Front Page Titles (by Subject) CHAPTER 4: LIABILITY, CIVIL AND CRIMINAL - A Concise History of the Common Law
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CHAPTER 4: LIABILITY, CIVIL AND CRIMINAL - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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LIABILITY, CIVIL AND CRIMINAL
For reasons we have already mentioned, it is impracticable to speak of our early law in terms of a distinction between crime and tort. This observation becomes necessary once more in tracing the history of liability, for such few principles as there were had been derived from experience drawn indifferently from all parts of the law of wrongs. Nevertheless, some interplay between notions drawn from clearly criminal cases and those drawn from obviously civil ones may be expected, and in fact actually took place.
LIABILITY IN ANGLO-SAXON LAW
English writing on the subject generally goes back to a series of striking articles by Dean Wigmore which appeared in the Harvard Law Review in 1894. The author there set forth his theory that in early law (including Anglo-Saxon law) liability was absolute:1
“The doer of a deed was responsible whether he acted innocently or inadvertently, because he was the doer; the owner of an instrument which caused harm was responsible, because he was the owner, though the instrument had been wielded by a thief; the owner of an animal, the master of a slave, was responsible because he was associated with it as owner, as master. . . ,”
and a great many similar propositions are advanced which do not all concern English law. In short, “a man acts at his peril”. This theory, even then, did not represent the unanimous opinion of common lawyers, for Mr Justice Holmes had already criticised it in 1881, doubting whether the common law had ever held such a rule in its best days.2 Professor Winfield has more recently and more thoroughly examined the question, with the result that he declares it to be merely a myth.1
There was indeed a maxim qui inscienter peccat, scienter emendet, but there is no need to assume that maxims represented the state of the law with much more accuracy in 1100 than they do now. We may surmise, however, that there was a fatalistic attitude to life in earlier times which made men accept misfortune (in the shape of heavy liability for harm they did not mean to do) with more resignation than now.2 We have also to bear in mind that “law in books” was itself a rarity in the four centuries preceding Glanvill, and so was much less in contact with “law in action” than it is to-day. The question of liability is frequently discussed by the author of the Leges Henrici Primi, but as Professor Winfield shows, he expressly warns us that his crude maxim is not the whole law, and frequently mentions the reduction of the compensation or penalty according to circumstances. Even the Anglo-Saxon laws themselves plainly discriminate between care and carelessness, and recommend clemency.
A passage appended to one of the laws of Aethelred (c. 1000) seems to represent the thought of his age in the determination of liability, and suggests that the Anglo-Saxon system of preordained payments was more flexible than would appear on the surface. It reads thus:
“And always the greater a man’s position in this present life or the higher the privileges of his rank, the more fully shall he make amends for his sins, and the more dearly shall he pay for all misdeeds; for the strong and the weak are not alike nor can they bear a like burden, any more than the sick can be treated like the sound. And therefore, in forming a judgement, careful discrimination must be made between age and youth, wealth and poverty, health and sickness, and the various ranks of life, both in the amends imposed by ecclesiastical authority, and in the penalties inflicted by the secular law.
“And if it happens that a man commits a misdeed involuntarily or unintentionally, the case is different from that of one who offends of his own free will voluntarily and intentionally; and likewise he who is an involuntary agent in his misdeeds should always be entitled to clemency and better terms, owing to the fact that he acted as an involuntary agent.”3
No doubt this is homiletic in tone, and perhaps even in origin, but the mere fact that it insists on principles seems to show that practice had already admitted the possibility of discretion in assessing liability, and was feeling the need of principles in exercising it. A few years later, the passage we have just quoted was embodied in the laws of Canute,4 almost verbatim, and so we may conclude that it was certainly more than mere moralising by an unpractical cleric. As we have just seen, the author of the Leges Henrici Primi is equally emphatic, a century later, on the possibility of discretion. Moreover, the Church had long ago prepared the way, and the Penitentials of the seventh and eighth centuries were already abandoning the idea of fixed tariffs as a measure of human responsibility.1
This view of Anglo-Saxon practice in fixing liability is all the more attractive since it coincides with the results obtained from investigating German as well as English legal history.2
It may very well be that the history of tort liability has run the same course as the history of homicide which we have outlined in a previous chapter,3 that is to say, a simple and severe legal rule, to which discretionary exceptions could be made by competent authorities, is typical of the first stage; the second stage is represented by the recognition by the law itself of those exceptions. Looking merely at the history of the formal rules, we thus gain the impression of an absolute liability which is in course of reduction to more rational limits; if, on the other hand, we take into account the discretionary tempering of strict law with mercy which the sources frequently allude to, the change seems to be one of form rather than of substance.
TRESPASS IN THE EARLY PLEA ROLLS
It is naturally to trespass that we first look for the later history of the onerous standard of liability just discussed. Here we have to recognise that the scope of trespass has considerably changed in the course of the centuries. Our earliest examples seem all to be cases of undoubted violence with a strong criminal element. The plaintiff has been beaten, wounded, chained, imprisoned, starved, carried away to a foreign country, and has suffered many “enormities”.4 In later times it is agreed that many of these expressions are just traditional forms without much meaning; but there clearly was a time when they accurately represented the plaintiff’s case. Defences to trespass in its earliest form therefore take one of two lines, a denial of the facts by a plea of not guilty, or a plea in justification such as self-defence, lawful authority, or the like.
LIABILITY IN TRESPASS
This was certainly the original nature of trespass, and as long as it was confined to cases which involved acts which must have been deliberate, there was little room for questions of liability to arise. A momentous departure was made when the common law began to admit what we may call constructive trespasses, and to remedy them by an action which hitherto had been confined to deliberate acts of violence in breach of the peace. The date of this revolution has not been ascertained, but it is very desirable that it should be, for we are clearly in the presence of a turning-point in the history of tort liability. The use of traditional formulae naturally tends to obscure the change. The beating, wounding, evil entreating, and other enormities continue to be alleged, but as words of court with purely artificial meanings. The persistence of the pleading rule that a defence of “not guilty” puts the facts in issue (and nothing else), and its corollary that proof of the facts is sufficient to condemn the defendant, must finally have raised the whole problem of liability. Such a change would hardly have been sudden, nor would purely technical trespasses have appeared immediately; we should expect, on the contrary, a gradual transition from the deliberate assault, through the accidental injury, and thence to the merely technical assault. Consequently, the problem of liability would only present itself gradually and in fragmentary fashion. Such cases become prominent when firearms are in general use;1 how much earlier they are to be found seems at present unknown.
