. & P. 232; 1837, Cotterill v. Starkey, 8 C. & P. 691; 1842, Hall v. Fearnley, 3 Q. B. 919; 1849, Sharrod v. R. Co., 4 Exch. 585; 1870, Smith v. R. Co., L. R. 6 C. P. 14; 1875, Holmes v. Mather, L. R. 10 Exch. 261; 1891, Stanley v. Powell, 1 Q. B. 86.
[1 ]For a qualification as to trespasses to realty and to personalty, see post.
[2 ]Originally the distinction requiring this to be done by an affirmative plea in justification seems not to have prevailed.
[3 ]Bracton’s Note-Book, III, 229, No. 1216 (ad 1236-37), where in a killing in defence he is pardoned, the test being “quia non potuit aliter evadere manus eius;” ib. III, 107, No. 1084 (ad 1225), “aliter enim mortuus esset;” (1319) Y. B. 12 Edw. II, 381, “since the defendant could not otherwise escape;” (1459) 37 H. VI, 37, pl. 26, the defendant trespassed to avoid the attack of the plaintiff on the highway; held justifiable, “because he could not do otherwise than this;” Choke, C. J., in Thorn-cutting case (1466): “As to what was said about their falling in, ipso invito, that is no plea, but he ought to show that he could not do it in any other way, or that he did all that was in his power to keep then out;” see also Catesby, arg.: Britton (Nichols), I, 15, “from necessity to avoid death;” Bacon, Maxims, V, “impossible to do otherwise;” Blackstone, J., in Scott v. Shepherd: “Not even menaces from others are sufficient to justify a trespass against a third person . . . nothing but inevitable necessity,” citing Weaver v. Ward, Dickenson v. Watson, Gilbert v. Stone; counsel in Gibbons v. Pepper, 4 Mod. 405, “for it was no neglect in him, and the mischief done was inevitable;” and the other cases cited supra, note 5.
[1 ]Buller’s Nisi Prius, “that it was inevitable, and that he committed no negligence;” Comyn, “inevitable and without any neglect;” Espinasse, “involuntary and without fault;” Lord Denman, in Boss v. Litton, “inevitable accident,” i. e. “one which the defendant could not prevent;” Patteson, J., in Cotterill v. Starkey, to the same effect; Nelson, C. J., in Harvey v. Dunlop, Hill & Den. Suppl. 193 (1843), “from inevitable accident, or which in law or reason is the same thing, from an act that ordinary human care and foresight are unable to guard against;” Center v. Finney, 17 Barb. 94 (1852), “wholly unavoidable and no blame imputable;” Selden, J., in Dygert v. Bradley, 8 Wend. 470 (1832), “When we speak of an unavoidable accident, in legal phraseology, . . . all that is meant is that it was not occasioned in any degree, either remotely or directly, by the want of such care or skill as the law holds every man bound to exercise;” and the other cases cited supra, note 5, p. 505.
[2 ]The same differentiation of misfortune from negligence may be seen progressing in the law of tenant’s liability for waste; here it had become plainly announced by the 1500s: Kirchwey, Liability for Waste, Columbia Law Review, VIII, 625, 627 (1908).
[3 ]Probably owing chiefly to the expressions of Grose, J., in Leame v. Bray, supra, note 5, p. 505. These, taken apart, appeared to support, and perhaps were intended by him to support, the stricter view. The other and later cases show that Lord Ellenborough (also a judge in Leame v. Bray) did not hold it.
[4 ]See Vincent v. Stinehour, Harvey v. Dunlop, and other American cases cited supra, notes 1, pp. 505, 507.
[1 ]Including cases where to-day trover would lie.
[2 ]Cited supra, note 5, p. 505.
[3 ]Post, p. 515, note 1.
[4 ]Basely v. Clarkson, 3 Lev. 37 (1681). But it perhaps lingers in Beckwith v. Shordike, supra, note 0.
[5 ]See Holmes, The Common Law, 151.
[6 ]E. g. Wellington v. Wentworth, 8 Metc. 548.
[7 ]The earlier cases of this sort are: (1302) Y. B. 30-31 Ed. I, 513 (Rolls ed.); (1338) Y. B. 12 Ed. III, 533 (Rolls ed.); (1338) Y. B. 21 Ed. III, 17, pl. 22; (1349) Fitzh. Abr., “Corone,” 261; (1370) ib., 94; (1368), 41 Ass. 21 (appeal of mayhem).
