THE COMMON LAW Oliver Wendell Holmes, Jr. Edited by Paulo J.S. Pereira & Diego M. Beltran University of Toronto Law School Typographical Society September 21, 2011 © Paulo J.S. Pereira & Diego M. Beltran, MMXI The text of this work is based on the 1881 edition of Oliver Wendell Holmes, which is now in the public domain. The typog- raphy and formatting are licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. Please send corrections and comments to [email protected]. Revision:1.12 contents 1 Early Forms of Liability 5 2 The Criminal Law 38 3 Torts.—Trespass and Negligence 71 4 Fraud, Malice, and Intent.—The Theory of Torts 117 5 The Bailee at Common Law 146 6 Possession 183 7 Contract.—I. History 219 8 Contract. II. Elements 256 9 Contract.—III. Void and Voidable 272 10 Successions—I. After Death—II. Inter Vivos300 11 Successions.—II. Inter Vivos 327 Index 361 preface This is written in pursuance of a plan which I have long had in mind. I had taken a first step in publishing a number of articles in the American Law Review, but I should hardly have attempted the task of writing a connected treatise at the present time, had it not been for the intention to deliver a course of Lectures at the Lowell Institute in Boston. That invitation encouraged me to do what was in my power to accomplish my wish. The necessity of preparing for the Lectures made it easier to go farther, and to prepare for printing, and accordingly I did so. I have made such use as I thought fit of my articles in the Law Review, but much of what has been taken from that source has been rearranged, rewritten, and enlarged, and the greater part of the work is new. The Lectures as actually delivered were a good deal simplified, and were twelve in number. The twelfth, however, was a summary of the foregoing eleven, and has been omitted as not necessary for a reader with the book before him. The limits of such an undertaking as the present must neces- sarily be more or less arbitrary. Those to which I have confined myself have been fixed in part by the limits of the course for which the Lecgures were written. I have therefore not attempted to deal with Equity, and have even excluded those subjects like Bills and Notes, or Partnership, which would naturally require an isolated treatment, and which do not promise to throw light on general theory. If, within the bounds which I have set myself, any one should feel inclined to reproach me for a want of greater detail, I canonlyquote thewords of Lehuërou, “Nous faisons une théorie et non un spicilège.” O. W. Holmes, Jr. Boston, February 8, 1881. early forms of liability The object of this book is to present a general view of the Object of the CommonLaw. Toaccomplishthetask,othertoolsareneeded Book besides logic. It is something to show that the consistency of a systemrequiresaparticularresult,butitisnotall. Thelifeofthe lawhasnotbeenlogic: ithasbeenexperience. Thefeltnecessities of the time, the prevalent moral and political theories, intuitions ofpublicpolicy,avowedorunconscious,eventheprejudiceswhich 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 developmentthroughmanycenturies,anditcannotbedealtwith 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 intonewproductsateverystage. Thesubstanceofthelawatany giventimeprettynearly corresponds,sofarasitgoes,withwhat 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 to-day, 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 5 EARLY FORMS OF LIABILITY seems very familiar and natural to us, that it has always been so. Manythingswhichwetakeforgrantedhavehadtobelaboriously 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 The Origin of civil and criminal. The Common Law has changed a good deal Legal Procedure since the beginning of our series of reports, and the search after in the Com- a theory which may now be said to prevail is very much a study position for of tendencies. I believe that it will be instructive to go back to Vengeance the early forms of liability, and to start from them. Origin of Legal Procedure in the Composition for Vengeance It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers have thought that theRomanlawstartedfromthebloodfeud,andalltheauthorities agreethattheGermanlawbeguninthatway. Thefeudledtothe composition,atfirstoptional,thencompulsory,bywhichthefeud was bought off. The gradual encroachment of the composition maybetracedintheAnglo-Saxonlaws,1 andthefeudwaspretty 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 scopeofvengeance. Vengeanceimportsafeelingofblame,andan opinion,howeverdistortedbypassion,thatawronghasbeendone. 