If we turn to trespass to land, the same stages of development are discernible. The action of trespass in its original form was concerned with violent invasions by marauders, accompanied in most cases by serious assaults on the owner and his servants, and the forcible removal of cattle and stock. Such a state of affairs was common enough in the time of the barons’ wars, the period of the ordainers, and the Wars of the Roses. The admission of the plea that the close was not the plaintiff’s freehold but the defendant’s, introduced a technical element, however, by laying emphasis on the right of the plaintiff rather than on the tort of the defendant. Considerations of title thus became closely associated with trespass quare clausum fregit, and may be the explanation for the growth of highly technical trespasses to land. An early and very important example is the case in 1466 which is frequently cited all through the later discussions of liability.2 The defendant clipped a thorn hedge, the clippings fell on the land of an adjoining landowner, and the defendant entered and removed them. The question was, whether this entry was an actionable trespass (the falling of the clippings was not laid as a trespass in the pleadings, it seems, although it was discussed in the argument). Upon demurrer, a remarkable debate took place.
For the plaintiff it was urged that “if a man does something, even something lawful, and in doing it tort and damage are caused against his will to another, yet he shall be punished if by any means he could have prevented the damage”, or, as another serjeant put it, “if a man does something, he is bound to do it in such wise that no prejudice or damage thereby ensues to others”. The defendant seems to have set up the view that the trespass was justifiable, and that he could enter to remove the clippings, just as he could enter if his cattle had strayed from the highway to drive them out. This proposition was denied by Littleton, J., who declared that “the law is the same in small matters as in great”, only the damages might be slight in some cases. Choke, J., suggested that if the defendant had pleaded that the wind blew the clippings on to the plaintiff’s land, then the defendant would have been justified in entering to remove them. Among other points touched upon, a clear distinction was drawn between criminal and civil liability. Malice prepense was essential to felony, it was said, and an accidental wounding could be trespass, even if it were not felony.
Such was the discussion; Mr Justice Holmes said that judgment was given for the plaintiff, but the Year Book says nothing of judgment either way. The case is hardly authority for any view of liability for it contains no decision; the preponderance of opinion seemed to be on the side of those who urged that the defendant was liable, but the most significant thing of all is the way in which it was argued. It seems clearly to have been a new point, and although imaginary cases were put (and disputed) there seems no confident appeal to any settled rule. However, the numerous dicta in this case were repeated some years later and gained force in the repetition. Particularly, the remark about an accidental wounding while shooting at butts was repeated with approval1 and stands at the head of a long line of cases arising out of shooting accidents. A later age, therefore, concluded from this case of 1466 that the better opinion was that put forward for the plaintiff, and that liability attached for all harm done in the nature of a trespass, however involuntary, if it was “in any way” avoidable.
NEGLIGENCE AND TRESPASS
It is largely a matter of terminology how this standard of liability is described. It may be called “absolute” in that it is unconnected with the defendant’s intention, and it might be argued that the exception of inevitable happenings is tantamount to saying that the defendant did not act voluntarily. On the other hand, it has appeared possible to some to regard this exception as the source from which the idea of negligence entered into these discussions, especially since in modern times the test of inevitability has varied. Thus, if we regard results as inevitable if no reasonable care would have prevented them, then the “absolute” liability will be reduced to liability for negligence only. It is quite conceivable that such a transition took place, although the case of 1466 is perfectly clear in describing the plaintiff’s demand that liability attached if the defendant “by any means could have prevented the damage”. There is language in cases around the year 1800 which lends colour to this view;2 it may be that it helped, together with the procedural changes which Professor Winfield regards as being primarily responsible, in spreading the idea of negligence throughout the field of trespass.1
It seems, however, rather too high an estimate of this possible transition in the measure of inevitability to say that “there has never been a time in English law, since (say) the early 1500’s, when the defendant in an action of trespass 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”.2 Professor Winfield has collected a line of cases from the early seventeenth century where the defence of accident or misadventure was rejected as inadmissible.3 These seem to indicate clearly that the fifteenth-century standard of inevitability was still maintained.
If we look back we shall see that the flexibility of Anglo-Saxon law seems to have vanished with the advent of the common law. The early Year-Book period apparently contains no authority on liability for accident in trespass (although it was settled that no criminal liability attached). When we do find dicta, late in the fifteenth century, they state a rule which seems severe and inflexible, and in the time of Coke this is embodied in emphatic decisions. (At that very moment, as we shall see later, the liability of bailees was also greatly augmented.) The early seventeenth century seems therefore the age of greatest severity—and it is well to recall Holmes’ remark that if there ever was a period of “absolute” liability it was “in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction”.4
If we look forward, we see no great development in trespass until the early nineteenth century. The old principle, enshrined in rules of pleading, was maintained. As we have indicated, there may have been a tendency for a moment to reduce liability by changing the standard of inevitability; but much more important were certain fairly old rules about cattle trespassing from the highway into adjoining land, for they were used as a guide in the multitude of traffic cases which are so prominent at the present time. Equally crucial are the procedural considerations which have led plaintiffs to abandon an action of trespass and bring case instead. We must now turn to the action on the case, therefore, and trace the principles of liability applicable to it.
