Estimating the Cost of Civil Litigation !!
THE National Center for State Courts (NCSC) developed a model of cost estimation that is based on the time of expended by attorneys in various litigation tasks in a variety of civil cases filed in state courts. The litigation cycles are presented in another blog.
The NCSC published an estimation of numbers of hour in to be used in different cases. The model has three types of cases from complexity level and it assumes there are a senior attorney, junior attorney and a paralegal involved in each case. The model has six types of litigations and the time expended by attorneys is to resolve a “typical” automobile tort, premises liability, professional malpractice, breach of contract, employment dispute, and real property dispute.
The model uses three levels of complexity of case. The projected effort for each level is estimated based on a survey of different attorney officer. The medians of the percentage of efforts are shown in Figure 1, where each case type is split into six different litigation stages. The litigation stages will vary from a case to another based on the type of the case.
The model also deals with the witness as a separate parameter. The Model did not consider the cost of production of material, cost of communication, copying or duplication, binging, transcript productions, cost of undertaking, cost of service and Court fees. The typical number of discovery does not include cost of cross-examination. In my evaluation the cost will increase by about 150% on the average if we add cross-examination, and the other costs. The Court fees are very minimal compare other cost.
To understand the cross-examination cost. For each hour of cross-examination, two hours of preparation is required on the average and about $350 to produce the transcript. A typical 2 days of cross examination which will cost about 6 days of legal fee in addition to about $5600 to produce the transcript and the other cost involved with the reporters. The cost of undertaking, examining the undertaking and exchange letters to the other party. The Cost of printing or duplication will be about $1 per page and the cost of binding is premium. The Cost of sending or receiving faxes is about $2 per page. The cost of reading emails or phone is in 6 minutes increments. Note that the cost of sending 10 emails 1 line each to a lawyer will cost 1 hr to read and 1 hr to reply as lawyers will charge 6 minutes per email read and reply.
Figure 2 – Figure 13 show the different project cost of different cases and the cost can reach hundreds of thousands of dollars only in legal cost.
Figure 1 The median of effort in six litigation automobile tort, premises liability, professional malpractice, breach of contract, employment dispute, and real property dispute.
Figure 2 The projected Cost of cases of automobile tort without an expert witness. The cases are modeled as three different levels of complexity.
Figure 3 The projected Cost of cases of automobile tort with an expert witness. The cases are modeled as three different levels of complexity.
Figure 4 The projected Cost of cases of Malpractice without an expert witness. The cases are modeled as three different levels of complexity.
Figure 5 The projected Cost of cases of Malpractice with an expert witness. The cases are modeled as three different levels of complexity.
Figure 6 The projected Cost of cases of Employment dispute without an expert witness. The cases are modeled as three different levels of complexity.
Figure 7 The projected Cost of cases of Employment dispute with an expert witness. The cases are modeled as three different levels of complexity.
Figure 8 The projected Cost of cases of premises liability without an expert witness. The cases are modeled as three different levels of complexity.
Figure 9 The projected Cost of cases of premises liability with an expert witness. The cases are modeled as three different levels of complexity.
Figure 10 The projected Cost of cases of Real Property without an expert witness. The cases are modeled as three different levels of complexity.
Figure 11 The projected Cost of cases of Real Property with an expert witness. The cases are modeled as three different levels of complexity.
Figure 12 The projected Cost of cases of Contract Dispute without an expert witness. The cases are modeled as three different levels of complexity.
Figure 13 The projected Cost of cases of Contract Dispute with an expert witness. The cases are modeled as three different levels of complexity.
This post is for informational purposes only and does not provide legal advice. Materials on this website are published by Wael Badawy and to provide visitors with free information regarding the laws and policies described. However, this website is not designed for the purpose of providing legal advice to individuals. Visitors should not rely upon information on this website as a substitute for personal legal advice. While we make every effort to provide accurate website information, laws can change and inaccuracies happen despite our best efforts. If you have an individual legal problem, you should seek legal advice from an attorney in your own province/state.
The litigation cycle.
As the litigation can be very complex or very simple is can be modelled to six stages. The stages are Case Initiation, Discovery, Settlement, Pretrial Motions, Trial, Post-Disposition.
For all case types, a trial is the single most time-intensive stage of litigation, encompassing between one-third and one-half of total litigation time in cases that progress all the way through trial. Discovery is the second most time-intensive stage, encompassing between one-fifth and one-quarter of total attorney hours. The remaining litigation stages each required less than 15 percent of total attorney time.
The settlement can happen any stage. An appeal will start as well in stage 1, Discovery may not be as deep as the original cycle.
Activities within each stage is detailed below.
Stage 1: Case initiation
Initial fact investigation; legal research; draft complaint/answer, cross-claim, counterclaim or third-party claim; motion to dismiss on procedural grounds; defenses to procedural motions; meet and confer regarding case scheduling and discovery.
Draft and file mandatory disclosures; draft/answer interrogatories; respond to requests for production of documents; identify and consult with experts; review expert reports; identify and interview non-expert witnesses; depose opponent’s witnesses; prepare for and attend opponent’s depositions; resolve electronically stored information issues; review discovery/case assessment; resolve discovery disputes.
Stage 3: Settlement
Attend mandatory ADR; settlement negotiations; settlement conferences; draft settlement agreement; draft and file motion to dismiss.
Stage 4: Pre-trial Motions/Applications
Legal research; draft motions in limine; draft motions for summary judgment; answer opponent’s motions; prepare for motion hearings; argue motions.
Stage 5: Trial
Legal research; prepare witnesses and experts; meet with co-counsel (trial team); prepare for voir dire; motion to sequester; prepare opening and closing statements; prepare for direct (and cross) examination; prepare jury instructions; propose findings of fact and conclusions of law; propose orders; conduct trial.
Stage 6: Post-Disposition
Conduct post-disposition settlement negotiations; draft motions for rehearing, JNOV, additur, remittitur, enforce judgment; any appeal activity.
This post is for informational purposes only and does not provide legal advice. Materials on this website are published by Wael Badawy and to provide visitors with free information regarding the laws and policies described. However, this website is not designed for the purpose of providing legal advice to individuals. Visitors should not rely upon information on this website as a substitute for personal legal advice. While we make every effort to provide accurate website information, laws can change and inaccuracies happen despite our best efforts. If you have an individual legal problem, you should seek legal advice from an attorney in your own province/state.
FRAUD, MALICE, AND INTENT.—THE THEORY OF TORTS.
By Oliver Wendell Holmes, Jr.
The next subjects to be considered are fraud, malice, and intent. In the discussion of unintentional wrongs, the greatest difficulty to be overcome was found to be the doctrine that a man acts always at his peril. In what follows, on the other hand, the difficulty will be to prove that actual wickedness of the kind described by the several words just mentioned is not an element in the civil wrongs to which those words are applied.
It has been shown, in dealing with the criminal law, that, when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself. For the purposes of the criminal law, however, intent alone was found to be important, and to have the same consequences as intent with malevolence superadded. Pursuing the analysis, intent was found to be made up of foresight of the harm as a consequence, coupled with a desire to bring it about, the latter being conceived as the motive for the act in question. Of these, again, foresight only seemed material. As a last step, foresight was reduced to its lowest term, and it was concluded that, subject to exceptions which were explained, the general basis of criminal liability was knowledge, at the time of action of facts from which common experience showed that certain harmful results were likely to follow.
It remains to be seen whether a similar reduction is possible on the civil side of the law, and whether thus fraudulent, malicious, intentional, and negligent wrongs can be brought into a philosophically continuous series.
A word of preliminary explanation will be useful. It has been shown in the Lecture just referred to that an act, although always importing intent, is per se indifferent to the law. It is a willed, and therefore an intended coordination of muscular contractions. But the intent necessarily imported by the act ends there. And all muscular motions or co-ordinations of them are harmless apart from concomitant circumstances, the presence of which is not necessarily implied by the act itself. To strike out with the fist is the same act, whether done in a desert or in a crowd.
The same considerations which have been urged to show that an act alone, by itself, does not and ought not to impose either civil or criminal liability, apply, at least frequently, to a series of acts, or to conduct, although the series shows a further co-ordination and a further intent. For instance, it is the same series of acts to utter a sentence falsely stating that a certain barrel contains No. 1 Mackerel, whether the sentence is uttered in the secrecy of the closet, or to another man in the course of a bargain. There is, to be sure, in either case, the further intent, beyond the co-ordination of muscles for a single sound, to allege that a certain barrel has certain contents,—an intent necessarily shown by the ordering of the words. But both the series of acts and the intent are per se indifferent. They are innocent when spoken in solitude, and are only a ground of liability when certain concomitant circumstances are shown.
The intent which is meant when spoken of as an element of legal liability is an intent directed toward the harm complained of, or at least toward harm. It is not necessary in every case to carry the analysis back to the simple muscular contractions out of which a course of conduct is made up. On the same principle that requires something more than an act followed by damage to make a man liable, we constantly find ourselves at liberty to assume a co-ordinated series of acts as a proximately simple element, per se indifferent, in considering what further circumstances or facts must be present before the conduct in question is at the actor’s peril. It will save confusion and the need of repetition if this is borne in mind in the following discussion.
The chief forms of liability in which fraud, malice, and intent are said to be necessary elements, are deceit, slander and libel, malicious prosecution, and conspiracy, to which, perhaps, may be added trover.
