The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo-american Legal History: Volume Iii History of Particular Topics, Continued
• Part V.: Commercial Law
• 47.: Thomas Edwar Scrutton, General Survey of the History of the Law Merchant 1
• 48.: Spencer Brodhurst, the Merchants of the Staple 1
• 49.: Francis Marion Burdick, Contributions of the Law Merchant to the Common Law 1
• 50.: Edward Jenks, the Early History of Negotiable Instruments 1
• 51.: William Cranch, Promissory Notes Before and After Lord Holt 1
• 52.: William Reynolds Vance, the Early History of Insurance Law 1
• 53.: Edward Wyndham Hulme, the Early History of the English Patent System 1
• 54.: Joseph Henry Beale, Jr., the History of the Carrier’s Liability 1
• 55.: Cecil Thomas Carr, Early Forms of Corporateness 1
• 56.: William Mitchell, Early Forms of Partnership 1
• 57.: Samuel Williston, the History of the Law of Business Corporations Before 1800 1
• 58.: Simeon Eben Baldwin, History of the Law of Private Corporations In the Colonies and States 1
• Part VI.: Contracts
• 59.: James Barr Ames, the History of Assumpsit 1
• 60.: James Barr Ames, the History of Parol Contracts Prior to Assumpsit 1
• 61.: John William Salmond, the History of Contract 1
• 62.: Crawford Dawes Hening, History of the Beneficiary’s Action In Assumpsit 1
• 63.: Oliver Weldell Holmes, Jr., the History of Agency 1
• Part VII: Torts
• 64.: James Barr Ames, the History of Trover 1
• 65.: Van Vechten Veeder, the History of the Law of Defamation 1
• 66.: John Henry Wigmore, Responsibility For Tortious Acts: Its History 1
• Part VIII: Property (in General)
• 67.: James Barr Ames, the Disseisin of Chattels 1
• 68.: Frederick William Maitland, the Mystery of Seisin 1
• 69.: Arthur George Sedwick and Frederick Scott Wait, the History of the Action of Ejectment In England and the United States 1
• 70.: Harold Dexter Hazeltine, the Gage of Land In MediÆval England 1
• 71.: Arthur Underhill, Changes In the English Law of Real Property During the Nineteenth Century 1
• Part IX.: Wills, Descent, Marriage
• 72.: Charles Gross, the MediÆval Law of Intestacy 1
• 73.: Oliver Weldell Holmes, Jr., Executors In Earlier English Law 1
• 74.: Robert Caillemer, the Executor In England and On the Continent 1
• 75.: Melville Madison Bigelow, the Rise of the English Will 1
• 76.: James Bryce, Marriage and Divorce Under Roman and English Law 1
• List of Authors Contributing

66.

RESPONSIBILITY FOR TORTIOUS ACTS: ITS HISTORY1

By John Henry Wigmore2

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:

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

I

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:—

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:—

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.

a.

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:

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:

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

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:

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:

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—

b.

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:

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:

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:

The owner would thus not be liable if the animal had escaped; for he is no longer connected with it, he is absolved:

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:

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.

c.

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:

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:

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:

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:

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:

d.

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:”

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:

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:

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:

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:

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.

II2

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:

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:—

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.

III

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:

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:

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:

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.

PART VIII

PROPERTY (IN GENERAL)

• 67. Disseisin of Chattels.James Barr Ames
• 68. The Mystery of Seisin.Frederick William Maitland
• 69. History of the Action of Ejectment in England and the United States.Arthur George Sedgwick and Frederick Scott Wait
• 70. The Gage of Land in Mediæval England.Harold Dexter Hazeltine
• 71. Changes in the English Law of Real Property during the Nineteenth Century.Arthur Underhill

[Other References on the Subject of this Part are as follows:

Folcland, by Paul Vinogradoff (English Historical Review, 1893, VIII, 1).

The Transfer of Land in Old English Law, by Paul Vinogradoff (Harvard Law Review, 1907, XX, 532-548).

Changes in the American Law of Real Property. Anon. (American Jurist, 1829, pp. 28-97).

Les fondations [charitable gifts] en Angleterre; étude de droit comparée, by Jean Escarra (Paris, 1907).

History of Land Tenure in Scotland and England, by R. Campbell (Law Quarterly Review, 1885-86, I, 175-183, 400-411, II, 166-176).

History of the Irish Land System, by W. O. Morris (Law Quarterly Review, 1887, III, 133-157).

Alienation of Estates Tail, by H. W. Elphinstone (Law Quarterly Review, 1890, VI, 280-288).

Short Studies in the Early Common Law; II, Rents-Charge, by W. G. Hammond (Green Bag, 1892, IV, 283-292).

Early English Land Tenures, by M. Kovalevsky (Law Quarterly Review, 1880, IV, 266-285).

The Seisin of Chattels, by F. W. Maitland (Law Quarterly Review, 1885, I, 324-341).

The Beatitude of Seisin, by F. W. Maitland (Law Quarterly Review, 1888, IV, 24-39, 286-299).

Possession for a Year and a Day, by F. W. Maitland (Law Quarterly Review, 1889, V, 253-264).

Feoffment and Livery of Incorporeal Hereditaments, by L. O. Pike (Law Quarterly Review, 1889, V, 29-43).

Origin of Rights of Common, by T. E. Scrutton (Law Quarterly Review, 1887, III, 373-398).

History of Legislation concerning Property in England, by J. E. R. de Villiers (London, 1901).

Changes of Real Property Law in the United States, by G. E. Beers (in Two Centuries of Growth of American Law, Yale Bi-Centenary Studies, New York, 1901).