[8 ]A pardon was required as late as 1489 (Fitzherbert, Abridgment, “Corone,” 61).
[9 ]Dever’s Case, Godbalt, 288.
[10 ]Y. B. 21-22 Ed. I, 586 (Rolls ed.).
[11 ]Y. B. 12 Ed. II, 381 (Rolls ed.).
[12 ]Y. B. 2 H. IV, 8, pl. 40.
[1 ]So also in the borough courts in the 1400s (Bateson’s Borough Customs, I, 53, and II, Introd. p. 40; Selden Soc. vols. XVIII, 1904 and XXI, 1906), where the learned editor is therefore hardly correct in commenting that at that time “by the law of the land nothing less than the King’s pardon would suffice.”
[2 ]Y. B. 30-31 Ed. I, 518 (Rolls ed.).
[3 ]14 H. VI, 24, pl. 72.
[4 ]Fitzh. Abr., “Corone,” 412 (1315).
[5 ]Ib. 351.
[6 ]Beverley’s Case, 4 Coke R. 123 b (1603).
[7 ]Bacon, Maxims, VII (1630); Weaver v. Ward, Hobart, 134 (1616).
[1 ]See Brunner, Deutsche Rechstgeschichte, I, 76; Wackernagel, Die Lebensalter, 1862, p. 46; and some references to Anglo-Saxon laws in Hale’s Pleas of the Crown, I, 20 ff. Notice the same notion of legal disability in one of the two forms of the writ of pardon for infants in the Registrum Brevium (309 b), where the infant is discharged, but is to come up again and answer, if any one raises the question after he has arrived “ad legitimam ætatem.”
[2 ]Y. B. 30-31 Ed. I, 529 (Rolls ed.); a boy had set up a mark inside the house, and in shooting, his arrow accidentally went without and killed a woman; Justiciarius: “Since he is not of the age of twelve years he is not a felon, but good and loyal;” and as he had absconded, it was publicly proclaimed that he might return if he would.
[3 ]1302, Y. B. 30 Ed. I, 511 (Rolls ed.); one who killed in defence of his brother was committed to prison; and it was said that he was under twelve years of age; Spigurnel, J.: “If he had done the deed before his age of seven years he should not suffer judgment; but if he had done any other deed not causing the loss of life or limb, though against the peace, he should not answer, because before that age he is not of the peace.”
[4 ]1338, Y. B. 12 Ed. III, 627 (Rolls ed.): “Itan, a girl of thirteen years, was burnt for that while she was the servant of a certain woman she killed her mistress; and this was [so] found; therefore adjudged to be treason. And it was said that by the old law no one under age was hung, or suffered judgment of life or limb. But Spigurnel found a case that an infant of ten years killed his companion and concealed him, and he was hung, since by the concealment he showed that he knew how to distinguish between evil from good. And thus malitia supplet ætatem.” So also in the borough courts, ad 1200-1400. (Bateson’s Borough Customs, I, p. 63, II, Introd. p. 42; Selden Soc. Pub. vols. XVIII, 1904, and XXI, 1906), where the parent is often held answerable; yet there is no consistent principle visible.
[5 ]Reg. v. Smith, 1 Cox Cr. C. 260.
[1 ]The child was four years of age; the judge says: “Can you find it in your conscience to declare against this child of so tender an age? I think that he did not know any malice, for he is not of great strength, and you can see that before your own eyes.” Counsel replies that the fact remains that one of his client’s eyes is out. Counsel for defence claims that, as in felony, the Court can dismiss the case if they think his youth shows that he did not know he was doing wrong. But Moyle refuses, because in felony there is only a plea of not guilty, and no justification, and so “the justices have it in their discretion to dismiss him if it appears to them that he is of such an age that he has not discretion; but otherwise in trespass, for in a writ of trespass the party may justify the trespass, and not plead not guilty, and so the justices have no such power.” Then a guardian is appointed, and the defendant’s counsel is granted an adjournment for a conference.
[2 ]Holbrooke v. Dagley, Croke Jac. 374.
[3 ]Hodsman v. Grissell, Noy, 129.
[4 ]Bacon, Maxims, vii.
[5 ]Bateson, Borough Customs, I, 82 (Selden Soc. Pub. vol. XVIII, 1904); here the later custumal exonerates. The same popular attitude seems to have lingered in other countries; e. g. in Japan the responsibility for accidental fires continued, in the rural communities, into the present century; and during a residence in Tokyo the writer’s landlord tried to have inserted in the lease a clause making the tenant responsible for all fires originating within the house.