Deceit is a notion drawn from the moral world, and in its popular sense distinctly imports wickedness. The doctrine of the common law with regard to it is generally stated in terms which are only consistent with actual guilt, and all actual guilty intent. It is said that a man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it, if the person addressed believes it, and is thereby persuaded to act to his own harm. This is no doubt the typical case, and it is a case of intentional moral wrong. Now, what is the party’s conduct here. It consists in uttering certain words, so ordered that the utterance of them imports a knowledge of the meaning which they would convey if heard. But that conduct with only that knowledge is neither moral nor immoral. Go one step further, and add the knowledge of another’s presence within hearing, still the act has no determinate character. The elements which make it immoral are the knowledge that the statement is false, and the intent that it shall be acted on.
The principal question then is, whether this intent can be reduced to the same terms as it has been in other cases. There is no difficulty in the answer. It is perfectly clear that the intent that a false representation should be acted on would be conclusively established by proof that the defendant knew that the other party intended to act upon it. If the defendant foresaw the consequence of his acts, he is chargeable, whether his motive was a desire to induce the other party to act, or simply an unwillingness for private reasons to state the truth. If the defendant knew a present fact (the other party’s intent), which, according to common experience, made it likely that his act would have the harmful consequence, he is chargeable, whether he in fact foresaw the consequence or not.
In this matter the general conclusion follows from a single instance. For the moment it is admitted that in one case knowledge of a present fact, such as the other party’s intent to act on the false statement, dispenses with proof of an intent to induce him to act upon it, it is admitted that the lesser element is all that is necessary in the larger compound. For intent embraces knowledge sufficing for foresight, as has been shown. Hence, when you prove intent you prove knowledge, and intent may often be the easier to prove of the two. But when you prove knowledge you do not prove intent.
It may be said, however, that intent is implied or presumed in such a case as has been supposed. But this is only helping out a false theory by a fiction. It is very much like saying that a consideration is presumed for an instrument under seal; which is merely a way of reconciling the formal theory that all contracts must have a consideration with the manifest fact that sealed instruments do not require one. Whenever it is said that a certain thing is essential to liability, but that it is conclusively presumed from something else, there is always ground for suspicion that the essential clement is to be found in that something else, and not in what is said to be presumed from it.
With regard to the intent necessary to deceit, we need not stop with the single instance which has been given. The law goes no farther than to require proof either of the intent, or that the other party was justified in inferring such intention. So that the whole meaning of the requirement is, that the natural and manifest tendency of the representation, under the known circumstances, must have been to induce the opinion that it was made with a view to action, and so to induce action on the faith of it. The standard of what is called intent is thus really an external standard of conduct under the known circumstances, and the analysis of the criminal law holds good here.
Nor is this all. The law pursuing its course of specification, as explained in the last Lecture, decides what is the tendency of representations in certain cases,—as, for instance, that a horse is sound at the time of making a sale; or, in general, of any statement of fact which it is known the other party intends to rely on. Beyond these scientific rules lies the vague realm of the jury.
The other moral element in deceit is knowledge that the statement was false. With this I am not strictly concerned, because all that is necessary is accomplished when the elements of risk are reduced to action and knowledge. But it will aid in the general object of showing that the tendency of the law everywhere is to transcend moral and reach external standards, if this knowledge of falsehood can be transmuted into a formula not necessarily importing guilt, although, of course, generally accompanied by it in fact. The moment we look critically at it, we find the moral side shade away.
The question is, what known circumstances are enough throw the risk of a statement upon him who makes it, if it induces another man to act, and it turns out untrue. Now, it is evident that a man may take the risk of his statement by express agreement, or by an implied one which the law reads into his bargain. He may in legal language warrant the truth of it, and if it is not true, the law treats it as a fraud, just as much when he makes it fully believing it, as when he knows that it is untrue, and means to deceive. If, in selling a horse, the seller warranted him to be only five years old, and in fact he was thirteen, the seller could be sued for a deceit at common law, although he thought the horse was only five. /1/ The common-law liability for the truth of statements is, therefore, more extensive than the sphere of actual moral fraud. But, again, it is enough in general if a representation is made recklessly, without knowing whether it is true or false. Now what does “recklessly” mean. It does not mean actual personal indifference to the truth of the statement. It means only that the data for the statement were so far insufficient that a prudent man could not have made it without leading to the inference that he was indifferent. That is to say, repeating an analysis which has been gone through with before, it means that the law, applying a general objective standard, determines that, if a man makes his statement on those data, he is liable, whatever was the state of his mind, and although he individually may have been perfectly free from wickedness in making it.
Hence similar reasoning to that which has been applied already to intent may be applied to knowledge of falsity. Actual knowledge may often be easier to prove than that the evidence was insufficient to warrant the statement, and when proved it contains the lesser element. But as soon as the lesser element is shown to be enough, it is shown that the law is ready to apply an external or objective standard here also.
Courts of equity have laid down the doctrine in terms which are so wholly irrespective of the actual moral condition of the defendant as to go to an opposite extreme. It is said that “when a representation in a matter of business is made by one man to another calculated to induce him to adapt his conduct to it, it is perfectly immaterial whether the representation is made knowing it to be untrue, or whether it is made believing it to be true, if, in fact, it was untrue.” /1/
Perhaps the actual decisions could be reconciled on a narrower principle, but the rule just stated goes the length of saying that in business matters a man makes every statement (of a kind likely to be acted on) at his peril. This seems hardly justifiable in policy. The moral starting point of liability in general should never be forgotten, and the law cannot without disregarding it hold a man answerable for statements based on facts which would have convinced a wise and prudent man of their truth. The public advantage and necessity of freedom in imparting information, which privileges even the slander of a third person, ought a fortiori, it seems to me, to privilege statements made at the request of the party who complains of them.
The common law, at any rate, preserves the reference to morality by making fraud the ground on which it goes. It does not hold that a man always speaks at his peril. But starting from the moral ground, it works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that. As in other cases, it is gradually accumulating precedents which decide that certain statements under certain circumstances are at the peril of the party who makes them.
The elements of deceit which throw the risk of his conduct upon a party are these. First, making a statement of facts purporting to be serious. Second, the known presence of another within hearing. Third, known facts sufficient to warrant the expectation or suggest the probability that the other party will act on the statement. (What facts are sufficient has been specifically determined by the courts in some instances; in others, no doubt, the question would go to the jury on the principles heretofore explained.) Fourth, the falsehood of the statement. This must be known, or else the known evidence concerning the matter of the statement must be such as would not warrant belief according to the ordinary course of human experience. (On this point also the court may be found to lay down specific rules in some cases. /1/)
I next take up the law of slander. It has often been said that malice is one of the elements of liability, and the doctrine is commonly stated in this way: that malice must exist, but that it is presumed by law from the mere speaking of the words; that again you may rebut this presumption of malice by showing that the words were spoken under circumstances which made the communication privileged,—as, for instance, by a lawyer in the necessary course of his argument, or by a person answering in good faith to inquiries as to the character of a former servant,— and then, it is said, the plaintiff may meet this defence in some cases by showing that the words were spoken with actual malice.
All this sounds as if at least actual intent to cause the damage complained of, if not malevolence, were at the bottom of this class of wrongs. Yet it is not so. For although the use of the phrase “malice” points as usual to an original moral standard, the rule that it is presumed upon proof of speaking certain words is equivalent to saying that the overt conduct of speaking those words may be actionable whether the consequence of damage to the plaintiff was intended or not. And this fails in with the general theory, because the manifest tendency of slanderous words is to harm the person of whom they are spoken. Again, the real substance of the defence is not that the damage was not intended,—that would be no defence at all; but that, whether it was intended or not,—that is, even if the defendant foresaw it and foresaw it with pleasure,—the manifest facts and circumstances under which he said it were such that the law considered the damage to the plaintiff of less importance than the benefit of free speaking.
It is more difficult to apply the same analysis to the last stage of the process, but perhaps it is not impossible. It is said that the plaintiff may meet a case of privilege thus made out on the part of the defendant, by proving actual malice, that is, actual intent to cause the damage complained of. But how is this actual malice made out? It is by showing that the defendant knew the statement which he made was false, or that his untrue statements were grossly in excess of what the occasion required. Now is it not very evident that the law is looking to a wholly different matter from the defendant’s intent? The fact that the defendant foresaw and foresaw with pleasure the damage to the plaintiff, is of no more importance in this case than it would be where the communication was privileged. The question again is wholly a question of knowledge, or other external standard. And what makes even knowledge important? It is that the reason for which a man is allowed in the other instances to make false charges against his neighbors is wanting. It is for the public interest that people should be free to give the best information they can under certain circumstances without fear, but there is no public benefit in having lies told at any time; and when a charge is known to be false, or is in excess of what is required by the occasion, it is not necessary to make that charge in order to speak freely, and therefore it falls under the ordinary rule, that certain charges are made at the party’s peril in case they turn out to be false, whether evil consequences were intended or not. The defendant is liable, not because his intent was evil, but because he made false charges without excuse.
It will be seen that the peril of conduct here begins farther back than with deceit, as the tendency of slander is more universally harmful. There must be some concomitant circumstances. There must at least be a human being in existence whom the statement designates. There must be another human being within hearing who understands the statement, and the statement must be false. But it is arguable that the latter of these facts need not be known, as certainly the falsity of the charge need not be, and that a man must take the risk of even an idle statement being heard, unless he made it under known circumstances of privilege. It would be no great curtailment of freedom to deny a man immunity in attaching a charge of crime to the name of his neighbor, even when he supposes himself alone. But it does not seem clear that the law would go quite so far as that.
The next form of liability is comparatively insignificant. I mean the action for malicious prosecution. A man may recover damages against another for maliciously and without probable cause instituting a criminal, or, in some cases, a civil prosecution against him upon a false charge. The want of probable cause refers, of course, only to the state of the defendant’s knowledge, not to his intent. It means the absence of probable cause in the facts known to the defendant when he instituted the suit. But the standard applied to the defendant’s consciousness is external to it. The question is not whether he thought the facts to constitute probable cause, but whether the court thinks they did.
