The Common Law - Oliver Wendell Holmes

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[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.

      It has been a rule of criminal pleading in England down into the present century, that an indictment for homicide must set forth the value of the instrument causing the death, in order that the king or his grantee might claim forfeiture of the deodand, "as an accursed thing," in the language of Blackstone.

      I might go on multiplying examples; but these are enough to show the remoteness of the points to be brought together.—As a first step towards a generalization, it will be necessary to consider what is to be found in ancient and independent systems of law.

      There is a well-known passage in Exodus, /1/ which we shall have to remember later: "If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit." When we turn from the Jews to the Greeks, we find the principle of the passage just quoted erected into a system. Plutarch, in his Solon, tells us that a dog that had bitten a man was to be delivered up bound to a log four cubits long. Plato made elaborate provisions in his Laws for many such cases. If a slave killed a man, he was to be given up to the relatives of the deceased. /2/ If he wounded a man, he was to be given up to the injured party to use him as he pleased. /3/ So if he did damage to which the injured party did not contribute as a joint cause. In either case, if the owner [8] failed to surrender the slave, he was bound to make good the loss. /1/ If a beast killed a man, it was to be slain and cast beyond the borders. If an inanimate thing caused death, it was to be cast beyond the borders in like manner, and expiation was to be made. /2/ Nor was all this an ideal creation of merely imagined law, for it was said in one of the speeches of Aeschines, that "we banish beyond our borders stocks and stones and steel, voiceless and mindless things, if they chance to kill a man; and if a man commits suicide, bury the hand that struck the blow afar from its body." This is mentioned quite as an every-day matter, evidently without thinking it at all extraordinary, only to point an antithesis to the honors heaped upon Demosthenes. /3/ As late as the second century after Christ the traveller Pausanias observed with some surprise that they still sat in judgment on inanimate things in the Prytaneum. /4/ Plutarch attributes the institution to Draco. /5/

      In the Roman law we find the similar principles of the noxoe deditio gradually leading to further results. The Twelve Tables (451 B.C.) provided that, if an animal had done damage, either the animal was to be surrendered or the damage paid for. /6/ We learn from Gains that the same rule was applied to the torts of children or slaves, /7/ and there is some trace of it with regard to inanimate things.

      The Roman lawyers, not looking beyond their own [9] system or their own time, drew on their wits for an explanation which would show that the law as they found it was reasonable. Gaius said that it was unjust that the fault of children or slaves should be a source of loss to their parents or owners beyond their own bodies, and Ulpian reasoned that a fortiori this was true of things devoid of life, and therefore incapable of fault. /1/ This way of approaching the question seems to deal with the right of surrender as if it were a limitation of a liability incurred by a parent or owner, which would naturally and in the first instance be unlimited. But if that is what was meant, it puts the cart before the horse. The right of surrender was not introduced as a limitation of liability, but, in Rome and Greece alike, payment was introduced as the alternative of a failure to surrender.

      The action was not based, as it would be nowadays, on the fault of the parent or owner. If it had been, it would always have been brought against the person who had control of the slave or animal at the time it did the harm complained of, and who, if any one, was to blame for not preventing the injury. So far from this being the course, the person to be sued was the owner at the time of suing. The action followed the guilty thing into whosesoever hands it came. /2/ And in curious contrast with the principle as inverted to meet still more modern views of public policy, if the animal was of a wild nature, that is, in the very case of the most ferocious animals, the owner ceased to be liable the moment it escaped, because at that moment he ceased to be owner. /3/ There [10] seems to have been no other or more extensive liability by the old law, even where a slave was guilty with his master's knowledge, unless perhaps he was a mere tool in his master's hands. /1/ Gains and Ulpian showed an inclination to cut the noxoe deditio down to a privilege of the owner in case of misdeeds committed without his knowledge; but Ulpian is obliged to admit, that by the ancient law, according to Celsus, the action was noxal where a slave was guilty even with the privity of his master. /2/

      All this shows very clearly that the liability of the owner was merely a way of getting at the slave or animal which was the immediate cause of offence. In other words, vengeance on the immediate offender was the object of the Greek and early Roman process, not indemnity from the master or owner. The liability of the owner was simply a liability of the offending thing. In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate. The Roman Twelve Tables made the owner, instead of the thing itself, the defendant, but did not in any way change the ground of liability, or affect its limit. The change was simply a device to allow the owner to protect his interest. /3/

      But

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