[6 ]Rastell, Entries, 8.
[1 ]2 H. IV, 18, pl. 6.
[2 ]The case in 42 Ass. pl. 9 (1369), which the plaintiff lost, in an action where the jury found that the fire fuit suddeinment illumine, the defendant knowing nothing, is not conclusive to the contrary; for (1) it does not appear that the defendant set the fire; (2) Rolle (Abridgment, 1, pl. 2) thinks the vi et armis spoiled the writ; (3) 2 H. IV., supra, is unmistakable. For other cases, see (1450) 28 H. VI. 7, pl. 7; (1582) Anon., Croke El. 10; and also Rolle’s Abr., Action on the Case, (B) Fire.
[3 ]So, also, in Tuberville v. Stamp, “The fire in his field is his fire as well as that in his house.”
[4 ]1 Salk. 13; Comb. 459; Skinner, 681; Garth. 425.
[5 ]The doubts there expressed because the fire was started in the field, not in the house, arose hardly from the fact that the tradition dealt only with fire in a house (for the writ does not betray this, nor does Germanic tradition), but from the fact that it was started by a servant, and the old rules about absolute responsibility for deeds done in the house and by the household became the source of confusion.
[6 ]Allen v. Stephenson, 1 Lutwych 36.
[7 ]10 Anne, c. 14, s. 1.
[8 ]Extended by 14 G. III. c. 78, s. 86, and 7 & 8 Vict. c. 87, s. 1, to “estates.”
[9 ]Blackstone (I, 131) and Lord Lyndhurst (1 Phill. Ch. Cas. 320) misunderstood “accidentally” to include “negligently” in these statutes. This was corrected by Philliter v. Phippard, 11 Q. B. 347 (1847); Bacon, Abr., Case, already had had the right interpretation.
[10 ]Ante, p. 490.
[11 ]Registrum Brevium, 110.
[1 ]The writ reads “mordendum” and “consuetos,” and the terminations should apparently be exchanged.
[2 ]Compare Selden Soc. vol. IV, Court Baron, 131 (1320): “[The jurors present] that the said John the Swineherd has a dog which ate a rabbit of the lord . . . And that a dog of the Vicar often chases hares in the field (fine 3d.) . . . And that the dog of John Manimester chased a sow of John Albin, so that he lost her pig, to his damage, taxed at 18d., which the Court awards, etc., and John Manimester is in mercy (6d.),” also ib. p. 52. Here it seems that there was not always an allegation of the scienter, or even of the habit, in these lower courts.
[3 ]Britton (Nichols’ ed.) I, 15: “Let it be inquired . . . [if the killing was] by a beast, whether by a dog or other beast, and whether the beast was set on to do it and encouraged to do such mischief, or not, and by whom, and do of all the circumstances.” Fitzherbert, Natura Brevium, Trespass, 89, L: “And if a man do incite or procure his dog to bite any man, he shall have an action of trespass for the same;” following a writ for inciting dogs to bite sheep. In 3 Edw. III, 3, 7 (1330), a bill lays the “incitement” of the dogs to bite the sheep. See also 13 H. VII, 15, pl. 10 (1498).
[4 ]Buxendin v. Sharp, 2 Salk. 662 (1697); s. c. Bayntine v. Sharp, 1 Lutw. 36; Smith v. Pelah, 2 Stra. 1264 (1747). In Millen v. Fandrye, the Court seem to have had in mind mainly the land-trespass of the dog (Popham, 161). See Laws and Liberties of Mass. (1648), “Sheep” (Whitmore, 191): “If any dog shall kill any sheep, the owner shall either hang such dog or pay double damages for the sheep; and if any dog hath been seen to course or bite sheep before, not being set on, and his owner hath had notice thereof, then he shall both hang his dog and pay for such sheep;” re-enacted in General Laws of 1672, s. v. Probably in England, as here, the claim might always be based either on the habit plus the scienter, or merely on an incitement.
[5 ]“Quod retinuit quondam canem sciens canem predictum ad mordendum oves consuetum.”