Then as to malice. The conduct of the defendant consists in instituting proceedings on a charge which is in fact false, and which has not prevailed. That is the root of the whole matter. If the charge was true, or if the plaintiff has been convicted, even though he may be able now to prove that he was wrongly convicted, the defendant is safe, however great his malice, and however little ground he had for his charge.
Suppose, however, that the charge is false, and does not prevail. It may readily be admitted that malice did originally mean a malevolent motive, an actual intent to harm the plaintiff by making a false charge. The legal remedy here, again, started from the moral basis, the occasion for it, no doubt, being similar to that which gave rise to the old law of conspiracy, that a man’s enemies would sometimes seek his destruction by setting the criminal law in motion against him. As it was punishable to combine for such a purpose, it was concluded, with some hesitation, that, when a single individual wickedly attempted the same thing, he should be liable on similar grounds. /1/ I must fully admit that there is weighty authority to the effect that malice in its ordinary sense is to this day a distinct fact to be proved and to be found by the jury.
But this view cannot be accepted without hesitation. It is admitted that, on the one side, the existence of probable cause, believed in, is a justification notwithstanding malice; /2/ that, on the other, “it is not enough to show that the case appeared sufficient to this particular party, but it must be sufficient to induce a sober, sensible and discreet person to act upon it, or it must fail as a justification for the proceeding upon general grounds.” /1/ On the one side, malice alone will not make a man liable for instituting a groundless prosecution; on the other, his justification will depend, not on his opinion of the facts, but on that of the court. When his actual moral condition is disregarded to this extent, it is a little hard to believe that the existence of an improper motive should be material. Yet that is what malice must mean in this case, if it means anything. /2/ For the evil effects of a successful indictment are of course intended by one who procures all other to be indicted. I cannot but think that a jury would be told that knowledge or belief that the charge was false at the time of making it was conclusive evidence of malice. And if so, on grounds which need not be repeated, malice is not the important thing, but the facts known to the defendant.
Nevertheless, as it is obviously treading on delicate ground to make it actionable to set the regular processes of the law in motion, it is, of course, entirely possible to say that the action shall be limited to those cases where the charge was preferred from improper motives, at least if the defendant thought that there was probable cause. Such a limitation would stand almost alone in the law of civil liability. But the nature of the wrong is peculiar, and, moreover, it is quite consistent with the theory of liability here advanced that it should be confined in any given instance to actual wrong-doing in a moral sense.
The only other cause of action in which the moral condition of the defendant’s consciousness might seem to be important is conspiracy. The old action going by that name was much like malicious prosecution, and no doubt was originally confined to cases where several persons had conspired to indict another from malevolent motives. But in the modern action on the case, where conspiracy is charged, the allegation as a rule only means that two or more persons were so far co-operating in their acts that the act of any one was the act of all. Generally speaking, the liability depends not on the co-operation or conspiring, but on the character of the acts done, supposing them all to be done by one man, or irrespective of the question whether they were done by one or several. There may be cases, to be sure, in which the result could not be accomplished, or the offence could not ordinarily be proved, without a combination of several; as, for instance, the removal of a teacher by a school board. The conspiracy would not affect the case except in a practical way, but the question would be raised whether, notwithstanding the right of the board to remove, proof that they were actuated by malevolence would not make a removal actionable. Policy, it might be said, forbids going behind their judgment, but actual evil motives coupled with the absence of grounds withdraw this protection, because policy, although it does not require them to take the risk of being right, does require that they should judge honestly on the merits. /1/
Other isolated instances like the last might, perhaps, be found in different parts of the law, in which actual malevolence would affect a man’s liability for his conduct. Again, in trover for the conversion of another’s chattel, where the dominion exercised over it was of a slight and ambiguous nature, it has been said that the taking must be “with the intent of exercising an ownership over the chattel inconsistent with the real owner’s right of possession.” /1/ But this seems to be no more than a faint shadow of the doctrine explained with regard to larceny, and does not require any further or special discussion. Trover is commonly understood to go, like larceny, on the plaintiff’s being deprived of his property, although in practice every possessor has the action, and, generally speaking, the shortest wrongful withholding of possession is a conversion.
Be the exceptions more or less numerous, the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms. The true explanation of the reference of liability to a moral standard, in the sense which has been explained, is not that it is for the purpose of improving men’s hearts, but that it is to give a man a fair chance to avoid doing the harm before he is held responsible for it. It is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury.
But the law does not even seek to indemnify a man from all harms. An unrestricted enjoyment of all his possibilities would interfere with other equally important enjoyments on the part of his neighbors. There are certain things which the law allows a man to do, notwithstanding the fact that he foresees that harm to another will follow from them. He may charge a man with crime if the charge is true. He may establish himself in business where he foresees that of his competition will be to diminish the custom of another shopkeeper, perhaps to ruin him. He may a building which cuts another off from a beautiful prospect, or he may drain subterranean waters and thereby drain another’s well; and many other cases might be put.
As any of these things may be done with foresight of their evil consequences, it would seem that they might be done with intent, and even with malevolent intent, to produce them. The whole argument of this Lecture and the preceding tends to this conclusion. If the aim of liability is simply to prevent or indemnify from harm so far as is consistent with avoiding the extreme of making a man answer for accident, when the law permits the harm to be knowingly inflicted it would be a strong thing if the presence of malice made any difference in its decisions. That might happen, to be sure, without affecting the general views maintained here, but it is not to be expected, and the weight of authority is against it.
As the law, on the one hand, allows certain harms to be inflicted irrespective of the moral condition of him who inflicts them, so, at the other extreme, it may on grounds of policy throw the absolute risk of certain transactions on the person engaging in them, irrespective of blameworthiness in any sense. Instances of this sort have been mentioned in the last Lecture, /1/ and will be referred to again.
Most liabilities in tort lie between these two extremes, and are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions which were its proximate cause. Rut as fast as specific rules are worked out in place of the vague reference to the conduct of the average man, they range themselves alongside of other specific rules based on public policy, and the grounds from which they spring cease to be manifest. So that, as will be seen directly, rules which seem to lie outside of culpability in any sense have sometimes been referred to remote fault, while others which started from the general notion of negligence may with equal ease be referred to some extrinsic ground of policy.
Apart from the extremes just mentioned, it is now easy to see how the point at which a man’s conduct begins to be at his own peril is generally fixed. When the principle is understood on which that point is determined by the law of torts, we possess a common ground of classification, and a key to the whole subject, so far as tradition has not swerved the law from a consistent theory. It has been made pretty clear from what precedes, that I find that ground in knowledge of circumstances accompanying an act or conduct indifferent but for those circumstances.
But it is worth remarking, before that criterion is discussed, that a possible common ground is reached at the preceding step in the descent from malice through intent and foresight. Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence. The purpose of the law is to prevent or secure a man indemnity from harm at the hands of his neighbors, so far as consistent with other considerations which have been mentioned, and excepting, of course, such harm as it permits to be intentionally inflicted. When a man foresees that harm will result from his conduct, the principle which exonerates him from accident no longer applies, and he is liable. But, as has been shown, he is bound to foresee whatever a prudent and intelligent man would have foreseen, and therefore he is liable for conduct from which such a man would have foreseen that harm was liable to follow.
Accordingly, it would be possible to state all cases of negligence in terms of imputed or presumed foresight. It would be possible even to press the presumption further, applying the very inaccurate maxim, that every man is presumed to intend the natural consequences of his own acts; and this mode of expression will, in fact, be found to have been occasionally used, /1/ more especially in the criminal law, where the notion of intent has a stronger foothold. /2/ The latter fiction is more remote and less philosophical than the former; but, after all, both are equally fictions. Negligence is not foresight, but precisely the want of it; and if foresight were presumed, the ground of the presumption, and therefore the essential element, would be the knowledge of facts which made foresight possible.
Taking knowledge, then, as the true starting-point, the next question is how to determine the circumstances necessary to be known in any given case in order to make a man liable for the consequences of his act. They must be such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm. But this is a vague test. How is it decided what those circumstances are? The answer must be, by experience.
But there is one point which has been left ambiguous in the preceding Lecture and here, and which must be touched upon. It has been assumed that conduct which the man of ordinary intelligence would perceive to be dangerous under the circumstances, would be blameworthy if pursued by him. It might not be so, however. Suppose that, acting under the threats of twelve armed men, which put him in fear of his life, a man enters another’s close and takes a horse. In such a case, he actually contemplates and chooses harm to another as the consequence of his act. Yet the act is neither blameworthy nor punishable. But it might be actionable, and Rolle, C. J. ruled that it was so in Gilbert v. Stone. /1/ If this be law, it goes the full length of deciding that it is enough if the defendant has had a chance to avoid inflicting the harm complained of. And it may well be argued that, although he does wisely to ransom his life as he best may, there is no reason why he should be allowed to intentionally and permanently transfer his misfortunes to the shoulders of his neighbors.
It cannot be inferred, from the mere circumstance that certain conduct is made actionable, that therefore the law regards it as wrong, or seeks to prevent it. Under our mill acts a man has to pay for flowing his neighbor’s lands, in the same way that he has to pay in trover for converting his neighbor’s goods. Yet the law approves and encourages the flowing of lands for the erection of mills.
Moral predilections must not be allowed to influence our minds in settling legal distinctions. If we accept the test of the liability alone, how do we distinguish between trover and the mill acts? Or between conduct which is prohibited, and that which is merely taxed? The only distinction which I can see is in the difference of the collateral consequences attached to the two classes of conduct. In the one, the maxim in pari delicto potior est conditio defendentis, and the invalidity of contracts contemplating it, show that the conduct is outside the protection of the law. In the other, it is otherwise. /1/ This opinion is confirmed by the fact, that almost the only cases in which the distinction between prohibition and taxation comes up concern the application of these maxims.
