The Common Law - Lecture 1

Our system of private liability for the consequences of a man's own acts, that is, for his trespasses, started from the notion of actual intent and actual personal culpability.

The object of this book is to present a general view of the Common Law.

It is something to show that the consistency of a system requires a particular result, but it is not all.

The life of the law has not been logic: it has been experience.

In the course of centuries the custom, belief, or necessity disappears, but the rule remains.

We must alternately consult history and existing theories of legislation.

Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language.

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

I will begin by taking a medley of examples embodying as many distinct rules, each with its plausible and seemingly sufficient ground of policy to explain it.

The development of personal liability for fierce wild animals at Rome has been explained.

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The official theory is that each new decision follows syllogistically from existing precedents.

On the other hand, in substance the growth of the law is legislative.

The desire for vengeance may be felt as strongly against a slave as against a freeman, and it is not without example nowadays that a like passion should be felt against an animal.

We have now followed the development of the chief forms of liability in modern law for anything other than the immediate and manifest consequences of a man's own acts.

It is commonly known that the early forms of legal procedure were grounded in vengeance.

I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further.

I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further.

A man's death had ceased to be the private affair of his friends as in the time of the barbarian folk-laws.

I dare say some such thought has helped to keep the practice alive, but I believe the true historic foundation is elsewhere.

Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.

The Common Law has changed a good deal since the beginning of our series of reports, and the search after a theory which may now be said to prevail is very much a study of tendencies.

I believe that it will be instructive to go back to the early forms of liability, and to start from them.

Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.

Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law begun in that way.

The feud led to the composition, at first optional, then compulsory, by which the feud was bought off.

I am bound to say, however, that I cannot find such an authority of that date.

The gradual encroachment of the composition may be traced in the Anglo-Saxon laws, and the feud was pretty well broken up, though not extinguished, by the time of William the Conqueror.

If no other right were given but to reduce a debtor to slavery, the law might be taken to look only to compensation, and to be modelled on the natural working of self-redress.

The reason given for it was of general application, and the principle expanded to the scope of the reason.

Next, take a case where a limit has been set to liability which had previously been unlimited.

It shows that they have started from a moral basis, from the thought that some one was to blame.

It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked.

It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked.

Our system of private liability for the consequences of a man's own acts, that is, for his trespasses, started from the notion of actual intent and actual personal culpability.

It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose.

This was the first instance of a master being made unconditionally liable for the wrongs of his servant.

Our system of private liability for the consequences of a man's own acts, that is, for his trespasses, started from the notion of actual intent and actual personal culpability.

It will readily be imagined that such a system as has been described could not last when civilization had advanced to any considerable height.

Furthermore, it will throw much light upon some important and peculiar doctrines which cannot be returned to later.

The customs, beliefs, or needs of a primitive time establish a rule or a formula.

It is noticeable that the commonest example in the most primitive customs and laws is that of a tree which falls upon a man, or from which he falls and is killed.

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life.

I will begin by taking a medley of examples embodying as many distinct rules, each with its plausible and seemingly sufficient ground of policy to explain it.

[6] A man has an animal of known ferocious habits, which escapes and does his neighbor damage.

He can prove that the animal escaped through no negligence of his, but still he is held liable.

By the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability.

In 1851, Congress passed a law, which is still in force, and by which the owners of ships in all the more common cases of maritime loss can surrender the vessel and her freight then pending to the losers; and it is provided that, thereupon, further proceedings against the owners shall cease.

In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate.

Even where, as in some of the cases, expiation seems to be intended rather than vengeance, the object is equally remote from an extrajudicial distress.

Let us now take another rule, for which, as usual, there is a plausible explanation of policy.

Without such a personification, anger towards lifeless things would have been transitory, at most.

We can conceive with comparative ease how a tree might have been put on the same footing with animals.

It certainly was treated like them, and was delivered to the relatives, or chopped to pieces for the gratification of a real or simulated passion.

The hatred for anything giving us pain, which wreaks itself on the manifest cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in the noxoe deditio and [12] other kindred doctrines of early Roman law.

It might be asked what analogy could have been found between a breach of contract and those wrongs which excite the desire for vengeance.

It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose.

In many cases of contract, as well as tort, the vessel was not only the security for the debt, but the limit of the owner's liability.

The true reason for this exceptional responsibility was the exceptional confidence which was necessarily reposed in carriers and innkeepers.

All servants are now as free and as liable to a suit as their masters.

The reader may begin to ask for the proof that all this has any bearing on our law of today.

I mean, of course, considerations of what is expedient for the community concerned.

"If a tiger killed a Kuki, his family were in disgrace till they had retaliated by killing and eating this tiger, or another; but further, if a man was killed by a fall from a tree, his relatives would take their revenge by cutting the tree down, and scattering it in chips."

Whether the principle when established was an indigenous growth, or whether the last step was taken under the influence of the Roman law, of which Bracton made great use, I cannot say.

[O]ne ground on which a man is bound at his peril to restrain cattle from trespassing is that he has valuable property in such animals, whereas he has not dogs, for which his responsibility is less.

It is the nature of those animals which the common law recognizes as the subject of ownership to stray, and when straying to do damage by trampling down and eating crops.

We will now follow the history of that branch of the primitive notion which was least likely to survive,—the liability of inanimate things.

It may be admitted that, if this doctrine were not supported by an appearance of good sense, it would not have survived.

The ship no doubt, like a sword would have been forfeited for causing death, in whosesoever hands it might have been.

That is from a book written in the reign of Henry VIII., about 1530.

[T]here is a long series of petitions to the king in Parliament that such forfeitures may be done away with.

A manuscript of the reign of Henry VI., only recently printed, discloses the fact that, if a man was killed or drowned at sea by the motion of the ship, the vessel was forfeited to the admiral upon a proceeding in the admiral's court, and subject to release by favor of the admiral or the king.

A collision takes place between two vessels, the Ticonderoga and the Melampus, through the fault of the Ticonderoga alone.

It may be admitted that, if this doctrine were not supported by an appearance of good sense, it would not have survived.

In many cases of contract, as well as tort, the vessel was not only the security for the debt, but the limit of the owner's liability.

But this body is animated and put in action by the crew, who are guided by the master.

"By custom the ship is bound to the merchandise, and the merchandise to the ship."

It must be left to the reader to decide whether ground has not been shown for believing that the same metaphysical confusion which naturally arose as to the ship's wrongful acts, affected the way of thinking as to her contracts.

It must be left to the reader to decide whether ground has not been shown for believing that the same metaphysical confusion which naturally arose as to the ship's wrongful acts, affected the way of thinking as to her contracts.

The whole manner of dealing with vessels obviously took the form which prevailed in the eases first mentioned.

Undoubtedly, it might be argued that many of the rules stated were derived from a seizure of the offending thing as security for reparation, at first, perhaps, outside the law.

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law.

But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten.

I mean, of course, considerations of what is expedient for the community concerned.

If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful, as we shall see more clearly further on.

If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful, as we shall see more clearly further on.

It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off.

It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off.

The study upon which we have been engaged is necessary both for the knowledge and for the revision of the law.

But none of the foregoing considerations, nor the purpose of showing the materials for anthropology contained in the history of the law, are the immediate object here.