NEGLIGENCE AND CASE
We have already suggested that the violent trespasses were the first varieties of quare action to acquire an independent existence. Of the large and varied collection which remained, some seem to have fallen out of use, others became independent actions in their turn, and the rest survived and were classified eventually as “actions on the case”. For a long time, case must have been an immense “miscellanea” in the classification of forms of action, and particular topics must have been put there because they would not fit in anywhere else, rather than because they had any logical connection with one another. Repulsion from trespass is therefore the main test, as soon as tests are thought to be desirable, and so we get the positive principle that direct assault to the person, and violation of the possession of chattels or land, constitute trespass; damage less direct, or damage caused by means less personal, will therefore be classified perforce as “case”. This view helped considerably when the damage was caused by the defendant’s omission. Thus if A “maliciously” breaks his own pool so that the water floods his neighbour’s land, trespass lies,1 but if A fails in his duty to clean his ditch or to repair his banks, and so his neighbour’s land is flooded, case will lie.2 Here we have an important admission that some sorts of inactivity which cause damage are actionable. There are, in fact, grounds for believing that the word “negligence” was first used in this sense: the defendant “neglected” to do something, and thus caused the damage.3
The primitive conditions which are seen in violent trespasses and thefts were perpetuated in the principle that trespass, like larceny, was a violation of possession; consequently a bailee could not “steal” the chattels delivered to him,4 and if he damaged them trespass would not lie either.5 He had not violated the plaintiff’s possession. The only remedy (apart from detinue) was case.6 Closely connected with this notion was the feeling that if I ask someone to do work on my chattel, or even to operate surgically or medically upon my person, trespass will not lie if ill betides. Indeed, it would seem that no action lay of any sort, for the plaintiff himself invited trouble. This position was turned by the development of assumpsit; the defendant will not be liable unless he “undertook” to produce a particular result. If he gave this undertaking and failed to carry it out, then the plaintiff can frame his case in the nature of deceit. The earliest example was one in 1348. The report is brief:
“J. de B. complained by bill that G. de F. on a certain day and year at B. on Humber undertook to carry his mare safe and sound in his boat across the water of Humber; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his tort and damage.
“Richmond. Judgment of the bill which does not suppose that we have done any tort, but rather proves that he would have an action by writ of covenant or1 trespass.
“Baukwell, J., K.B. It seems that you did him a trespass when you overloaded your boat so that the mare perished; and so answer.
“Richmond. Not guilty, and [the others said] we are ready to aver our bill.”2
The case has some of the features of a new experiment. It was heard by bill while the King’s Bench happened to be at York, and so the record is less technical than it would have been on an original writ. The nature of the action is obscure. The bill seems merely to have stated the facts. Richmond’s objection seems to be that those facts prima facie might sustain an action of covenant, or an action of trespass; but since it alleges no covenant under seal, nor any use of force and arms, it does neither, and so the bill must fail as disclosing no cause of action. This dilemma between tort and contract henceforth appears with monotonous regularity in later cases, but its effectiveness as a dialectic device depends on the assumptions (which Richmond evidently had in his mind) that “tort” means only those wrongs which were actionable by trespass vi et armis, and covenant means only a covenant under seal. Baukwell was prepared to regard the facts as constituting a “trespass”—whether vi et armis or not, we are not told. According to the report the plaintiff alleged an assumpsit, but as we have seen, the judge declared that the action really was trespass.
The record, on the other hand, does not contain the word assumpsit although it does say that the defendant “ferryman” had “received the mare to carry safely in his ship”. The verdict further says that the boat was loaded “against the will of the plaintiff”. This seems to foreshadow the action of case against bailees, while the omission from the record of an express assumpsit, coupled with the description of the defendant as a ferryman, resembles the form used against those in common callings. All these indications of case are difficult to reconcile with the Year Book’s statement that Baukwell, J., held that it was trespass. Luckily the report is amply confirmed on this point by the record which shows that capias issued against the vanquished defendant. Now capias (which may lead to outlawry) was possible in trespass, but impossible in case.1 The report is therefore correct, and the bill was treated by the court as a bill of trespass, although from the point of view of later lawyers, it seemed an example of case on assumpsit.2
In the farrier’s case3 we get a stage further. The writ was brought “on the case” and did not allege force and arms, nor that the defendant acted maliciously but was upheld in spite of these objections. There was, however, no mention of an assumpsit, for the farrier’s is a common calling.
Other cases might also be considered, but their general effect seems to be that just after the middle of the fourteenth century it was not considered vital to distinguish the three forms of trespass, case, and assumpsit. That task was left for the reign of Richard II, and more particularly to the fifteenth century, which seems to have felt a special vocation for establishing logical distinctions. As a result of that development, assumpsit became in effect contractual;4 and so we are left with trespass on the case.
Assumpsit left its mark, even on some of those types of trespass on the case which did not continue to allege it. When brought against physicians and horse-doctors, in particular, there was a tendency to insert in the writ and the declaration an allegation that the defendant had acted “negligently and recklessly” or similar words.5 At first these words seem to be merely an example of that solemn abuse of the defendant which we expect in mediaeval pleadings,6 but gradually they acquire a meaning; moreover, they seem to profit by an ambiguity, for by this time case was available where the defendant had “neglected” to do a duty (such as enclose, or repair, his property). Hence the combination of negligent action and passive inaction covers a fairly large part of the ground included in “case”. The trees were familiar to English lawyers long before they formed an idea of the wood, and not until 1762 did it occur to the compiler of an abridgment to collect material under the heading “action on the case for negligence”. As Professor Winfield remarks, “Comyns was not writing the law of torts; he was trying to classify remedies”.7
By 1800 “case for negligence” was a common expression, and it began to be said that the action was actually based upon negligence.8 Thenceforward it became possible to argue that negligence was an independent tort.
So far, we have been concerned with the liability of a man for his own acts, intentional or unintentional. We now have to consider the liability which he may incur for the acts of others.
Even criminal law occasionally visited the sins of the fathers upon the children. The traitor’s and the felon’s issue were disinherited, and the wife and children of a juryman convicted by attaint were to be thrust out of their homes. Indeed, the converse has also been maintained, and Dean Wigmore has argued that parents and masters were liable for the crimes of their children and servants. There certainly was some liability for the crimes of a slave, one passage suggesting that it could be discharged by the noxal surrender of the slave or his redemption at a fixed price.1 The institution of slavery, however, has left little mark on our law, and most of what we find in earlier sources on masters’ liability is rather of a police nature; the master must produce any members of his household in court if they are wanted. If he fails, the master may be pecuniarily liable.2
The liability of husband for wife, parent for child, and master for servant is a broader question, and needs a little comment. Dean Wigmore has collected a typical sample of the material.3 From it he concludes that “there certainly was a time when the master bore full responsibility for the harmful acts of his serf or his domestic”,4 although by the Norman period there was an “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”.5 It made so much difference that it seems more natural to state the law in the converse, i.e. the master (like everyone else) is liable for acts he commanded, or subsequently ratified. If he proves that he did neither the one nor the other, he is quit. But (and this is important) he is very frequently put to his proof, for the thirteenth century in its wordly wisdom gravely suspected the master of complicity in the servant’s misdeeds; so gravely, in fact, that it often imposed upon him the burden of proving his innocence. Such a suspicion, based upon a shrewd knowledge of contemporary society, is quite different, however, from a rule of law making the master criminally or civilly liable. Such cases are fairly common in local courts, but are hardly to be found in the King’s Court. Indictment before the King’s justices was a more serious and risky proceeding than a presentment or a plaint in a leet, and so we need not expect to find the King’s Court systematically applying a presumption of the master’s complicity whenever a servant is before the court. If the master is to be reached, it must be on a clear charge of being a principal or an accessory, and this later became the view even in local courts.