But if this be true, liability to an action does not necessarily import wrong-doing. And this may be admitted without at all impairing the force of the argument in the foregoing Lecture, which only requires that people should not be made to pay for accidents which they could not have avoided.
It is doubtful, however, whether the ruling of Chief Justice Rolle would now be followed. The squib case, Scott v. Shepherd, and the language of some text-books, are more or less opposed to it. /2/ If the latter view is law, then an act must in general not only be dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable. But, aside from such exceptional cases as Gilbert v. Stone, the two tests agree, and the difference need not be considered in what follows.
I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it.
For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people. The ordinarily intelligent and prudent member of the community would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded. Hence, it may very properly be held that a man who does such a thing does it at his peril, and that, if damage ensues, he is answerable for it. The co-ordinated acts necessary to point a gun and pull a trigger, and the intent and knowledge shown by the co-ordination of those acts, are all consistent with entire blamelessness. They threaten harm to no one without further facts. But the one additional circumstance of a man in the line and within range of the piece makes the conduct manifestly dangerous to any one who knows the fact. There is no longer any need to refer to the prudent man, or general experience. The facts have taught their lesson, and have generated a concrete and external rule of liability. He who snaps a cap upon a gun pointed in the direction of another person, known by him to be present, is answerable for the consequences.
The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see why the jury should be consulted with regard to them. They are, however, facts of a special and peculiar function. Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct.
Sometimes courts are induced to lay down rules by facts of a more specific nature; as that the legislature passed a certain statute, and that the case at bar is within the fair meaning of its words; or that the practice of a specially interested class, or of the public at large, has generated a rule of conduct outside the law which it is desirable that the courts should recognize and enforce. These are matters of fact, and have sometimes been pleaded as such. But as their only importance is, that, if believed, they will induce the judges to lay down a rule of conduct, or in other words a rule of law, suggested by them, their tendency in most instances is to disappear as fast as the rules suggested by them become settled. /1/ While the facts are uncertain, as they are still only motives for decision upon the law,—grounds for legislation, so to speak,—the judges may ascertain them in any way which satisfies their conscience. Thus, courts recognize the statutes of the jurisdiction judicially, although the laws of other jurisdictions, with doubtful wisdom, are left to the jury. /2/ They may take judicial cognizance of a custom of merchants. /3/ In former days, at least, they might inquire about it in pais after a demurrer. /4/ They may act on the statement of a special jury, as in the time of Lord Mansfield and his successors, or upon the finding of a common jury based on the testimony of witnesses, as is the practice to-day in this country. But many instances will be found the text-books which show that, when the facts are ascertained, they soon cease to be referred to, and give place to a rule of law.
The same transition is noticeable with regard to the teachings of experience. There are many cases, no doubt, in which the court would lean for aid upon a jury; but there are also many in which the teaching has been formulated in specific rules. These rules will be found to vary considerably with regard to the number of concomitant circumstances necessary to throw the peril of conduct otherwise indifferent on the actor. As the circumstances become more numerous and complex, the tendency to cut the knot with the jury becomes greater. It will be useful to follow a line of cases up from the simple to the more complicated, by way of illustration. The difficulty of distinguishing rules based on other grounds of policy from those which have been worked out in the field of negligence, will be particularly noticed.
In all these cases it will be found that there has been a voluntary act on the part of the person to be charged. The reason for this requirement was shown in the foregoing Lecture. Unnecessary though it is for the defendant to have intended or foreseen the evil which he has caused, it is necessary that he should have chosen the conduct which led to it. But it has also been shown that a voluntary act is not enough, and that even a co-ordinated series of acts or conduct is often not enough by itself. But the co-ordination of a series of acts shows a further intent than is necessarily manifested by any single act, and sometimes proves with almost equal certainty the knowledge of one or more concomitant circumstances. And there are cases where conduct with only the intent and knowledge thus necessarily implied is sufficient to throw the risk of it on the actor.
For instance, when a man does the series of acts called walking, it is assumed for all purposes of responsibility that he knows the earth is under his feet. The conduct per se is indifferent, to be sure. A man may go through the motions of walking without legal peril, if he chooses to practise on a private treadmill; but if he goes through the same motions on the surface of the earth, it cannot be doubted that he knows that the earth is there. With that knowledge, he acts at his peril in certain respects. If he crosses his neighbor’s boundary, he is a trespasser. The reasons for this strict rule have been partially discussed in the last Lecture. Possibly there is more of history or of past or present notions of policy its explanation than is there suggested, and at any rate I do not care to justify the rule. But it is intelligible. A man who walks knows that he is moving over the surface of the earth, he knows that he is surrounded by private estates which he has no right to enter, and he knows that his motion, unless properly guided, will carry him into those estates. He is thus warned, and the burden of his conduct is thrown upon himself.
But the act of walking does not throw the peril of all possible consequences upon him. He may run a man down in the street, but he is not liable for that unless he does it negligently. Confused as the law is with cross-lights of tradition, and hard as we may find it to arrive at perfectly satisfactory general theory, it does distinguish in a pretty sensible way, according to the nature and degree of the different perils incident to a given situation.
From the simple case of walking we may proceed to the more complex cases of dealings with tangible objects of property. It may be said that, generally speaking, a man meddles with such things at his own risk. It does not matter how honestly he may believe that they belong to himself, or are free to the public, or that he has a license from the owner, or that the case is one in which the law has limited the rights of ownership; he takes the chance of how the fact may turn out, and if the fact is otherwise than as he supposes, he must answer for his conduct. As has been already suggested, he knows that he is exercising more or less dominion over property, or that he is injuring it; he must make good his right if it is challenged.
Whether this strict rule is based on the common grounds of liability, or upon some special consideration of past or present policy, policy has set some limits to it, as was mentioned in the foregoing Lecture.
Another case of conduct which is at the risk of the party without further knowledge than it necessarily imports, is the keeping of a tiger or bear, or other animal of a species commonly known to be ferocious. If such an animal escapes and does damage, the owner is liable simply on proof that he kept it. In this instance the comparative remoteness of the moment of choice in the line of causation from the effect complained of, will be particularly noticed. Ordinary cases of liability arise out of a choice which was the proximate cause of the harm upon which the action is founded. But here there is usually no question of negligence in guarding the beast. It is enough in most, if not in all cases, that the owner has chosen to keep it. Experience has shown that tigers and bears are alert to find means of escape, and that, if they escape, they are very certain to do harm of a serious nature. The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.
This remoteness of the opportunity of choice goes far to show that this risk is thrown upon the owner for other reasons than the ordinary one of imprudent conduct. It has been suggested that the liability stood upon remote inadvertence. /1/ But the law does not forbid a man to keep a menagerie, or deem it in any way blameworthy. It has applied nearly as strict a rule to dealings which are even more clearly beneficial to the community than a show of wild beasts.
This seems to be one of those cases where the ground of liability is to be sought in policy coupled with tradition, rather than in any form of blameworthiness, or the existence of such a chance to avoid doing the harm as a man is usually allowed. But the fact that remote inadvertence has been suggested for an explanation illustrates what has been said about the difficulty of deciding whether a given rule is founded on special grounds, or has been worked out within the sphere of negligence, when once a special rule has been laid down.
It is further to be noticed that there is no question of the defendant’s knowledge of the nature of tigers, although without that knowledge he cannot be said to have intelligently chosen to subject the community to danger. Here again even in the domain of knowledge the law applies its principle of averages. The fact that tigers and bears are dangerous is so generally known, that a man who keeps them is presumed to know their peculiarities. In other words, he does actually know that he has an animal with certain teeth, claws, and so forth, and he must find out the rest of what an average member of the community would know, at his peril.
What is true as to damages in general done by ferocious wild beasts is true as to a particular class of damages done by domestic cattle, namely, trespasses upon another’s land. This has been dealt with in former Lectures, and it is therefore needless to do more than to recall it here, and to call attention to the distinction based on experience and policy between damage which is and that which is not of a kind to be expected. Cattle generally stray and damage cultivated land when they get upon it. They only exceptionally hurt human beings.
I need not recur to the possible historical connection of either of these last forms of liability with the noxoe deditio, because, whether that origin is made out or not, the policy of the rule has been accepted as sound, and carried further in England within the last few years by the doctrine that a man who brings upon his land and keeps there anything likely to do mischief if it escape, must keep it in at his peril. /1/ The strictness of this principle will vary in different jurisdictions, as the balance varies between the advantages to the public and the dangers to individuals from the conduct in question. Danger of harm to others is not the only thing to be considered, as has been said already. The law allows some harms to be intentionally inflicted, and a fortiori some risks to be intentionally run. In some Western States a man is not required to keep his cattle fenced in. Some courts have refused to follow Rylands v. Fletcher. /2/ On the other hand, the principle has been applied to artificial reservoirs of water, to cesspools, to accumulations of snow and ice upon a building by reason of the form of its roof, and to party walls. /1/
In these cases, as in that of ferocious animals, it is no excuse that the defendant did not know, and could not have found out, the weak point from which the dangerous object escaped. The period of choice was further back, and, although he was not to blame, he was bound at his peril to know that the object was a continual threat to his neighbors, and that is enough to throw the risk of the business on him.