[6 ]1700, Mason v. Keeling, 12 Mod. 332, Holt, C. J.: “If they are such as are naturally mischievous in their kind, he shall answer for hurt done by them without any notice; but if they are of a tame nature, there must be notice of the ill quality.” The restriction of this rule to “things in which he has no valuable property,” and the application of a stricter rule to things in which he has a “valuable property,” seems to have been a passing invention of Holt, C. J., in distinguishing the rule as to cattle’s trespasses on realty, and has no support in preceding literature. But it may have been inspired, as Mr. Justice Holmes suggests, by the old idea, already noticed, that animals let loose could not bring home responsibility to their former owner (The Common Law, 22).
[1 ]Filburn v. People’s Palace Co., L. R. 25 Q. B. D. 258 (1890), where an elephant escaped.
[2 ]See Laws of Ine, c. 49.
[3 ]Fitzherbert, Natura Brevium, “Trespass,” 87 A; Selden Soc. vol. II, Manorial Courts, I, 9: “Hugh Tree is in mercy for his beasts caught in the lord’s garden. Pledges, Walter of the Hill and William Slipper. Fine, 6d.” Accord., pp. 7, 10, 12, 13, 15, 18, 37, 90, 183; also 114: “one sow and five small pigs of John William’s son entered the court-yard of Bartholomew Sweyn and did damage among the leeks and cabbages. . . . Therefore let John make satisfaction to him for the said 2d. and be in mercy for his trespass.” These cases date from 1247 to 1294. Add Y. B. 27 Ass. 14, pl. 56 (1354).
[4 ]Y. B. 20 Ed. IV, pl. 10 (1481); “Doctor and Student,” I. 9 (Muchall’s ed., 31) (1518): “Every man is bound to make recompense for such hurt as his beasts shall do in the corn or grass of his neighbour, though he know not that they were there;” under the head of things which are doubtful upon the law of reason. Noy, Maxims, c. 44 (1642), borrows the same language.
[5 ]Blackburn, J., in Fletcher v. Rylands, post.
[1 ]Y. B. 22 Ed. IV, 8, pl. 24 (1483). But compare also 2 Rolle’s Abr. 566 (1618): “If a man has a road along my land for his beasts to pass, and the beasts eat the grass in morsels in passing, this is justifiable;” adding, “this is to be understood as done against his will.”
[2 ]Y. B. 10 Ed. IV, 7, pl. 19 (1471); Y. B. 15 H. VII, 17, pl. 13 (1502), semble; Fitzherbert, Natura Brevium, 128, notes.
[3 ]Rastel’s Entries, 621, and cases just cited; Dovaston v. Payne, 2 H. Bl. 527 (1795). It was always an excuse that the plaintiff was bound, by agreement or by custom, to fence against the defendant; and the modification in question was apparently treated as merely one phase of this, the plaintiff being bound by custom to fence against the highway.
[4 ]Goodwyn v. Cheevely, 28 L. J. Exch. 298.
[5 ]Tillett v. Ward, L. R. 10 Q. B. D. 17 (1882).
[6 ]Millen v. Fandrye, Popham 161: “A man is driving cattle through a town, and one of them goes into another man’s house, and he follows them, trespass does not lie for this.”
[7 ]Danby and Moyle, JJ., in 10 Ed. IV, 7, pl. 19 (1471).
[8 ]Trained hunting-dogs and the like were the exception.
[1 ]Millen v. Fandrye, Popham 161 (1605); Beckwith v. Shordike, 4 Burrow 2092 (1767); Brown v. Giles, 1 C. & P. 118 (1823).
[2 ]Doyle v. Vance, 6 Vict. L. R. (Law) 87 (1880).
[3 ]Read v. Edwards, 18 C. B. n. s. 260 (1864).
[1 ]1699, Parkhurst v. Foster, 1 Ld. Raym. 479; trespass against a constable for billeting a dragoon upon him, and forcing him to find meat, drink, etc.; the jury found that the dragoon was the one who forced the plaintiff, etc.; Holt, C. J.: “At common law, if a man does an unlawful act, he shall be answerable for the consequences of it, especially where, as in this case, the act is done with intent that consequential damage shall be done.” 1773, Nares, J., and Gould, J., in Scott v. Shepherd, 2 Wm. Bl. 893: “Wherever a man does an unlawful act, he is answerable for all the consequences.” See also Courtney v. Collet, 1 Ld. Raym. 272 (1698); Reynolds v. Clarke, 1 Stra. 634 (1722).