The attitude of the King’s Court is well illustrated by the picturesque case of Bogo de Clare in Parliament in 1290. Having a suit in an ecclesiastical court against the Earl of Cornwall, Bogo obtained a citation which was served on the earl as he was walking up Westminster Hall to Council. This was to the manifest contempt of the King, who laid his damages at ten thousand pounds.1 Bogo had hardly got out of this dangerous situation when one of his own adversaries tried to serve a citation in Bogo’s own house. Bogo had just learned that citations were distasteful to the King, and his lackeys promptly made the apparitor eat his process, parchment, wax and all.2 Bogo had not realised that circumstances alter cases, and found himself defending an action of trespass in Parliament.3 His defence is an important text for our purpose, for he took the line that he was not liable for a wrong that his servants had done, and demurred. The plaintiff was examined and admitted that Bogo himself neither committed nor ordered the threspass, and so Bogo had judgment. He still had to answer the King for the breach of Parliament’s and the King’s peace by men in his mainpast. He mustered all his retinue, but the authors of the outrage had fled, and the others swore that Bogo knew nothing of it and never commanded it, and so the affair died down, as nothing could be done to Bogo criminally until the principals had been convicted.4
One who had others in his mainpast was under an obligation to secure their attendance if a charge was brought against them. In some places it certainly was a custom to exact a payment from the mainpast if there was a conviction.5 But it is equally clear that the mainpast could defend a criminal charge by proving that he neither commanded nor condoned the offence.6 The King’s Court did not tolerate these notions. In 1302 it held that fining the mainpast was illegal,7 and in 1313 Staunton, J., declared “let those who have done wrong come and answer for their own misdeeds”.8
We therefore do not feel justified in saying that a master was criminally liable for his servant’s acts, save in the obvious case where he commanded them or approved them. Was he civilly liable? There is only one passage in the borough custumals on the point, and that comes from Waterford, where there was a rule that a citizen was liable for damage done by his apprentice, just as for his son who is of age (i.e. able to count twelve pence).1 This is very meagre evidence for the proposition that mercantile custom held masters liable for their servants’ torts. Hardly more illuminating is an oft-quoted passage in the statute of staples, which according to one view “states the general principle applicable to the master’s liability for the torts of his servants”, by abolishing liability formerly imposed by mercantile custom.2 The statute says:
“No merchant or other person, of what condition soever he be, shall lose or forfeit his goods or merchandise for any trespass or forfeiture incurred by his servant, unless his act is by the command and consent of his master, or he has offended in the office in which his master put him, or unless the master is in some other way bound to answer for the servant’s act by law merchant as has been used heretofore.”3
The master’s liability here mentioned can only mean such liability as that of the master of a ship for the acts of his crew, which was being laid down at this moment in maritime jurisdictions.4 But the most common case of the loss of goods which the statute remedies is of quite a different nature. The Crown was constantly straining the law of forfeiture, and had obtained decisions that if a bailee incurs a forfeiture, the goods bailed to him are liable to it and the merchandise in his hands goes to the Crown.5 So, too, a thief on conviction forfeited the stolen goods to the Crown.6 Some boroughs had succeeded in maintaining a custom that the rule should not apply to them, and others got charters exempting them from its operation.7 It was this indefensible rule which the statute finally abrogated for the whole country. As often happens,8 the statute did not deal with the whole question, but only with one particular case—that of a servant. The Cinque Ports alone at this time had a general rule that bailed goods are not forfeit by the felony of the bailee.9 One thing is clear, and that is that the object of the statute was not to change the law of liability (mercantile or common law), but to relieve merchants from a strained application of the law of forfeiture.1
Down to the close of the middle ages, therefore, the common law had stuck to its simple principle. A man is liable for his own voluntary acts, but he is not liable for his servant’s acts unless they have become his own, by reason of his previous command or subsequent ratification. There were few exceptions. The innkeeper was liable for the harm done by his servants, but that is only incident to a still wider liability; so too, there was the liability of a householder for a fire started by his servant; the liability of a shipmaster for his crew belongs, on the other hand, to a completely different line of history.
In its best days, the common law has always been willing to moderate its rules where public policy requires, and the establishment of the principle of respondeat superior is a good example. A long line of statutes deals with the problem of the oppressive official—sheriff, under-sheriff, escheator, gaoler, bailiff, etc. The sheriffs themselves were not above reproach, but their underlings bore a thoroughly bad reputation in the middle ages. It was useless to make them civilly liable to injured members of the public because in many cases the underlings were themselves men of little substance, and if a defendant had no considerable land within the county there was little prospect of enforcing a judgment for damages against him. The legislature therefore set up the rule that if the underling of certain public officials was insufficient to satisfy a judgment, then his superior should answer.2 This liability is therefore only applicable to public officials3 and not to employers generally, and it is only a secondary liability which comes into play when the original defendant is unable to satisfy judgment.
GROWTH OF THE MODERN RULE OF EMPLOYER’S LIABILITY
As late as 1685 the courts were clinging to the mediaeval rule that if a master orders his servant to do something that is lawful, and the servant “misbehave himself, or do more”, the master is not liable in trespass.4 With the advent of Lord Holt, the mercantile law (with which he was specially familiar) began to exert through him a considerable amount of influence on the common law’s doctrine. In a shipping case, Holt took the opportunity of laying down a general rule—“whoever employs another is answerable for him, and undertakes for his care to all that make use of him”.1 As a principle, the rule was clearly maritime (and eventually Roman); but the introduction of a strange rule can hardly take place unless plausible arguments can be produced tending to show that it is conformable to some things already established in the common law, and fortunately those excuses were easily found in certain rules about common callings, liability for fire, the respondeat superior rule, and the ratification which could be inferred if the master profited by the servant’s tort. Holt was willing to place the development on the broadest basis of convenience and public policy; others took refuge in various technicalities according to their taste or learning, and even Blackstone preferred to base an employer’s liability on a variety of separate considerations rather than on the general policy of social duty.2
Even in the middle ages there were a few special situations in which the general rules of liability were modified, and a few words about them will illustrate the policy of the common law.