I now pass to cases one degree more complex than those so far considered. In these there must be another concomitant circumstance known to the party in addition to those of which the knowledge is necessarily or practically proved by his conduct. The cases which naturally suggest themselves again concern animals. Experience as interpreted by the English law has shown that dogs, rams, and bulls are in general of a tame and mild nature, and that, if any one of them does by chance exhibit a tendency to bite, butt, or gore, it is an exceptional phenomenon. Hence it is not the law that a man keeps dogs, rams, bulls, and other like tame animals at his peril as to the personal damages which they may inflict, unless he knows or has notice that the particular animal kept by him has the abnormal tendency which they do sometimes show. The law has, however, been brought a little nearer to actual experience by statute in many jurisdictions.
Now let us go one step farther still. A man keeps an unbroken and unruly horse, knowing it to be so. That is not enough to throw the risk of its behavior on him. The tendency of the known wildness is not dangerous generally, but only under particular circumstances. Add to keeping, the attempt to break the horse; still no danger to the public is disclosed. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, according to common experience, makes this conduct dangerous, and therefore must take the risk of what harm may be done. /1/ On the other hand, if a man who was a good rider bought a horse with no appearance of vice and mounted it to ride home, there would be no such apparent danger as to make him answerable if the horse became unruly and did damage. /2/ Experience has measured the probabilities and draws the line between the two cases.
Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cases we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.
As to wrongs called malicious or intentional it is not necessary to mention the different classes a second time, and to find them a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct which is very generally at the risk of the speaker, because, as charges of the kind with which it deals are manifestly detrimental, the questions which practically arise for the most part concern the defence of truth or privilege. Deceit requires more, but still simple facts. Statements do not threaten the harm in question unless they are made under such circumstances as to naturally lead to action, and are made on insufficient grounds.
It is not, however, without significance, that certain wrongs are described in language importing intent. The harm in such cases is most frequently done intentionally, if intent to cause a certain harm is shown, there need to prove knowledge of facts which made it that harm would follow. Moreover, it is often much easier to prove intent directly, than to prove the knowledge which would make it unnecessary.
The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be to have chosen to cause that harm; and, on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election his part. Generally speaking, the choice will be found to have extended further than a simple act, and to co-ordinated acts into conduct. Very commonly it will have extended further still, to some external consequence. But generally, also, it will be found to have stopped short of the consequence complained of.
The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.
Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant. But it will be seen that the same result may be caused by a choice at different points. For instance, a man is sued for having caused his neighbor’s house to burn down. The simplest case is, that he actually intended to burn it down. If so, the length of the chain of physical causes intervening is of no importance, and has no bearing on the case.
But the choice may have stopped one step farther back. The defendant may have intended to light a fire on his own land, and may not have intended to burn the house. Then the nature of the intervening and concomitant physical causes becomes of the highest importance. The question will be the degree of danger attending the contemplated (and therefore chosen) effect of the defendant’s conduct under the circumstances known to him. If this was very plain and very great, as, for instance, if his conduct consisted in lighting stubble near a haystack close to the house, and if the manifest circumstances were that the house was of wood, the stubble very dry, and the wind in a dangerous quarter, the court would probably rule that he was liable. If the defendant lighted an ordinary fire in a fireplace in an adjoining house, having no knowledge that the fireplace was unsafely constructed, the court would probably rule that he was not liable. Midway, complicated and doubtful cases would go to the jury.
But the defendant may not even have intended to set the fire, and his conduct and intent may have been simply to fire a gun, or, remoter still, to walk across a room, in doing which he involuntarily upset a bottle of acid. So that cases may go to the jury by reason of the remoteness of the choice in the series of events, as well as because of the complexity of the circumstances attending the act or conduct. The difference is, perhaps, rather dramatic than substantial.
But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from them, and then goes on to determine what dangers attended either the conduct under the known circumstances, or its contemplated consequence under the contemplated circumstances.
Take a case like the glancing of Sir Walter Tyrrel’s arrow. If an expert marksman contemplated that the arrow would hit a certain person, cadit qucoestio. If he contemplated that it would glance in the direction of another person, but contemplated no more than that, in order to judge of his liability we must go to the end of his fore-sight, and, assuming the foreseen event to happen, consider what the manifest danger was then. But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time of shooting.
The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community.
But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril.
In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law.
But in some cases the defendant’s conduct may not have been morally wrong, and yet he may have chosen to inflict the harm, as where he has acted in fear of his life. In such cases he will be liable, or not, according as the law makes moral blameworthiness, within the limits explained above, the ground of liability, or deems it sufficient if the defendant has had reasonable warning of danger before acting. This distinction, however, is generally unimportant, and the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct.
The tendency of a given act to cause harm under given circumstances must be determined by experience. And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage of the division between law and morals. It does this in the domain of wrongs described as intentional, as systematically as in those styled unintentional or negligent.
But while the law is thus continually adding to its specific rules, it does not adopt the coarse and impolitic principle that a man acts always at his peril. On the contrary, its concrete rules, as well as the general questions addressed to the jury, show that the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct. And it is certainly arguable that even a fair chance to avoid bringing harm to pass is not sufficient to throw upon a person the peril of his conduct, unless, judged by average standards, he is also to blame for what he does.
By Oliver Wendell Holmes, Jr.
The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research. It has been so ably discussed that there is less room here elsewhere for essentially new analysis. But a short of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an analysis of their main characteristics cannot be omitted, and may present some new features.
It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, and they are of early date, no doubt. But there are other contracts still in use which, although they have in some degree put on modern forms, at least suggest the question whether they were not of equally early appearance.
One of these, the promissory oath, is no longer the foundation of any rights in private law. It is used, but as mainly as a solemnity connected with entering upon a public office. The judge swears that he will execute justice according to law, the juryman that he will find his verdict according to law and the evidence, the newly adopted citizen that he will bear true faith and allegiance to the government of his choice.
But there is another contract which plays a more important part. It may, perhaps, sound paradoxical to mention the contract of suretyship. Suretyship, nowadays, is only an accessory obligation, which presupposes a principal undertaking, and which, so far as the nature of the contract goes, is just like any other. But, as has been pointed out by Laferriere, /1/ and very likely by earlier writers, the surety of ancient law was the hostage, and the giving of hostages was by no means confined to international dealings.
In the old metrical romance of Huon of Bordeaux, Huon, having killed the son of Charlemagne, is required by the Emperor to perform various seeming impossibilities as the price of forgiveness. Huon starts upon the task, leaving twelve of his knights as hostages. /2/ He returns successful, but at first the Emperor is made to believe that his orders have been disobeyed. Thereupon Charlemagne cries out, “I summon hither the pledges for Huon. I will hang them, and they shall have no ransom.” /3/ So, when Huon is to fight a duel, by way of establishing the truth or falsehood of a charge against him, each party begins by producing some of his friends as hostages.
When hostages are given for a duel which is to determine the truth or falsehood of an accusation, the transaction is very near to the giving of similar security in the trial of a cause in court. This was in fact the usual course of the Germanic procedure. It will be remembered that the earliest appearance of law was as a substitute for the private feuds between families or clans. But while a defendant who did not peaceably submit to the jurisdiction of the court might be put outside the protection of the law, so that any man might kill him at sight, there was at first no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security. /1/
English customs which have been preserved to us are somewhat more advanced, but one of the noticeable features in their procedure is the giving of security at every step. All lawyers will remember a trace of this in the fiction of John Doe and Richard Roe, the plaintiff’s pledges to prosecute his action. But a more significant example is found in the rule repeated in many of the early laws, that a defendant accused of a wrong must either find security or go to prison. /2/ This security was the hostage of earlier days, and later, when the actions for punishment and for redress were separated from each other, became the bail of the criminal law. The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured.
One of Charlemagne’s additions to the Lex Salica speaks of a freeman who has committed himself to the power of another by way of surety. /3/ The very phrase is copied in the English laws of Henry I. /4/ We have seen what this meant in the story of Huon of Bordeaux. The Mirror of Justices /5/ says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment, but that King Henry I. confined Canute’s rule to mainprisors who were consenting to the fact.
As late as the reign of Edward III., Shard, an English judge, after stating the law as it still is, that bail are a prisoner’s keepers, and shall be charged if he escapes, observes, that some say that the bail shall be hanged in his place. /1/ This was the law in the analogous case of a jailer. /2/ The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony. They are bound “body for body,” /3/ and modern law-books find it necessary to state that this does not make them liable to the punishment of the principal offender if he does not appear, but only to a fine. /4/ The contract also differed from our modern ideas in the mode of execution. It was simply a solemn admission of liability in the presence of the officer authorized to take it. The signature of the bail was not necessary, /5/ and it was not requisite that the person bailed should bind himself as a party. /6/
But these peculiarities have been modified or done away with by statute, and I have dwelt upon the case, not so much as a special form of contract differing from all others as because the history of its origin shows one of the first appearances of contract in our law. It is to be traced to the gradual increase of faith in the honor of a hostage if the case calling for his surrender should arrive, and to the consequent relaxation of actual imprisonment. An illustration may be found in the parallel mode of dealing with the prisoner himself. His bail, to whom his body is supposed to be delivered, have a right to seize him at any time and anywhere, but he is allowed to go at large until surrendered. It will be noticed that this form of contract, like debt as dealt with by the Roman law of the Twelve Tables, and for the same motive, although by a different process, looked to the body of the contracting party as the satisfaction.
Debt is another and more popular candidate for the honors of priority. Since the time of Savigny, the first appearance of contract both in Roman and German law has often been attributed to the case of a sale by some accident remaining incomplete. The question does not seem to be of great philosophical significance. For to explain how mankind first learned to promise, we must go to metaphysics, and find out how it ever came to frame a future tense. The nature of the particular promise which was first enforced in a given system can hardly lead to any truth of general importance. But the history of the action of debt is instructive, although in a humbler way. It is necessary to know something about it in order to understand the enlightened rules which make up the law of contract at the present time.