[2 ]Brian, J., in 20 Ed. IV, 10, pl. 10 (1481): “A man should so occupy his common that he does no wrong to another man.” Holt, C. J., in Tenant v. Goldwin, 2 Ld. Raym. 1089 (1705): “Every man must so use his own as not to do damage to another;” and also in Tuberville v. Stamp, 1 Salk. 13 (1698). Gibbs, C. J., in Sutton v. Clarke, 6 Taunt. 29 (1815), approves this argument of counsel: “An individual is bound so to restrain the exercise of his rights over his own land that he may not thereby injure his neighbor”
[3 ]Compare the hesitation in granting assumpsit for a non-feasance.
[4 ]27 Ass. 141, pl. 56. See also the action for keeping a ferocious dog, where “pro defectu curæ” is a part of the declaration, as in Mason v. Keeling, 12 Mod. 332.
[5 ]Commentaries, III, 211. Compare the sense of “negligence” in the precedents in Comyn’s Digest, Action on the Case for Negligence.
[6 ]In Mitchil v. Alestree (1677), e. g., the declaration alleged “improvide et absque debita consideratione ineptitudinis loci;” but this allegation plays little part in the decision (2 Lev., 172, alone has it), and the whole case is approached in a very different way from our negligence cases of to-day.
[1 ]Fletcher v. Rylands, L. R. 1 Exch. at 282 (1866).
[2 ]Littleton, J., in 10 Ed. IV, 7, pl. 19: “It is at the peril of him who drives;” Doctor and Student, II, 16 (p. 149): “When a man buyeth land or taketh it of the gift of any other, he taketh it at his peril;” ib. II, 27 (pp. 191, 192); Mitchil v. Alestree, in 3 Keb. 650: “Per Curiam: It’s at peril of the owner to take strength enough to order them:” Holt, C. J., in Anon, 12 Mod. 342; keeping gunpowder; action for nuisance; “It would be at peril of builder;” Nares, J., in Parsons v. Loyd, 3 Wils. 346: “Every plaintiff sues out process at his peril.” Martin, B., had already phrased the same idea in a little different form: (1856) Blyth v. Waterworks Co., 11 Exch. 781, during argument: “I held, in a case tried at Liverpool, in 1853, that if locomotives are sent through the country emitting sparks, the persons doing so incur all the responsibilities of insurers; that they were liable for all the consequences,” citing Lambert v. Bessey; and in Fletcher v. Rylands, 3 H. & C. 793 (lower Court), he speaks of “quasi-insurers.”
[1 ]Holt, C. J., in Mason v. Keeling, 12 Mod. 332 (1700), and Tenant v. Goldwin, 2 Ld. Raym. 1089 (1705); Cockburn, C. J., in Vaughan v. Taff Vale R. Co., 5 H. & N. 679 (1850); and counsel in a few prior cases.
[2 ]Supplementing Lord Blackburn’s judicial utterance, the theoretical exposition of Mr. Justice Holmes, in cc. III and IV of “The Common Law,” has served more than anything else to commend and establish the distinction. It has been accepted also by Sir Frederick Pollock, in his “Torts,” p. 17 (apparently), and by Mr. (now Justice) Wm. Schofield, formerly instructor in Torts in the Harvard Law School, in 1 Harv. Law Rev. 52
[3 ]It is sometimes said, for instance, that Fletcher v. Rylands, is “not law” in America or in this or that State. But such statements fail to distinguish between (1) the acceptance of Lord Blackburn’s principle above, and (2) its application to the specific facts in Fletcher v. Rylands. The principle is sanctioned, in one way or another, consciously or unconsciously, in every court of the country. But (a) it is not invariably held to control in cases having facts like Fletcher v. Rylands; and (b) the tendency may perhaps be said to be in many States to restrict to as few as possible the classes of situations to be governed by the principle. An example of the latter attitude is found in the masterly opinion of Mr. Justice Doe, in Brown v. Collins, 53 N. H. 442.
[1 ]See the writer’s articles on the theory of Torts, in VIII Harvard Law Review 200, 377.
[2 ]We find as late as Finch’s Law (1654; ed. 1759, p. 198) the statement, “trespass is a criminal offence punishable by a fine unto the king;” and it is perhaps unsafe to draw any fixed distinction of “civil” and “criminal” in the present connection till the seventeenth century.
[1 ]For the husband’s responsibility for his wife in the borough courts, see Bateson’s Borough Customs, I, pp. 223, 224, II, Introd. pp. 111-114 (Selden Soc. Pub. vols. XVIII, 1904, and XXI, 1906).
