The Common Law | Page 5

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 shah not be eaten; but the
owner of the ox shall be quit." When we turn from the Jews to the