The Common Law

O >> Oliver Wendell Holmes, Jr. >> The Common Law

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Scanned and proofread by Stuart E. Thiel, Chicago, January 2000

Conventions:

Numbers in square brackets (e.g. [245]) refer to original page
numbers. Original footnotes were numbered page-by-page, and are
collected at the end of the text. In the text, numbers in slashes
(e.g./1/) refer to original footnote numbers. In the footnote
section, a number such as 245/1 refers to (original) page 245,
footnote 1. The footnotes are mostly citations to old English law
reporters and to commentaries by writers such as Ihering, Bracton
and Blackstone. I cannot give a source for decrypting the
notation.

There is quite a little Latin and some Greek in the original
text. I have reproduced the Latin. The Greek text is omitted; its
place is marked by the expression [Greek characters]. Italics and
diacritical marks such as accents and cedillas are omitted and
unmarked.

Lecture X has two subheads - Successions After Death and
Successions Inter Vivos. Lecture XI is also titled Successions
Inter Vivos. This conforms to the original.

THE COMMON LAW

OLIVER WENDELL HOLMES, JR.

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.

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 it may be asked how inanimate objects came to be [11] pursued
in this way, if the object of the procedure was to gratify the
passion of revenge. Learned men have been ready to find a reason
in the personification of inanimate nature common to savages and
children, and there is much to confirm this view. Without such a
personification, anger towards lifeless things would have been
transitory, at most. 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. 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. /1/

In the Athenian process there is also, no doubt, to be traced a
different thought. Expiation is one of the ends most insisted on
by Plato, and appears to have been the purpose of the procedure
mentioned by Aeschines. Some passages in the Roman historians
which will be mentioned again seem to point in the same
direction. /2/

Another peculiarity to be noticed is, that the liability seems to
have been regarded as attached to the body doing the damage, in
an almost physical sense. An untrained intelligence only
imperfectly performs the analysis by which jurists carry
responsibility back to the beginning of a chain of causation. 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. There is a
defective passage in Gaius, which seems to say that liability may
sometimes be escaped by giving up even the dead body of the
offender. /1/ So Livy relates that, Brutulus Papins having caused
a breach of truce with the Romans, the Samnites determined to
surrender him, and that, upon his avoiding disgrace and
punishment by suicide, they sent his lifeless body. It is
noticeable that the surrender seems to be regarded as the natural
expiation for the breach of treaty, /2/ and that it is equally a
matter of course to send the body when the wrong-doer has
perished. /3/

The most curious examples of this sort occur in the region of
what we should now call contract. Livy again furnishes an
example, if, indeed, the last is not one. The Roman Consul
Postumius concluded the disgraceful peace of the Caudine Forks
(per sponsionem, as Livy says, denying the common story that it
was per feedus), and he was sent to Rome to obtain the sanction
of the people. When there however, he proposed that the persons
who had made the [13] contract, including himself, should be
given up in satisfaction of it. For, he said, the Roman people
not having sanctioned the agreement, who is so ignorant of the
jus fetialium as not to know that they are released from
obligation by surrendering us? The formula of surrender seems to
bring the case within the noxoe deditio. /1/ Cicero narrates a
similar surrender of Mancinus by the pater-patratus to the
Numantines, who, however, like the Samnites in the former case,
refused to receive him. /2/

It might be asked what analogy could have been found between a
breach of contract and those wrongs which excite the desire for
vengeance. But it must be remembered that the distinction between
tort and breaches of contract, and especially between the
remedies for the two, is not found ready made. It is conceivable
that a procedure adapted to redress for violence was extended to
other cases as they arose. Slaves were surrendered for theft as
well as [14] for assault; /1/ and it is said that a debtor who
did not pay his debts, or a seller who failed to deliver an
article for which he had been paid, was dealt with on the same
footing as a thief. /2/ This line of thought, together with the
quasi material conception of legal obligations as binding the
offending body, which has been noticed, would perhaps explain the
well-known law of the Twelve Tables as to insolvent debtors.
According to that law, if a man was indebted to several creditors
and insolvent, after certain formalities they might cut up his
body and divide it among them. If there was a single creditor, he
might put his debtor to death or sell him as a slave. /3/

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. /4/ The
principle of our own law, that taking a man's body on execution
satisfies the debt, although he is not detained an hour, seems to
be explained in that way. But the right to put to death looks
like vengeance, and the division of the body shows that the debt
was conceived very literally to inhere in or bind the body with a
vinculum juris.

Whatever may be the true explanation of surrender in connection
with contracts, for the present purpose we need not go further
than the common case of noxoe deditio for wrongs. Neither is the
seeming adhesion of liability to the very body which did the harm
of the first importance. [15] The Roman law dealt mainly with
living creatures,-- with animals and slaves. If a man was run
over, it did not surrender the wagon which crushed him, but the
ox which drew the wagon. /1/ At this stage the notion is easy to
understand. 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. The surrender of the slave or beast empowered the injured
party to do his will upon them. Payment by the owner was merely a
privilege in case he wanted to buy the vengeance off.

It will readily be imagined that such a system as has been
described could not last when civilization had advanced to any
considerable height. What had been the privilege of buying off
vengeance by agreement, of paying the damage instead of
surrendering the body of the offender, no doubt became a general
custom. The Aquilian law, passed about a couple of centuries
later than the date of the Twelve Tables, enlarged the sphere of
compensation for bodily injuries. Interpretation enlarged the
Aquilian law. Masters became personally liable for certain wrongs
committed by their slaves with their knowledge, where previously
they were only bound to surrender the slave. /2/ If a pack-mule
threw off his burden upon a passer-by because he had been
improperly overloaded, or a dog which might have been restrained
escaped from his master and bit any one, the old noxal action, as
it was called, gave way to an action under the new law to enforce
a general personal liability. /3/ Still later, ship-owners and
innkeepers were made liable [16] as if they were wrong-doers for
wrongs committed by those in their employ on board ship or in the
tavern, although of course committed without their knowledge. The
true reason for this exceptional responsibility was the
exceptional confidence which was necessarily reposed in carriers
and innkeepers. /1/ But some of the jurists, who regarded the
surrender of children and slaves as a privilege intended to limit
liability, explained this new liability on the ground that the
innkeeper or ship-owner was to a certain degree guilty of
negligence in having employed the services of bad men? This was
the first instance of a master being made unconditionally liable
for the wrongs of his servant. The reason given for it was of
general application, and the principle expanded to the scope of
the reason.

The law as to ship-owners and innkeepers introduced another and
more startling innovation. It made them responsible when those
whom they employed were free, as well as when they were slaves.
/3/ For the first time one man was made answerable for the wrongs
of another who was also answerable himself, and who had a
standing before the law. This was a great change from the bare
permission to ransom one's slave as a privilege. But here we have
the history of the whole modern doctrine of master and servant,
and principal and agent. All servants are now as free and as
liable to a suit as their masters. Yet the principle introduced
on special grounds in a special case, when servants were slaves,
is now the general law of this country and England, and under it
men daily have to pay large sums for other people's acts, in
which they had no part and [17] for which they are in no sense to
blame. And to this day the reason offered by the Roman jurists
for an exceptional rule is made to justify this universal and
unlimited responsibility. /1/

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