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THE COMMON LAW
THE COMMON LAW OLIVER WENDELL HOLMES LECTURE I.
EARLY FORMS OF LIABILITY.
[1] The object of this book is to present a general view of the
Common Law. To accomplish the task other tools are needed
besides logic. 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. 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. 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. In order to know what it
is we must know what it has been and what it tends to become.
We must alternately consult history and existing theories of
legislation. But the most difficult labor will be to understand
the combination of the two into new products at every stage. The
substance of the law at any given time pretty nearly [2]
corresponds so far as it goes with what is then understood to
be convenient; but its form and machinery and the degree to
which it is able to work out desired results depend very much
upon its past.
In Massachusetts today while on the one hand there are a great
many rules which are quite sufficiently accounted for by their
manifest good sense on the other there are some which can only
be understood by reference to the infancy of procedure among the
German tribes or to the social condition of Rome under the
Decemvirs.
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. In
doing so there are two errors equally to be avoided both by
writer and reader. One is that of supposing because an idea
seems very familiar and natural to us that it has always been
so. Many things which we take for granted have had to be
laboriously fought out or thought out in past times. The other
mistake is the opposite one of asking too much of history. We
start with man full grown. It may be assumed that the earliest
barbarian whose practices are to be considered had a good many
of the same feelings and passions as ourselves.
The first subject to be discussed is the general theory of
liability civil and criminal. 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.
It is commonly known that the early forms of legal procedure were
grounded in vengeance. Modern writers [3] 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. The gradual encroachment of the composition
may be traced in the Anglo-Saxon laws /1/ and the feud was
pretty well broken up though not extinguished by the time of
William the Conqueror. The killings and house-burnings of an
earlier day became the appeals of mayhem and arson. The appeals
de pace et plagis and of mayhem became or rather were in
substance the action of trespass which is still familiar to
lawyers. /2/ But as the compensation recovered in the appeal was
the alternative of vengeance we might expect to find its scope
limited to the scope of vengeance. Vengeance imports a feeling of
blame and an opinion however distorted by passion that a wrong
has been done. 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.
Whether for this cause or another the early English appeals for
personal violence seem to have been confined to intentional
wrongs. Glanvill /3/ mentions melees blows and wounds--all
forms of intentional violence. In the fuller description of such
appeals given by Bracton /4/ it is made quite clear that they
were based on intentional assaults. The appeal de pace et plagis
laid an intentional assault described the nature of the arms
used and the length and depth of the wound. The appellor also
had [4] to show that he immediately raised the hue and cry. So
when Bracton speaks of the lesser offences which were not sued
by way of appeal he instances only intentional wrongs such as
blows with the fist flogging wounding insults and so forth.
/1/ The cause of action in the cases of trespass reported in the
earlier Year Books and in the Abbreviatio Plaeitorum is always an
intentional wrong. It was only at a later day and after
argument that trespass was extended so as to embrace harms which
were foreseen but which were not the intended consequence of the
defendant's act. /2/ Thence again it extended to unforeseen
injuries. /3/
It will be seen that this order of development is not quite
consistent with an opinion which has been held that it was a
characteristic of early law not to penetrate beyond the external
visible fact the damnum corpore corpori datum. It has been
thought that an inquiry into the internal condition of the
defendant his culpability or innocence implies a refinement of
juridical conception equally foreign to Rome before the Lex
Aquilia and to England when trespass took its shape. I do not
know any very satisfactory evidence that a man was generally held
liable either in Rome /4/ or England for the accidental
consequences even of his own act. But whatever may have been the
early law the foregoing account shows the starting-point of the
system with which we have to deal. 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 original principles of liability for harm inflicted by [5]
another person or thing have been less carefully considered
hitherto than those which governed trespass and I shall
therefore devote the rest of this Lecture to discussing them. I
shall try to show that this liability also had its root in the
passion of revenge and to point out the changes by which it
reached its present form. But I shall not confine myself strictly
to what is needful for that purpose because it is not only most
interesting to trace the transformation throughout its whole
extent but the story will also afford an instructive example of
the mode in which the law has grown without a break from
barbarism to civilization. Furthermore it will throw much light
upon some important and peculiar doctrines which cannot be
returned to later.
A very common phenomenon and one very familiar to the student of
history is this. The customs beliefs or needs of a primitive
time establish a rule or a formula. In the course of centuries
the custom belief or necessity disappears but the rule
remains. The reason which gave rise to the rule has been
forgotten and ingenious minds set themselves to inquire how it
is to be accounted for. Some ground of policy is thought of
which seems to explain it and to reconcile it with the present
state of things; and then the rule adapts itself to the new
reasons which have been found for it and enters on a new career.
The old form receives a new content and in time even the form
modifies itself to fit the meaning which it has received. The
subject under consideration illustrates this course of events
very clearly.
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. Why? It is says the analytical jurist because although
he was not negligent at the moment of escape he was guilty of
remote heedlessness or negligence or fault in having such a
creature at all. And one by whose fault damage is done ought to
pay for it.
A baker's man while driving his master's cart to deliver hot
rolls of a morning runs another man down. The master has to pay
for it. And when he has asked why he should have to pay for the
wrongful act of an independent and responsible being he has been
answered from the time of Ulpian to that of Austin that it is
because he was to blame for employing an improper person. If he
answers that he used the greatest possible care in choosing his
driver he is told that that is no excuse; and then perhaps the
reason is shifted and it is said that there ought to be a remedy
against some one who can pay the damages or that such wrongful
acts as by ordinary human laws are likely to happen in the course
of the service are imputable to the service.
Next take a case where a limit has been set to liability which
had previously been unlimited. 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. The legislators to whom we owe this act argued that if a
merchant embark a portion of his property upon a hazardous
venture it is reasonable that his stake should be confined to
what [7] he puts at risk--a principle similar to that on which
corporations have been so largely created in America during the
last fifty years.
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