THE BAILEE’S LIABILITY
This subject has been much controverted, and has several features of special interest.3 Before the time of Bracton it is difficult to deduce any settled rule out of the few cases available.4 It is clear that a bailee could bring the appeal of larceny against a thief; this is a natural development, for, as we have seen, the appeal was a procedure which grew up as a result of the normal actions of persons who have lost chattels. The bailee who discovers that the chattels bailed are missing, will, of course, begin to look for them, follow the trail, raise the neighbours, and consequently challenge the thief and claim the chattels. Similarly, if need be, he can replevy them. This perfectly natural procedure has been translated into terms of legal theory by saying that “the bailee, because he was possessor, had the rights of an owner as against all the world except his bailor”.5 This is certainly true, but confusion crept in at an early date, for some of the cases show the bailee supporting his appeal (perhaps unnecessarily) by the further statement that he had paid (or ought to pay) compensation to his bailor for the loss.6 It seems a little hazardous, however, to make the further deduction that “the bailor, by reason of the bailment, had lost his real right to the chattel, and could only assert his better right by a personal action [sc. detinue] against the bailee”,1 for we find a case2 where the bailor seems to bring the appeal against the thief, offering to prove by the body of the bailee from whom the goods were stolen, and who was bound to repay them to the owner.
It has likewise been maintained that the liability of the bailee was absolute, both before and after the time of Bracton. There is singularly little evidence for this proposition,3 which must be regarded at present as conjectural.
When we come to Bracton we find a difficulty which is so typical that it deserves mention, not only as part of the history of bailees’ liability, but also as illustrating the Bractonian problem in general. Bracton has an elaborate classification of bailments and says that in some cases the bailee is liable for fraud and negligence only.4 What are we to conclude from this? Is Bracton stating Roman law on a point where English law had not yet reached a decision, or is Bracton stating real English law, although in Roman terms? No amount of study of Bracton will settle this, for until we have independent evidence of the English law of Bracton’s day, we must remain uncertain of how far we can take Bracton as stating current law and not merely his own Romanesque speculations. The principal situation which would raise the question is when the goods have been stolen from the bailee without his connivance and without his negligence. There is one early case where the bailee’s defence was that the goods had been stolen when his house was burnt, but unfortunately judgment was given on default without discussing the point.5
The pre-Bracton law of bailment is very obscure. It is easier to speak of the two centuries following Bracton, and they seem to contain clear evidence that the bailee’s liability was not absolute. Britton states as law that the borrower of a chattel is not liable for fire, flood or theft unless they were due to his fault or negligence.6 Such a defence was actually allowed7 in 1299. Another case in 1315, once obscure, but now clarified by the printing of the record by the Selden Society,8 shows conclusively that theft without the default of the bailee was a good defence. Further cases in 1339,1 13552 and 14313 confirm this, and in view of such a line of authority it seems difficult to maintain that “these attempts thus to modify the liability of the bailee never materialised”.4 The evidence seems rather to support the view that the attempts were successful for nearly two centuries after Bracton.
Unfortunately, the peculiar nature of the Bractonian problem prevents us from saying whether there is clear continuity from the pre-Bracton period, for there is still, perhaps, the unanswered question whether Bracton was truthfully stating the law of his own day. If this was not the case, then there might be the possibility that the post-Bracton cases were in fact decided on the strength of his Romanesque exposition of the subject. A further element of ambiguity is suggested in the Harvard manuscript of Brevia Placitata, where it is alleged that a distrainor may be legally liable for accident, and yet escape by taking the general issue and trusting the jury to be lenient in the matter of damages.5 It is, of course, very rarely that an experienced and crafty practitioner affords us so fascinating a glimpse of mediaeval law in action.
Be this as it may, it seems clear that from Britton down to 1431 it was familiar doctrine that a bailee was liable for fraud and negligence only. Just after the middle of the fifteenth century the discussion took a different turn. It had been settled for centuries that a bailee could sue a thief or a trespasser, and from time to time it had been suggested that this right to sue was perhaps based, not on his possession, but on the fact that he was liable to the bailor.6 This view was argued in the famous Marshal’s Case7 in 1455. It was agreed that the marshal of a prison was in the position of a bailee, and was liable as a bailee to the party on whose process the prisoner had been committed. In this case, the plaintiff sued the marshal of the King’s Bench prison for damages on the escape of a prisoner. The defence was that a multitude of the King’s enemies8 broke the prison and allowed the prisoners to escape. The argument which is reported shows one point clearly—that the bailee is not liable for the act of God or of the King’s foreign enemies. Apart from that everything is obscure; the debate is fragmentarily reported, the Year Book gives no decision, and the record shows that none was reached, although the case was several times adjourned. The Marshal’s Case, therefore, contains few dicta, and no judgment, and consequently is historically worthless. The one dictum of interest was a converse form of the liability-over theory. As Danby put it, the bailee was liable because he had a right of action against a thief or trespasser, and therefore he was liable for everything except act of God or the King’s enemies, in both of which cases he obviously had no action and therefore no liability.