[1 ]For this period, compare also the practice in borough courts (Bateson’s Borough Customs, II, Introd. pp. 40-42).
[1 ]The following intervening cases are corroborative: 1306, Y. B. 34 Ed. I, 252 (Rolls ed.); 1410, 11 H. IV, 91, 47; 1431, Y. B. 9 H. VI, 53, 37; 1443, Y. B. 21 H. VI, 39, 6; 1469, 8 Ed. IV, 17, 24; 1471, 10 Ed. IV, 18, 22; 1472, 11 Ed. IV, 6, 10; 1497, Keilwey, 3 b; 1618, Southern v. How, 2 Rolle’s Rep. 5, 26, Poph. 143; 1625, Shelley v. Burr, 1 Rolle’s Abr. 2, pl. 7; 1630, Bacon, Maxims, XVI; 1641, Noy, Maxims, c. 44; 1668, Cremer v. Humberton, 2 Keb. 352.
[2 ]Ante, p. 511.
[1 ]Among the cases in point may be noted (1441) 19 H. VI, 50 pl. 7; (1463) 2 Ed. IV, 5, pl. 10; (1481) 21 Edw. IV, 5 pl. 10; (1678) Mires v. Solebay, 2 Mod. 244. This notion began to be repudiated in (1694) Sands v. Childs, 2 Lev. 351, and (1701) per Lord Holt, in Lane v. Cotton, 12 Mod. 472, 488.
[2 ]8 Rep. 66 (1608).
[3 ]Notably in Southern v. How, Cremer v. Humberton, Kingston v. Booth, also in Noy and Doctor and Student, all pointing back to the idea in the 9 H. VI. case.
[1 ]Cited supra, note 1, p. 524.
[2 ]Mr. Justice Holmes has shown (Harvard Law Review, IV, 361, V, 6, “Agency”) how the early law knows only “servants,” and how the “agent” is a later branching off from this class. The same thing has been additionally shown by Mr. C. C. Allen, in the American Law Review (XXVIII, 18). According to Murray’s Dictionary, “agent” first appears in the commercial sense in Marlowe and Shakespeare. It may fairly be claimed that Shakespeare has in mind the rule of his day (applying it, to be sure, to a case of moral, not legal, responsibility) when he introduces the following colloquy:—
[1 ]Lord Holt’s judgments markedly show this point of view; but the following passage of Lord Hardwicke’s (Boucher v. Lawson, (1734) infra) is perhaps the most pointed brief one: “This case seemed at the trial of very great consequence, as it concerns on the one side . . . the security that persons have in trusting their gold, . . . and on the other side, as it concerned the security of owners of ships that they might not be charged by the default of their masters further than reason requires.”
[2 ]Not that they fully appreciated the historical perspective and the significance of the situation; but one may gather from all said and done the meaning of events. We are dealing, not merely with the progress of a rule, but also with the development of an idea.
[1 ]Here may be noted (1699) Jones v. Hart, 2 Salk. 441; (1704) Ward v. Evans, 2 Salk. 442; Wayland’s Case, 3 Salk. 234. In Lane v. Cotton, (1701) 1 Salk. 17, 12 Mod. 477, where the postmaster was sued for the loss of a package by a clerk, the case was argued on the effect of a statute and on the peculiar position of a public officer.
[1 ]Under similar circumstances the master was held responsible in Mead v. Hammond, 1 Stra. 505 (1722) by Pratt, C. J.; and in Grammar v. Nixon, 1 Stra. 653 (1726) by Eyre, C. J., the master was made responsible for a false warranty; no reasons being given in either case.
[2 ]In 1733 (Commons Journal, 277; Abbott on Shipping, 12 ed., Pt. IV., c. VII. vol. II, p. 339), in consequence of the claim made for the plaintiff in Boucher v. Lawson, a petition of merchants was presented to the House, setting forth the discouragement to commerce if owners were held liable for goods made away with by masters and mariners “without the knowledge or privity of the owner or owners,” and a statute was passed (7 Geo. II. c. 15) exonerating them from being answerable for merchandise “made away with by the master or mariners without the privity of the owners” beyond the value of vessel and freight. This illustrates how the mercantile community noticed the broader scope of the revised rule as now substituted by the Courts for the traditional test of Particular Command (i. e. direct privity).