In Glanvill’s treatise the action of debt is found already to be one of the well-known remedies. But the law of those days was still in a somewhat primitive state, and it will easily be imagined that a form of action which goes back as far as that was not founded on any very delicate discriminations. It was, as I shall try to show directly, simply the general form in which any money claim was collected, except unliquidated claims for damages by force, for which there was established the equally general remedy of trespass.
It has been thought that the action was adopted from the then more civilized procedure of the Roman law. A natural opinion, seeing that all the early English law-writers adopt their phraseology and classification from Rome. Still it seems much more probable that the action is of pure German descent. It has the features of the primitive procedure which is found upon the Continent, as described by Laband. /1/
The substance of the plaintiff’s claim as set forth in the writ of debt is that the defendant owes him so much and wrongfully withholds it. It does not matter, for a claim framed like that, how the defendant’s duty arises. It is not confined to contract. It is satisfied if there is a duty to pay on any ground. It states a mere conclusion of law, not the facts upon which that conclusion is based, and from which the liability arises. The old German complaint was, in like manner, “A owes me so much.”
It was characteristic of the German procedure that the defendant could meet that complaint by answering, in an equally general form, that he did not owe the plaintiff. The plaintiff had to do more than simply allege a debt, if he would prevent the defendant from escaping in that way. In England, if the plaintiff had not something to show for his debt, the defendant’s denial turned him out of court; and even if he had, he was liable to be defeated by the defendant’s swearing with some of his friends to back him that he owed nothing. The chief reason why debt was supplanted for centuries by a later remedy, assumpsit, was the survival of this relic of early days.
Finally, in England as in Germany, debt for the detention of money was the twin brother of the action brought for wrongfully withholding any other kind of chattel. The gist of the complaint in either case was the same.
It seems strange that this crude product of the infancy of law should have any importance for us at the present time. Yet whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source. Illustrations of this truth have been given already. The action of debt and the other actions of contract will furnish others. Debt throws most light upon the doctrine of consideration.
Our law does not enforce every promise which a man may make. Promises made as ninety-nine promises out of a hundred are, by word of mouth or simple writing, are not binding unless there is a consideration for them. That is, as it is commonly explained, unless the promisee has either conferred a benefit on the promisor, or incurred a detriment, as the inducement to the promise.
It has been thought that this rule was borrowed from Roman law by the Chancery, and, after undergoing some modification there, passed into the common law.
But this account of the matter is at least questionable. So far as the use of words goes, I am not aware that consideration is distinctly called cause before the reign of Elizabeth; in the earlier reports it always appears as quid pro quo. Its first appearance, so far as I know, is in Fleta’s account of the action of debt, /1/ and although I am inclined to believe that Fleta’s statement is not to be trusted, a careful consideration of the chronological order of the cases in the Year Books will show, I think, that the doctrine was fully developed in debt before any mention of it in equity can be found. One of the earliest references to what a promisor was to have for his undertaking was in the action of assumpsit. /1/ But the doctrine certainly did not originate there. The first mention of consideration in connection with equity which I have seen is in the form of quid pro quo, /2/ and occurs after the requirement had been thoroughly established in debt. /3/
The single fact that a consideration was never required for contracts under seal, unless Fleta is to be trusted against the great weight of nearly contemporaneous evidence, goes far to show that the rule cannot have originated on grounds of policy as a rule of substantive law. And conversely, the coincidence of the doctrine with a peculiar mode of procedure points very strongly to the probability that the peculiar requirement and the peculiar procedure were connected. It will throw light on the question to put together a few undisputed facts, and to consider what consequences naturally followed. It will therefore be desirable to examine the action of debt a little further. But it is only fair to admit, at the outset, that I offer the explanation which follows with great hesitation, and, I think, with a full appreciation of the objections which might be urged.
It was observed a moment ago, that, in order to recover against a defendant who denied his debt, the plaintiff had to show something for it; otherwise he was turned over to the limited jurisdiction of the spiritual tribunals. /4/ This requirement did not mean evidence in the modern sense. It meant simply that he must maintain his cause in one of the ways then recognized by law. These were three, the duel, a writing, and witnesses. The duel need not be discussed, as it soon ceased to be used in debt, and has no bearing on what I have to say. Trial by writing and by witnesses, on the other hand, must both be carefully studied. It will be convenient to consider the latter first and to find out what these witnesses were.
One thing we know at the start; they were not witnesses as we understand the term. They were not produced before a jury for examination and cross-examination, nor did their testimony depend for its effect on being believed by the court that heard it. Nowadays, a case is not decided by the evidence, but by a verdict, or a finding of facts, followed by a judgment. The oath of a witness has no effect unless it is believed. But in the time of Henry II. our trial by jury did not exist. When an oath was allowed to be sworn it had the same effect, whether it was believed or not. There was no provision for sifting it by a second body. In those cases where a trial by witnesses was possible, if the party called on to go forward could find a certain number of men who were willing to swear in a certain form, there was an end of the matter.
Now this seems like a more primitive way of establishing a debt than the production of the defendant’s written acknowledgement, and it is material to discover its origin.
The cases in which this mode of trial was used appear from the early books and reports to have been almost wholly confined to claims arising out of a sale or loan. And the question at once occurs, whether we are not upon traces of an institution which was already ancient when Glanvill wrote. For centuries before the Conquest Anglo-Saxon law /1/ had required the election of a certain number of official witnesses, two or three of whom were to be called in to every bargain of sale. The object for which these witnesses were established is not commonly supposed to have been the proof of debts. They go back to a time when theft and similar offences were the chief ground of litigation, and the purpose for which they were appointed was to afford a means of deciding whether a person charged with having stolen property had come by it rightfully or not. A defendant could clear himself of the felony by their oath that he had bought or received the thing openly in the way appointed by law.
Having been present at the bargain, the witnesses were able to swear to what they had seen and heard, if any question arose between the parties. Accordingly, their use was not confined to disposing of a charge of felony. But that particular service identifies the transaction witnesses of the Saxon period. Now we know that the use of these witnesses did not at once disappear under Norman influence. They are found with their old function in the laws of William the Conqueror. /1/ The language of Glanvill seems to prove that they were still known under Henry II. He says that, if a purchaser cannot summon in the man from whom he bought, to warrant the property to him and defend the suit, (for if he does, the peril is shifted to the seller,) then if the purchaser has sufficient proof of his having lawfully bought the thing, de legittimo marcatu suo, it will clear him of felony. But if he have not sufficient suit, he will be in danger. /2/ This is the law of William over again. It follows that purchasers still used the transaction witnesses.
But Glanvill also seems to admit the use of witness to establish debts. /1/ As the transaction witnesses were formerly available for this purpose, I see no reason to doubt that they still were, and that he is speaking of them here also. /2/ Moreover, for a long time after Henry II., whenever an action was brought for a debt of which there was no written evidence, the plaintiff, when asked what he had to show for it, always answered “good suit,” and tendered his witnesses, who were sometimes examined by the court. /3/ I think it is not straining the evidence to infer that the “good suit” of the later reports was the descendant of the Saxon transaction witnesses, as it has been shown that Glanvill’s secta was. /4/
Assuming this step in the argument to have been taken, it will be well to recall again for a moment the original nature of the witness oath. It was confined to facts within the witnesses’ knowledge by sight and hearing. But as the purposes for which witnesses were provided only required their presence when property changed hands, the principal case in which they could be of service between the parties to a bargain was when a debt was claimed by reason of the delivery of property. The purpose did not extend to agreements which were executory on both sides, because there no question of theft could arise. And Glanvill shows that in his time the King’s Court did not enforce such agreements. /1/ Now, if the oath of the secta could only be used to establish a debt where the transaction witnesses could have sworn, it will be seen, readily enough, how an accident of procedure may have led to a most important rule of substantive law.
The rule that witnesses could only swear to facts within their knowledge, coupled with the accident that these witnesses were not used in transactions which might create a debt, except for a particular fact, namely, the delivery of property, together with the further accident that this delivery was quid pro quo, was equivalent to the rule that, when a debt was proved by witnesses there must be quid pro quo. But these debts proved by witnesses, instead of by deed are what we call simple contract debts, and thus beginning with debt, and subsequently extending itself to other contracts, is established our peculiar and most important doctrine that every simple contract must have a consideration. This was never the law as to debts or contracts proved in the usual way by the defendant’s seal, and the fact that it applied only to obligations which were formerly established by a procedure of limited use, goes far to show that the connection with procedure was not accidental.
The mode of proof soon changed, but as late as the reign of Queen Elizabeth we find a trace of this original connection. It is said, “But the common law requires that there should be a new cause (i. e. consideration), whereof the country may have intelligence or knowledge for the trial of it, if need be, so that it is necessary for the Public-weal.” /1/ Lord Mansfield showed his intuition of the historical grounds of our law when he said, “I take it that the ancient notion about the want of consideration was for the sake of evidence only; for when it is reduced into writing, as in covenants, specialties, bonds, etc., there was no objection to the want of consideration.” /2/
If it should be objected that the preceding argument is necessarily confined to debt, whereas the requirement of consideration applies equally to all simple contracts, the answer is, that in all probability the rule originated with debt, and spread from debt to other contracts.