The stream of dicta continues during the reign of Henry VII and through the sixteenth century until Southcote’s Case in 1601. As Dr Fletcher remarks,1 “it is significant that before that case there is no actual decision holding an ordinary bailee liable for loss, such as theft, occasioned without any fault or negligence on his part”. There are several reports,2 which is fortunate, for Coke’s seems to have been somewhat embroidered. It seems that the only authority relied on was the Marshal’s Case, which the court apparently regarded as having been decided for the plaintiff. The facts were simple. To detinue, the defendant pleaded that the goods had been stolen. The plaintiff replied that the thief was in fact the defendant’s servant, but no stress seems to have been placed on that aspect of the case, and in fact the replication alleging it was held by the court to be “idle and vain”. Judgment was given on the plea, and for the plaintiff. Absolute liability was at last recognised in unequivocal terms by the court of King’s Bench, and at a moment (as we have seen) when liability in other directions was being increased.3
The classifications of bailments attempted by Glanvill and Bracton did not commend themselves to the common law courts, and so for a long time we had but one rule applicable to all bailments. One apparent exception—servants and factors, who were excluded from the category of bailees—was due to a procedural accident, for in the action of account those who were accountable were not liable if the goods entrusted to them were stolen without their default.4
As a result of the rule in Southcote’s Case, prudent bailees made express stipulations limiting their liability, as Coke in his note appended to the case recommended them. This in itself compelled some rough classification of bailments such as was familiar to the learned from Bracton, and to all from Doctor and Student,5 whose author went even to the Summa Rosella for neat examples. This ferment of new ideas and new practices soon began to unsettle the law of Southcote’s Case; the replacement of detinue by assumpsit, moreover, threw emphasis on negligence (and later on contract). Consequently, in spite of the apparent finality of Southcote’s Case, Lord Holt had the opportunity in the case of Coggs v. Bernard6 of treating the entire question as open, and of mapping out the whole field of bailment in the light of Bracton’s learning, which was thus tardily received into the common law. His historical investigation showed that there was no authority for the decision in Southcote’s Case, and for its single rigid rule of absolute liability he substituted several rules requiring standards of care suitable to the different sorts of bailment.
It having been now made clear that there was no absolute liability of bailee to bailor, the suggestion which was frequently made, especially in the seventeenth century, that the bailee’s right to sue was based on that liability over, presented difficulties. That doctrine was still adhered to in 1892, but in 1902 the Court of Appeal held that the ultimate historical basis was the bailee’s possession, as Holmes had long ago demonstrated, and abandoned the alternative which had tempted lawyers for over six hundred years.1
It is characteristic of our mediaeval law that although it did not classify bailments, it did classify bailees, and imposed special liabilities upon people who had a special status by reason of their occupation. Carriers, innkeepers and farriers are well-known examples. The legal explanation of their onerous liability has exercised many minds, and one of the greatest of modern common lawyers urged that it was merely a survival of the absolute liability which once lay upon all bailees.2 Simple and attractive, this theory has nevertheless been criticised by several scholars, notably Professor Beale.3 One branch of this argument we have already examined, with the results that we gravely doubt whether absolute liability was a part of our earliest law, that we are fairly sure that it did not prevail in the fourteenth and fifteenth centuries, and that its first absolutely clear appearance is in 1601.
Now the special liability of those engaged in common callings begins to appear at a time when our evidence is clearest that the bailee’s liability was only for fraud and negligence.4 We have already mentioned the action of assumpsit which lay against one who was entrusted with a chattel to do work on it, and whose faulty workmanship resulted in loss or damage.5 This action was available against all bailees, whether professionally or only casually engaged in work of that kind. As we have seen, it was based on the assumpsit—the express undertaking to employ proper skill and care and to obtain a particular result. Gradually a modification in the form of the writ indicated a somewhat different attitude. Instead of counting on an assumpsit, the plaintiff counts on “the custom of the realm” which he chooses as the basis of his action. The defendant’s undertaking (or the absence of an undertaking) is therefore immaterial, and it is to the “custom of the realm” that we must look for his liability. A very early case1 was against an innkeeper, thus:
“Trespass was brought by W. against T., an innkeeper and his servant, counting that whereas it is accustomed and used throughout the realm of England that where there is a common inn, the innkeeper and his servants ought to guard the goods and things which their guests have in their chambers within the inn for as long as they are lodged there, the said W. came on a certain day in the town of Canterbury to the said T. and lodged with him, he and his horse, his goods and chattels (to wit, cloth) and twenty marks of silver counted in a purse, and took his room and put the goods, chattels and money in the room, and then went into the town about his business; while he was in the town the same goods, chattels and money were taken out of his said room by wicked folk by default of the innkeeper’s keeping and of his servants, wrongfully and against the peace, to his damage, etc. (And he had a writ on all the matter according to his case.)
“The innkeeper demanded judgement since he had not said in his writ nor in his count that he delivered the goods to him to keep, etc., nor that the goods were taken away by them [? the defendants] and so he has not supposed any manner of guilt [culp’] in them; and also he gave him a key to his room to keep the goods in the room; judgement whether action lies. And on this matter both sides demurred in judgement.
“And it was adjudged by Knivet, J. that the plaintiff recover against them, and the court taxed the damages, and he will not get the damages just as he counted them. . . . But there has been no guilt in them, for no manner of tort is supposed in their persons; for although they were charged in the law, that will not be a reason to put them into prison. . . .
“And so he had an elegit.”2
It will be noticed that it is a writ of trespass, but “he had a writ on all the matter according to his case”. In short, it comes at the moment when case is being distinguished from trespass. The discussion as to whether capias should issue shows the anomalous use of the words “guilt” and “tort” at this moment. It will also be noticed that the count alleges negligence in the form of “default of keeping”. In time it becomes clear that the allegation of negligence means less than it would seem. The early distinction is clearly that one in a common calling is liable without an assumpsit. Later there was the question of the extent of his liability. In the case of the innkeeper it was early established that his liability exceeded that of the contemporary bailee, but the similar case of the common carrier was not settled until much later. It may be doubted whether transport by land was a regular trade in the middle ages. Surviving family names indicate the commonest trades of the middle ages, but although we have numerous families of Bakers, Taylors and the like, we seem to have no Carriers.1 The Carter was a manorial tenant, and the Porter probably had an even narrower range of activity. As for carriage by sea, merchants still generally travelled with their cargo and supervised the handling of it.