[1 ]Compare here, also, (1773) Barker v. Braham, 3 Wils. 368; an action allowed against client and attorney for an arrest made by an error of the latter; De Grey, C. J.: “They say, whoever procures, commands, assists, assents, etc., is a trespasser; here the client commands the attorney, the attorney actually commands the sheriff’s officer; the real commander is the attorney, the nominal commander is the plaintiff in the action. . . .”
[1 ]Cf. Brandon v. Peacock, Lee’s Hardwicke, 86 (1730): “A person put tobacco on a ship, the master run away with the ship and tobacco, the goods being insured, the person that owned the tobacco applied to the insurance office and received the value of it. The insurance office took an authority from him to sue the owner, and the C. J. held that the action lay.”
[2 ]One might fancy that the phrase of the St. 27 Ed. III (ante, p. 0) “offended in the office in which his master hath set him,” supplies an antecedent for these phrases. But it would seem that “office” was purely a civil or canon (not Roman) law phrase. In Doctor and Student (II. c. 42) the civilian, asking for the English law, gives as a part of his own test, “when the household offendeth in any office or ministry that the master is the chief officer of;” and the writer has not found the phrase elsewhere than in that book and in the above statute. In the latter it may easily have been inserted by some clerical secretary learned in the canon law.
[3 ]E. g. in Beaulieu v. Finglam (1401), ante, note 0, the Court harshly refuses to argue the question of expediency.
[1 ]Mr. Justice Holmes (Harvard L. Rev. IV, 345-364, V, 1-23, reprinted in this Collection as Essay No. 63) has expressed the belief that the identification fiction plays a leading part in earlier history; but the learned author has apparently been able to find before 1700 only five or six instances, not all unambiguous. The plain one from West’s Symboleography clearly owes its origin to the civil law (as does a great deal throughout the book). West’s “by some bond he is fained to be all one person,” is the borrowing of a notion well known across the water: “Eadem est persona domini et procuratoris. Eadem, inquam, non rei veritate, sed fictione,” etc. (Digesta, 44, 2, 4, note to Elzevir ed.). Very different are the indigenous English expressions,—scarcely fictions, but merely statements of legal results; e. g. “the driving of the servant is the driving of the master” (Smith v. Shepherd). Coke says of disseisin (Co. Litt., sects. 430-435): “Where the servant doth all that which he is commanded, . . . there it is as sufficient as if his master did it himselfe, for the rule is, qui facit, etc.” This “as if” (and Littleton says the same) shows that there is here no fiction in a proper sense,—merely a concise statement of the legal result. The out-and-out identification expressions do not come into much vogue until after Blackstone’s time.
[2 ]The argument for the defendant in Brucker v. Fromont, 6 T. R. 659 (1796), shows that this misconception of the earlier form of the rule was already in the air. Note that this, the first judicial misunderstanding of it (which became the basis of a special doctrine noticed later on), was in the Common Pleas, and that the King’s Bench, Lord Kenyon’s Court, did not exhibit it until well on in the next century.
[1 ]Intervening cases are: 1799, Bush v. Steinman, 1 B. & P. 404; 1800, Ellis v. Turner, 8 T. R. 531; 1800, McManus v. Crickett, 1 East 107; 1826, Gregory v. Piper, 9 B. & C. 591.
[2 ]Sleath v. Wilson, 9 C. & P. 607, 1839; Story on Agency, 1839; Smith on Master and Servant, 1852.
[3 ]Cornfoot v. Fowke, 6 M. & W. 358, 1840; Att’y-Gen. v. Siddon, 1 Tyrwh. 41, 1830; Coleman v. Riches, 16 C. B. 104, 1855.
[1 ]Keating, J., in Bolingbroke v. Board, L. R. 9 C. P. at 577, 1874.
[2 ]1828, Goodman v. Kennell, 1 Moore & P. 241; 1857, Patten v. Rea, 2 C. B. N. S. 606; 1867, Barwick v. Bank, L. R. 2 Exch. 259.
[3 ]1859, Gordon v. Rolt, 4 Exch. 365; 1849, Sharrod v. R. Co., ibid. 581.
[4 ]Agency, cited ante.
[5 ]Nisi Prius, p. 294.
[1 ]Or this: “If, instead of driving the carriage with his own hands he employs a servant to drive it, the servant is but an instrument set in motion by the master” (Alderson, B., in Hutchinson v. R. Co., 5 Exch. 350).