But, again, it may be asked whether there were no other contracts proved by witness except those which have been mentioned. Were there no contracts proved in that way to which the accidental consideration was wanting? To this also there is an easy answer. The contracts enforced by the civil courts, even as late as Henry II., were few and simple. The witness procedure was no doubt broad enough for all the contracts which were made in early times. Besides those of sale, loan, and the like, which have been mentioned, I find but two contractual obligations. These were the warranties accompanying a sale and suretyship which was referred to at the beginning of the Lecture. Of the former, warranty of title was rather regarded as an obligation raised by the law out of the relation of buyer and seller than as a contract. Other express warranties were matters within the knowledge of the transaction witnesses, and were sworn to by them in Saxon times. /1/
But in the Norman period warranty is very little heard of, except with regard to land, and then it was decided by the duel. It so wholly disappeared, except where it was embodied in a deed, that it can have had no influence upon the law of consideration. I shall therefore assume, without more detail, that it does not bear upon the case./1/
Then as to the pledge or surety. He no longer paid with his body, unless in very exceptional cases, but his liability was translated into money, and enforced in an action of debt. This time-honored contract, like the other debts of Glanvill’s time, could be established by witness without a writing, /2/ and in this case there was not such a consideration, such a benefit to the promisor, as the law required when the doctrine was first enunciated. But this also is unimportant, because his liability on the oath of witness came to an end, as well as that of the warrantor, before the foundations were laid for the rule which I am seeking to explain. A writing soon came to be required, as will be seen in a moment.
The result so far is, that the only action of contract in Glanvill’s time was debt, that the only debts recovered without writing were those which have been described, and that the only one of these for which there was not quid pro quo ceased to be recoverable in that way by the reign of Edward III.
But great changes were beginning in the reign of Henry II. More various and complex contracts soon came to be enforced. It may be asked, Why was not the scope of the witness oath enlarged, or, if any better proof were forthcoming, why was not the secta done away with, and other oral testimony admitted? In any event, what can the law of Henry II.’s time have to do with consideration, which not heard of until centuries later?
It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better. The only weak point about a writing is the means of identifying it as the defendant’s, and this difficulty disappeared as soon as the use of seals became common. This had more or less taken place in Glanvill’s time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent’s seal. /1/ The oath of the secta could always be successfully met by wager of law, /2/ that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff. But a writing proved to be the defendant’s could not be contradicted. /1/ For if a man said he was bound, he was bound. There was no question of consideration, because there was as yet no such doctrine. He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved. Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof by writing to proof by the old-fashioned witness oath. But there were other equally good reasons why the latter should not be extended beyond its ancient limits. The transaction witnesses were losing their statutory and official character. Already in Glanvill’s time the usual modes of proving a debt were by the duel or by writing. /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party, and he says that their oath raises but a slight presumption. /3/
Moreover, a new mode of trial was growing up, which, although it was not made use of in these cases /4/ for a good while, must have tended to diminish the estimate set on the witness oath by contrast. This was the beginning of our trial by jury. It was at first an inquest of the neighbors most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were selected by an officer of the court instead of by the interested party, and were intended to be impartial. /1/ Soon witnesses were summoned before them, not, as of old, to the case by their oath, but to aid the inquest to find a verdict by their testimony. With the advent of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear and leave no traces.
Taking into account the conservatism of the English law, and the fact that, before deeds came in, the only debts for which there had been a remedy were debts proved by the transaction witnesses, it would not have been a surprise to find the tender of suit persisting in those cases. But there was another reason still more imperative. The defence in debt where there was no deed was by wager of law. /2/ A section of Magna Charta was interpreted to prohibit a man’s being put to his law on the plaintiff’s own statement without good witness. /3/ Hence, the statute required witness—that is, the secta—in every case of debt where the plaintiff did not rely upon a writing. Thus it happened that suit continued to be tendered in those cases where it had been of old, /4/ and as the defendant, if he did not admit the debt in such cases, always waged his law, it was long before the inquest got much foothold.
To establish a debt which arose merely by way of promise or acknowledgment, and for which there had formerly been no mode of trial provided, you must have a writing, the new form of proof which introduced it into the law. The rule was laid down, “by parol the party is not obliged.” /1/ But the old debts were not conceived of as raised by a promise. /2/ They were a “duty” springing from the plaintiff’s receipt of property, a fact which could be seen and sworn to. In these cases the old law maintained and even extended itself a little by strict analogy.
But the undertaking of a surety, in whatever form it was clothed, did not really arise out of any such fact. It had become of the same nature as other promises, and it was soon doubted whether it should not be proved by the same evidence. /3/ By the reign of Edward III., it was settled that a deed was necessary, /4/ except where the customs of particular cities had kept the old law in force. /5/
This reign may be taken as representing the time when the divisions and rules of procedure were established which have lasted until the present day. It is therefore worth while to repeat and sum up the condition of the law at that time.
It was still necessary that the secta should be tendered in every action of debt for which no writing was produced. For this, as well as for the other reasons which have been mentioned, the sphere of such actions was not materially enlarged beyond those cases which had formerly been established by the witness-oath. As suretyship was no longer one of these, they became strictly limited to cases in which the debt arose from the receipt of a quid pro quo. Moreover there was no other action of contract which could be maintained without a writing. New species of contracts were now enforced by an action of covenant, but there a deed was always necessary. At the same time the secta had shrunk to a form, although it was still argued that its function was more important in contract than elsewhere. It could no longer be examined before the court. /1/ It was a mere survival, and the transaction witness had ceased to be an institution. Hence, the necessity of tendering the witness oath did not fix the limit of debt upon simple contract except by tradition, and it is not surprising to find that the action was slightly extended by analogy from its scope in Glanvill’s time.
But debt remained substantially at the point which I have indicated, and no new action available for simple contracts was introduced for a century. In the mean time the inversion which I have explained took place, and what was an accident of procedure had become a doctrine of substantive law. The change was easy when the debts which could be enforced without deed all sprung from a benefit to the debtor.
The influence of the Roman law, no doubt, aided in bringing about this result. It will be remembered that in the reign of Henry II. most simple contracts and debts for which there was not the evidence of deed or witness were left to be enforced by the ecclesiastical courts, so far as their jurisdiction extended. /2/ Perhaps it was this circumstance which led Glanvill and his successors to apply the terminology of the civilians to common-law debts. But whether he borrowed it from the ecclesiastical courts, or went directly to the fountain-head, certain it is that Glanvill makes use of the classification and technical language of the Corpus Juris throughout his tenth book.
There were certain special contracts in the Roman system called real, which bound the contractor either to return a certain thing put into his hands by the contractee, as in a case of lease or loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent. This class did not correspond, except in the most superficial way, with the common-law debts. But Glanvill adopted the nomenclature, and later writers began to draw conclusions from it. The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors’ use of the Roman law, /1/ says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return. /2/
If Fleta had confined his statement to debts by simple contract, it might well have been suggested by the existing state of the law. But as he also required a writing and a seal, in addition to the matter given or promised in return, the doctrine laid down by him can hardly have prevailed at any time. It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton.
It only remains to trace the gradual appearance of consideration in the decisions. A case of the reign of Edward III. /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor’s request. It also speaks of the debt or “duty” in that case as arising by cause of payments. Somewhat similar language is used in the next reign. /2/ So, in the twelfth year of Henry IV., /3/ there is an approach to the thought: “If money is promised to a man for making a release, and he makes the release, he will have a good action of debt in the matter.” In the next reign /4/ it was decided that, in such a case, the plaintiff could not recover without having executed the release, which is explained by the editor on the ground that ex nudo pacto non oritur actio. But the most important fact is, that from Edward I. to Henry VI. we find no case where a debt was recovered, unless a consideration had in fact been received.
Another fact to be noticed is, that since Edward III. debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation. /5/ Hence, when consideration was required as such, it was required in contracts not under seal, whether debts or not. Under Henry VI. quid pro quo became a necessity in all such contracts. In the third year of that reign /6/ it was objected to au action upon an assumpsit for not building a mill, that it was not shown what the defendant was to have for doing it. In the thirty-sixth year of the same reign (A.D. 1459), the doctrine appears full grown, and is assumed to be familiar. /1/
The case turned upon a question which was debated for centuries before it was settled, whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant’s daughter. But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts, it now touched the purely mundane doubt whether the defendant had had quid pro quo.
It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant, namely, a delivery of the things sold or the money lent to him. Such cases, also, offer the most obvious form of consideration. The natural question is, what the promisor was to have for his promise. /2/ It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee. It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down. In the case which I have mentioned some of the judges were inclined to hold that getting rid of his daughter was a sufficient benefit to the defendant to make him a debtor for the money which he promised; and there was even some hint of the opinion, that marrying the lady was a consideration, because it was a detriment to the promisee. /1/ But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt. /2/
So it was held that a service rendered to a third person upon the defendant’s request and promise of a reward would not be enough, /3/ although not without strong opinions to the contrary, and for a time the precedents were settled. It became established law that an action of debt would only lie upon a consideration actually received by and enuring to the benefit of the debtor.
It was, however, no peculiarity of either the action or contract of debt which led to this view, but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI. and Elizabeth. The theory the same in assumpsit, /4/ and in equity. /5/ Wherever consideration was mentioned, it was always as quid pro quo, as what the contractor was to have for his contract.
Moreover, before consideration was ever heard of, debt was the time-honored remedy on every obligation to pay money enforced by law, except the liability to damages for a wrong. /6/ It has been shown already that a surety could be sued in debt until the time of Edward III. without a writing, yet a surety receives no benefit from the dealing with his principal. For instance, if a man sells corn to A, and B says, “I will pay if A does not,” the sale does B no good so far as appears by the terms of the bargain. For this reason, debt cannot now be maintained against a surety in such a case.