The first mention of the common carrier as being in a peculiar legal position seems to be in Doctor and Student, where his liability is equated with that of other tradesmen who are liable for negligence.2 In the seventeenth century the cases show that his liability is stricter, and that he must answer for theft even if he has not been negligent.3 The influence of Southcote’s Case may well be suspected here. In admiralty, the carrier was not liable for theft except by the crew,4 but the common law was capturing admiralty jurisdiction and soon treated sea carriers as common carriers subject to the custom of the realm.5
It was in Coggs v. Bernard that the carrier’s liability received fullest and most reasoned treatment. The negligence alleged in the count was now clearly otiose and had lost its original meaning; the limits set by Lord Holt are the mercantile exceptions “act of God and the King’s enemies”. In Holt’s day these exceptions were construed liberally, and seem to have meant “inevitable accident”. Nearly a century later, a serious change was made in the interpretation of the ancient, but unfortunate phrase “act of God”, by Lord Mansfield. In Forward v. Pittard6 he treated the words literally (as he conceived it), confined them to a few rare meteorological phenomena, and held a carrier liable for what was certainly an inevitable accident. More than that, he used a striking phrase which has ever since been quoted as marking this, the high-water mark, of carrier’s liability: “a carrier is in the nature of an insurer”.
The articles were reprinted and revised for the Select Essays in Anglo-American Legal History, where this passage occurs at iii. 480.
Holmes, Common Law, 89.
The Myth of Absolute Liability, Law Quarterly Review, xlii. 37.
Huebner, History of Germanic Private Law (tr. Philbrick), 528.
VI Aethelred, 59 [Editor: illegible character] (tr. A. J. Robertson).
II Canute, 68, 3.
F. Cimetier, Les Sources du droit ecclésiastique (Paris, 1930), 32.
Huebner, op. cit., 527.
Above, p. 445.
Like tales of violence may occur in an assize of novel disseisin: Eyre Rolls (Selden Society, vol. lix), no. 232 (1221).
Winfield, Trespass and Negligence, Law Quarterly Review, xlix. 360-361.
Y.B. 6 Edward IV, Michs. no. 18, f. 7; Holmes, Common Law, 85-87; Holdsworth, iii. 375.
By Rede, J., in Y.B. 21 Henry VII, Trin. no. 5, f. 27 (1506). This was not an accident case, but one where a defendant was held liable for a technical trespass to chattels by putting them into the plaintiff’s barn: his kind intention did not justify him.
Wigmore in Select Essays in Anglo-American Legal History, iii. 506-507.
Above, pp. 460-463.
Wigmore, op. cit., 506.
Winfield, Trespass and Negligence, Law Quarterly Review, xlix. 360.
Holmes The Common Law, 89; below, p. 479.
F.N.B., 87 L.
Ibid., 93 G; case for damage to realty which did not amount to an entry upon it seems to be derived from the twelfth-century assize of nuisance, whose history is very obscure.
“Nonfeasance or negligence,” said Coke in Earl of Shrewsbury’s Case (1610), 9 Rep. 50 b. The criticism by Holdsworth, viii. 469 n. 3, of Blackstone, Commentaries, iii. 211, for basing liability for fire and cattle-trespass upon “negligent keeping” would be unnecessary if that phrase had retained its older sense of “neglecting to keep”. Cf. Y.BB. Edward II (Selden Society), xxiv. 98, for a termor who might have a fee, by the “negligence” of the mortgagor to redeem.
Above, p. 449; Glanvill, x. 13.
If the chattel were merely in the defendant’s hand for a moment, in circumstances which did not amount to a bailment, then he is liable in trespass: Y.BB. Edward II (Selden Society), xxii. 290, when the defendant defaced a charter handed to him for his inspection.
Y.B. 13 Richard II (Ames Foundation), 103-104 (1390). The general proposition as above stated, is implicit in the argument of Persay in Y.B. 46 Edward III, 19 (no. 19), that a declaration in case ought to allege a bailment expressly and omit vi et armis, and that if there were no bailment, then vi et armis must be alleged. Apparently the court inferred from the facts that a farrier was a bailee of the horse.
In the Vulgate text, ou; in MS. Bodley 364, f. 90 b, plus que, “rather than”; in Exeter College, Oxford, MS. 134, f. 37 b, et nemye, “and not”. (I owe these readings to the kindness of Mr Derek Hall.)
22 Ass. 94 (no. 41); record in Bulletin of Institute of Historical Research (1935), xiii. 36; C. H. S. Fifoot, History and Sources: Tort and Contract (1949), 330; A. K. Kiralfy, Action on the Case (1951), 154; A. K. Kiralfy, The Humber Ferryman and the Action on the Case, Cambridge Law Journal (1953), xi. 421
Until 1504; 19 Hen. VII, c. 9. It was possibly forbidden by 18 Edw. III, st. 2, c. 5 (1344). It has been stated, however, that outlawry had been possible in actions on the case throughout the reign of Edward IV: Margaret Hastings, Common Pleas in the Fifteenth Century, 170.
Dr Kiralfy, Cambridge Law Journal, xi. 424, would regard it as in direct line with certain actions on the case.
Y.B. 46 Edward III, 19 no. 19 (1372); above, p. 469, n. 6; Ames, Lectures on Legal History, 130; Holdsworth, iii. 430.
The contractual implications of assumpsit will be considered later: below, pp. 637 ff.
Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 227.
As Winfield has pointed out, Law Quarterly Review, xlii. 198.
Winfield, in Law Quarterly Review, xlii. 195.
Above, p. 97; Bracton, 124 b.
Select Essays in Anglo-American Legal History, iii. 498-501.
Ibid., 495; cf. Court Baron (Selden Society), 79.
Ibid., 497. For an example of ratification, see Rot. Parl., i. 74 a, and for command, Eyre Rolls (Selden Society, vol. lix), no. 85.
Rot. Parl., i. 17.
A favourite joke among the peerage. Clifford nearly lost his life through trying it on a royal messenger in 1250: Pollock and Maitland, ii. 507-508.
Rot. Parl., i. 24.
Cf. Bulletin of the Institute of Historical Research, v. 132; Sayles, King’s Bench, ii. 19. For an alleged conviction on similar facts, see Pollock and Maitland, ii. 485 n. 5.
This amercement is clearly of a police, rather than a penal, character and need not imply criminal liability (cf. the murdrum). For a suggested origin, see Eyre of Kent (Selden Society), i. 95.
Court Baron (Selden Society), nos. 13, 34.
Y.B. 30 & 31 Edward I (Rolls Series), 202 (1302).
Eyre of Kent (Selden Society), i. 90 (1313). For a different interpretation of these cases, see 3 Holdsworth, 383.