Origin of the System of Recording Deeds in America, by J. H. Beale, Jr. (Green Bag, 1907, XIX, 335).]

[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.

Even Blackstone had registered his observance of this primitive trait (Commentaries, IV, 187), with Greek, Roman, and Jewish citations.

[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).

As to the sources there quoted, this part is in effect merely a reproduction of the salient ones, the citations of the learned author are left unchanged, except that dates and authors’ initials have been added for identifying the modern source-books cited. As to the conclusions reached, they have here been presented in a somewhat different form and arrangement, with a view to tracing subsequent English development; but it would seem that Professor Brunner would prefer this, for in his 1892 volume of the Deutsche Rechtsgeschichte he has chosen an arrangement more nearly resembling the present one. His article will here be cited as “Br., Pr. Ak.;” his treatise, as “Br., D. Rg.” A few gleanings from recent volumes of the Selden Society, from Bracton, etc., have been added by the present writer, so as to bring the topics in this part of the article down to about the 1200s in England.

[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.

Bracton, in De Legibus, as above, shows the rule. But other passages there occur which are quite inconsistent with this, and would even do well enough as a rough statement of to-day’s law. Of homicide by chance, he says, “as where a person has thrown a stone at a bird or an animal, and another person, passing unexpectedly by, is struck and dies, . . . here it is to be distinguished whether the person was engaged in a lawful or in an unlawful affair . . . If he was engaged in a lawful affair, . . . if he used such care as he could, . . . it is not laid to his account” (120b). Again, he uses the old Roman example of throwing a ball at play and hitting a razor in the hands of a barber while shaving (136b). The explanation is simple: he is here copying and adapting from the Roman and civil law,—in the latter case from Dig. 48, 8, 14 (as Brunner points out); in the former from Gregory’s Decretal (V, tit. xii.; 1234 ad) “de homicidio voluntario vel casuali” (as Twiss points out, Preface, II. lix.).

[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.

[2 ]Household.

[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).

[2 ]Household.

[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.

No doubt the doctrine of “acting at peril” to-day still covers the situations involved in some of these cases; for this see post in this article.

[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).

It is necessary to express surprise at the insufficient historical treatment of this topic in Mr. T. Beven’s article on “The Responsibility at Common Law for the keeping of Animals” (Harvard Law Review, 1909, XXII, 465). The learned writer’s inattention to the distinction between trespasses by biting or wounding and trespasses q. c. f. explains in part his misunderstanding of the precedents.

[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).

On the general subject, a comparison of the Colonial law is interesting: 1646-1660, Laws and Liberties of Mass., “Cattle,” (Whitmore’s ed. 131); the common-law rule is changed, and the owner of land must fence it against “great cattle;” but the scienter analogy is adopted for the new rule; “nor shall any person knowing, or after due notice given, of any beast of his to be unruly in respect of fences, suffer such beast to go . . . without such shackles or fetters as may restrain and prevent trespass;” but “for all harms done by goates there shall be double damages allowed.”

[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:—

King Henry the Fifth, IV, 1: (One of the soldiers has been expressing forebodings as to the fatal outcome of the morrow’s battle) Williams: “. . . Now if these men do not die well, it will be a black matter for the king that led them to it. . . .” King Henry (in disguise): “So, if a son that is by his father sent about merchandise do sinfully miscarry upon the sea, the imputation of his wickedness, by your rule, should be imposed upon the father that sent him; or if a servant, under his master’s command transporting a sum of money, be assailed by robbers, and die in many irreconciled iniquities [that is, meet sudden death without a chance to get absolution for past sins], you may call the business of the master the author of the servant’s damnation. But this is not so; the king is not bound to answer the particular endings of his soldiers, the father of his son, nor the master of his servant; for they purpose not their death when they purpose their services.” This is fairly an application of the doctrine of Particular Command.

It seems that the laws of Massachusetts Colony indicate a state of society in which the masters were still looked to for servants’ torts, even where not commanded,—Brunner’s thesis being illustrated, that the liability follows and depends on the power of control and correction: 1646, Laws and Liberties of Mass., 1660; Tit. “Burglary & Theft” (Whitmore’s ed. 127): “[Penalty imposed for robbing orchards and gardens:] And if they be children or servants that shall trespass herein, if their parents or masters will not pay the penalty before exprest, they [the servants] shall bee openly whipped,” re-enacted in General Laws of 1672, s. v. 1678, Law of Mass. Co.’s Council, Mar. 28, 1678 (Whitmore’s Colonial Laws, 349): A penalty for shooting off a gun near any house or highway, and the offender to make full satisfaction to injured persons; “And where either they be servants or youths under their parents or masters, and shall not be able to make such satisfaction, such parents or masters shall be liable to make full and due satisfaction in all respects.”

[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.

A test once ventured in 1698 (Tuberville v. Stamp, as in 1 Ld. Ravm. 264) was that the act should be “for the master’s benefit;” and in the 1800s this phrase played some part, though generally in subordination to and supplementary to the “scope of employment” test (Bush v. Steinman, infra; and passim).

[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.

Most of the American cases came at a time when the text-books had made the “scope of employment” or “authority” phrase the familiar one; but a few are to be found using the old language; e. g. McCalla v. Wood, Pennington (N. J.) 86 (1806): “Upon principles of law, one person can never be made liable for the trespass of another. It is true, that if one command or authorize his servant to commit a trespass, he is answerable himself; but then it is the trespass of the master, according to the well-known maxim of the law, qui facit per alium facit per se.”

[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).