1 E.g.Ine,c.74;Alfred,c.42;Ethelred,IV.4,§1. 2 Bract.,fol.144,145;Fleta,I.c.40,41;Co.Lit.126b;111Hawkins,P.C., Bk.2,ch.23,§15. © P. J. S. Pereira & D. M. Beltran, MMXI 6 EARLY FORMS OF LIABILITY 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. Glanvill3 mentions mêlées, blows, and wounds,—all forms of intentional violence. In the fuller description of such appeals given by Bracton4 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 to show that he immediately raised the hue and cry. So when Bractonspeaksofthelesseroffences, whichwerenotsuedbyway ofappeal,heinstancesonlyintentionalwrongs,suchasblowswith the fist, flogging, wounding, insults, and so forth.5 The cause of action in the cases of trespass reported in the earlier Year Books and in the Abbreviatio Placitorum 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 whichwerenottheintendedconsequenceofthedefendant’sact.6 Thence again it extended to unforeseen injuries.7 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 defen- dant,hisculpabilityorinnocence,impliesarefinementofjuridical conception equally foreign to Rome before the Lex Aquilia, and to England when trespass took its shape. I do not know any very 3 Lib.I.c.2,ad fin. 4 Bract.,fol.144a,“assulto præmeditato.” 5 Fol.155;cf.103b. 6 Y.B.6Ed.IV.7,pl.18. 7 Ibid.,and21H.VII.27,pl.5. © P. J. S. Pereira & D. M. Beltran, MMXI 7 EARLY FORMS OF LIABILITY satisfactory evidence that a man was generally held liable either in Rome8 or England for the accidental consequences even of his ownact. Butwhatevermayhavebeentheearlylaw,theforegoing 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 another Subject of this person or thing have been less carefully considered hitherto than Lecture, Indi- those which governed trespass, and I shall therefore devote the rect Liability for rest of this Lecture to discussing them. I shall try to show that Servants, Ani- this liability also had its root in the passion of revenge, and to mals, &c. point out the changes by which it reached its present form. But I shallnotconfinemyselfstrictlytowhatisneedfulforthatpurpose, becauseitisnotonlymostinterestingtotracethetransformation 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 willthrowmuchlightuponsomeimportantandpeculiardoctrines 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, andingeniousmindssetthemselvestoinquirehowitis 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 8 D.47.9.9. © P. J. S. Pereira & D. M. Beltran, MMXI 8 EARLY FORMS OF LIABILITY 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 manydistinctrules,eachwithitsplausibleandseeminglysufficient ground of policy to explain it. Amanhasananimalofknownferocioushabits,whichescapes 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 againstsomeonewhocanpaythedamages,orthatsuchwrongful actsasbyordinaryhumanlawsarelikelytohappeninthecourse 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 morecommoncasesof maritimelosscansurrenderthevessel and her freight then pending to the losers; and it is provided that, thereupon, further proceedings against the owners shall cease. Thelegislatorstowhomweowethisactarguedthat,ifamerchant embark a portion of his property upon a hazardous venture, it is reasonable that his stake should be confined to what he puts at risk,—a principle similar to that on which corporations have © P. J. S. Pereira & D. M. Beltran, MMXI 9 EARLY FORMS OF LIABILITY 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 firststeptowardsageneralization,itwillbenecessarytoconsider what is to be found in ancient and independent systems of law. There is a well-known passage in Exodus,9 which we shall have Mosaic Law 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 Greek Law 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.10 If he wounded a man, he was to be given up to the injured party to use him as he pleased.11 Soifhediddamagetowhichtheinjuredpartydidnot contribute as a joint cause. In either case, if the owner failed to surrender the slave, he was bound to make good the loss.12 If a beastkilledaman,itwastobeslainandcastbeyondtheborders. If an inanimate thing caused death, it was to be cast beyond the borders in like manner, and expiation was to be made.13 Nor was all this an ideal creation of merely imagined law, for it was 9 xxi.28. 10 θ0,ix.Jowett’sTr.,Bk.IX.p.437;Bohn’sTr.,pp.378,379. 11 θ0,xv.,Jowett,449;Bohn,397. 12 ια0,xiv.,Jowett,509;Bohn,495. 13 θ0,xii.,Jowett,443,444;Bohn,388. © P. J. S. Pereira & D. M. Beltran, MMXI 10