Borough Customs (Selden Society), i. 222.
Holdsworth, iii. 387.
27 Edw. III, st. 2, c. 19 (1353).
Select Cases in Law Merchant (Selden Society), ii. pp. xcv-xcvi (1349), which is discussed by E. G. M. Fletcher, History of Carrier’s Liability, 58-59.
Fitz., Corone, 334 (1329); contrast Y.B. 12 Richard II (Ames Foundation), 4 (1388).
Ibid., 317, 318, 319 (1329); the writ of restitution was created by statute 21 Henry VIII, c. 11 (1529).
Haverfordwest, c. 1200 (Bateson, Borough Customs, i. 221-222); Cork, 1242 (Ballard and Tait, Borough Charters, ii. 192).
The queerest example is surely 5 Edward III, c. 10 (1331), which provides imprisonment for jurors who take bribes from both parties.
Borough Customs (Selden Society), i. 71-72. For the forfeiture of the stolen goods, see above, p. 452.
For another view, see Wigmore in Select Essays in Anglo-American Legal History, iii. 522.
Westminster II, cc. 2, 11, 43 (1285), and other statutes collected in Pollock and Maitland, ii. 533 n. 1. The superior is sometimes referred to by the ecclesiastical term “sovereign”: Y.BB. Edward II (Selden Society), xxii. 266 (1318).
There is one case where it is applied to the bailiff of a lord: Westminster I c. 17 (1275). Cf. Constitutions of Clarendon, c. 13 (above, p. 17).
Kingston v. Booth, Skinner, 228; for the whole of this paragraph, see Holdsworth, viii. 472 ff.
Boson v. Sandford, 2 Salk. 440 (1691).
Bl. Comm., i. 430 ff.; Holt’s view has been accepted as the real basis of the liability since the last hundred years.
Pollock and Maitland, ii. 170; Holdsworth, iii. 340 ff.; Holdsworth, vii. 450 ff.; Holmes, Common Law, 164 ff.; E. G. M. Fletcher, Carrier’s Liability, 1-35.
See, however, Alfred, 20, Alfred, Einleitung 28 (in Liebermann, i. 36) and Stenton, English Feudalism, App. 46, for a deed limiting a bailee’s liability, c. 1150.
Holdsworth, vii. 450.
Select Pleas of the Crown (Selden Society), no. 126; Eyre Rolls (Selden Society, vol. lix), no. 977 (1221).
Holdsworth, vii. 450; the doubt we have raised only applies to the earliest period of the common law. See in general, Bordwell, Property in Chattels, Harvard Law Review, xxix. 374. The bailor’s action against strangers dates from the later fourteenth century.
Curia Regis Rolls, ii. 181-182 (1203).
Glanvill, x. 13, is uncorroborated.
Bracton, f. 62 b, 99.
Select Civil Pleas (Selden Society), no. 8 (1200).
Britton (ed. Nichols), i. 157; adding that if he borrows money, and foolishly shows it among thieves, and they rob him, he is still liable to the creditor, for he ought to have been more careful. The line between debt and detinue was still rather thin. For an indenture of 1309 relieving an apprentice of liability for loss of his master’s goods by fire, water, or robbers, see Y.BB. Edward II (Selden Society), xxii. 127 (1317).
Brinkburn Cartulary (Surtees Society), 105.
Fitz., Detinue, 59; Y.BB. Edward II (Selden Society), xvii. 136; Beale, in Harvard Law Review, xi. 158.
Y.B. 12 & 13 Edward III (Rolls Series), 246.
29 Ass. 28 (a pledge stolen).
Y.B. 10 Henry VI, 21 no. 69.
Holdsworth, iii. 342.
Brevia Placitata (Selden Society), 207.
As early as 1317 there is a suggestion that a bailee, who is answerable to another, can replevy the cattle if they are distrained: Y.BB. Edward II (Selden Society), xxii. 49.
33 Henry VI, 1 no. 3; for an abstract of the record, see Fletcher, Carrier’s Liability, 253.
As this was in 1450, the allusion must be to Cade’s rebellion.
Fletcher, op. cit., 26; confirming Beale, Carrier’s Liability, Select Essays in Anglo-American Legal History, iii. 152. The cases are collected and discussed, Fletcher, 24 ff.
Cro. Eliz. 815; 4 Rep. 83 b; a MS. report at Harvard is printed in Harvard Law Review, xiii. 46.
Above, p. 468.
Fletcher, Carrier’s Liability, 19.
Extracts in Holdsworth, vii. 453 n. 3.
2 Ld. Raym. 909 (1703); for strictures upon Holt’s handling of Roman Law, see Holmes, Misunderstandings of the Civil Law, Harvard Law Review, xlvii. 759 at 767.
Claridge v. South Staffs. Tramway Co.,  1 Q.B. 422; The Winkfield,  P. 42; Holdsworth, vii. 454, 461-462.
Holmes, The Common Law, 188 ff.
History of Carrier’s Liability, Harvard Law Review, xi. 198, reprinted in Select Essays in Anglo-American Legal History, iii. 148. The latest and fullest discussion is that by Dr E. G. M. Fletcher, Carrier’s Liability (London, 1932).
Above, pp. 477-478.
Above, pp. 469-470.
Y.B. 42 Edward III, 11 no. 13 (1368); 42 Ass. 17. Cf. Y.B. 46 Edward III, 19 (1372); above, p. 471.
For elegit, see above, p. 390.
The earliest example I have found is a family called “Carryer” in 1563: G. J. Turner, Hunts Feet of Fines (Cambridge Antiquarian Society, vol. xxxvii), 153 no. 29. For “common carrier” as an occupation, see Fifoot, Sources: Tort and Contract, 158 n. 25 (a deed of 1459), and Bayne, Council of Henry VII (Selden Society), 151 (a case of 1505). The only earlier mention of a carrier I have found is in 1392: Putnam, Justices of the Peace, 440.
The examples given are driving at night, or by dangerous ways, or overloading a boat, Doctor and Student,ii. c. 38. Cf. Fifoot, Sources: Tort and Contract, 157.
Fletcher, Carrier’s Liability, 117.
Morse v. Slue, 3 Keb. 135 (1671), discussed at length by Fletcher, 134 ff.
1 Term Rep. 27 (1785).