It was not always so. It is not so to this day if there is an obligation under seal. In that case, it does not matter how the obligation arose, or whether there was any consideration for it or not. But a writing was a more general way of establishing a debt in Glanvill’s time than witness, and it is absurd to determine the scope of the action by considering only a single class of debts enforced by it. Moreover, a writing for a long time was only another, although more conclusive, mode of proof. The foundation of the action was the same, however it was proved. This was a duty or “duity” /1/ to the plaintiff, in other words, that money was due him, no matter how, as any one may see by reading the earlier Year Books. Hence it was, that debt lay equally upon a judgment, /2/ which established such a duty by matter of record, or upon the defendant’s admission recorded in like manner. /3/
To sum up, the action of debt has passed through three stages. At first, it was the only remedy to recover money due, except when the liability was simply to pay damages for a wrongful act. It was closely akin to—indeed it was but a branch of—the action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff. /4/ If there was a contract to pay money, the only question was how you could prove it. Any such contract, which could be proved by any of the means known to early law, constituted a debt. There was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received.
The second stage was when the doctrine of consideration was introduced in its earlier form of a benefit to the promisor. This applied to all contracts not under seal while it prevailed, but it was established while debt was the only action for money payable by such contracts. The precedents are, for the most part, precedents in debt.
The third stage was reached when a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee. This change was a change in substantive law, and logically it should have been applied throughout. But it arose in another and later form of action, under circumstances peculiarly connected with that action, as will be explained hereafter. The result was that the new doctrine prevailed in the new action, and the old in the old, and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt. That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor. With regard to obligations arising in any other way, it has remained unchanged.
I must now devote a few words to the effect upon our law of the other mode of proof which I have mentioned. I mean charters. A charter was simply a writing. As few could write, most people had to authenticate a document in some other way, for instance, by making their mark. This was, in fact, the universal practice in England until the introduction of Norman customs. /1/ With them seals came in. But as late as Henry II. they were said by the Chief Justice of England to belong properly only to kings and to very great men. /2/ I know no ground for thinking that an authentic charter had any less effect at that time when not under seal than when it was sealed. /3/ It was only evidence either way, and is called so in many of the early cases. /4/ It could be waived, and suit tendered in its place. /5/ Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. /6/
But when seals came into use they obviously made the evidence of the charter better, in so far as the seal was more difficult to forge than a stroke of the pen. Seals acquired such importance, that, for a time, a man was bound by his seal, although it was affixed without his consent. /7/ At last a seal came to be required, in order that a charter should have its ancient effect. /8/
A covenant or contract under seal was no longer a promise well proved; it was a promise of a distinct nature, for which a distinct form of action came to be provided. /1/ I have shown how the requirement of consideration became a rule of substantive law, and also why it never had any foothold in the domain of covenants. The exception of covenants from the requirement became a rule of substantive law also. The man who had set his hand to a charter, from being bound because he had consented to be, and because there was a writing to prove it, /2/ was now held by force of the seal and by deed alone as distinguished from all other writings. And to maintain the integrity of an inadequate theory, a seal was said to a consideration.
Nowadays, it is sometimes thought more philosophical to say that a covenant is a formal contract, which survives alongside of the ordinary consensual contract, just as happened in the Roman law. But this is not a very instructive way of putting it either. In one sense, everything is form which the law requires in order to make a promise binding over and above the mere expression of the promisor’s will. Consideration is a form as much as a seal. The only difference is, that one form is of modern introduction, and has a foundation in good sense, or at least in with our common habits of thought, so that we do not notice it, whereas the other is a survival from an older condition of the law, and is less manifestly sensible, or less familiar. I may add, that, under the influence of the latter consideration, the law of covenants is breaking down. In many States it is held that a mere scroll or flourish of the pen is a sufficient seal. From this it is a short step to abolish the distinction between sealed and unsealed instruments altogether, and this has been done in some of the Western States.
While covenants survive in a somewhat weak old age, and debt has disappeared, leaving a vaguely disturbing influence behind it, the whole modern law of contract has grown up through the medium of the action of Assumpsit, which must now be explained.
After the Norman conquest all ordinary actions were begun by a writ issuing from the king, and ordering the defendant to be summoned before the court to answer the plaintiff. These writs were issued as a matter of course, in the various well-known actions from which they took their names. There were writs of debt and of covenant; there were writs of trespass for forcible injuries to the plaintiff’s person, or to property in his possession, and so on. But these writs were only issued for the actions which were known to the law, and without a writ the court had no authority to try a case. In the time of Edward I. there were but few of such actions. The cases in which you could recover money of another fell into a small number of groups, for each of which there was a particular form of suing and stating your claim.
These forms had ceased to be adequate. Thus there were many cases which did not exactly fall within the definition of a trespass, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I., c. 24, authorized the office from which the old writs issued to frame new ones in cases similar in principle to those for which writs were found, and requiring like remedy, but not exactly falling within the scope of the writs already in use.
Thus writs of trespass on the case began to make their appearance; that is, writs stating a ground of complaint to a trespass, but not quite amounting to a trespass as it had been sued for in the older precedents. To take an instance which is substantially one of the earliest cases, suppose that a man left a horse with a blacksmith to be shod, and he negligently drove a nail into the horse’s foot. It might be that the owner of the horse could not have one of the old writs, because the horse was not in his possession when the damage was done. A strict trespass property could only be committed against the person in possession of it. It could not be committed by one who was in possession himself. /1/ But as laming the horse was equally a wrong, whether the owner held the horse by the bridle or left it with the smith, and as the wrong was closely analogous to a trespass, although not one, the law gave the owner a writ of trespass on the case. /2/
An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself. No contract was stated, and none was necessary on principle. But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract. Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement.
It will be well to examine some of the earliest cases in which an undertaking (assumpsit) was alleged. The first reported in the books is of the reign of Edward III. /3/ The plaintiff alleged that the defendant undertook to carry the plaintiff’s horse safely across the Humber, but surcharged the boat, by reason of which the horse perished. It was objected that the action should have been either covenant for breach of the agreement, or else trespass. But it was answered that the defendant committed a wrongful act when he surcharged the boat, and the objection was overruled. This case again, although an undertaking was stated, hardly introduced a new principle. The force did not proceed directly from the defendant, to be sure, but it was brought to bear by the combination of his overloading and then pushing into the stream.
The next case is of the same reign, and goes further. /1/ The writ set forth that the defendant undertook to cure the plaintiff’s horse of sickness (manucepit equum praedicti W. de infirmirate), and did his work so negligently that the horse died. This differs from the case of laming the horse with a nail in two respects. It does not charge any forcible act, nor indeed any act at all, but a mere omission. On the other hand, it states an undertaking, which the other did not. The defendant at once objected that this was an action for a breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract. Then, said the defendant, you might have had trespass. But the plaintiff answered that by saying that the horse was not killed by force, but died per def. de sa cure; and upon this argument the writ was adjudged good, Thorpe, J. saying that he had seen a man indicted for killing a patient by want of care (default in curing), whom he had undertaken to cure.
Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?
I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another’s house, and by his unskilfulness spoiled his employer’s timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned “that the thing had been commenced and then by not done, it would have been otherwise.” /3/
I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff’s person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe’s reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.
The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor’s property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission.
The same reasoning applies to civil liability. A carpenter need not go to work upon another man’s house at all, but if he accepts the other’s confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. So in the case of the farrier, when he had taken charge of the horse, he could not stop at the critical moment and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it into the stream in that condition occasioned the loss, and he was answerable for it.
In the foregoing cases the duty was independent of contract, or at least was so regarded by the judges who decided them, and stood on the general rules applied to human conduct even by the criminal law. The immediate occasion of the damage complained of may have been a mere omission letting in the operation of natural forces. But if you connect it, as it was connected in fact, with the previous dealings, you have a course of action and conduct which, taken as a whole, has caused or occasioned the harm.
The objection may be urged, to be sure, that there is a considerable step from holding a man liable for the consequences of his acts which he might have prevented, to making him answerable for not having interfered with the course of nature when he neither set it in motion nor opened the door for it to do harm, and that there is just that difference between making a hole in a roof and leaving it open, or cutting the cord and letting it bleed, on the one side, and the case of a farrier who receives a sick horse and omits proper precautions, on the other. /1/
There seem to be two answers to this. First, it is not clear that such a distinction was adverted to by the court which decided the case which I have mentioned. It was alleged that the defendant performed his cure so negligently that the horse died. It might not have occurred to the judges that the defendant’s conduct possibly went no further than the omission of a series of beneficial measures. It was probably assumed to have consisted of a combination of acts and neglects, which taken as a whole amounted to an improper dealing with the thing.
In the next place, it is doubtful whether the distinction is a sound one on practical grounds. It may well be that, so long as one allows a trust to be reposed in him, he is bound to use such precautions as are known to him, although he has made no contract, and is at liberty to renounce the trust in any reasonable manner. This view derives some support from the issue on which the parties went to trial, which was that the defendant performed the cure as well as he knew how, without this, that the horse died for default of his care (cure?). /1/
But it cannot be denied that the allegation of an undertaking conveyed the idea of a promise, as well as that of an entering upon the business in hand. Indeed, the latter element is sufficiently conveyed, perhaps, without it. It may be asked, therefore, whether the promise did not count for something in raising a duty to act. So far as this involves the consequence that the action was in fact for the breach of a contract, the answer has been given already, and is sustained by too great a weight of authority to be doubted. /2/ To bind the defendant by a contract, an instrument under seal was essential. As has been shown, already, even the ancient sphere of debt had been limited by this requirement, and in the time of Edward III. a deed was necessary even to bind a surety. It was so a fortiori to introduce a liability upon promises not enforced by the ancient law. Nevertheless, the suggestion was made at an early date, that an action on the case for damage by negligence, that is, by an omission of proper precautions, alleging an undertaking by way of inducement, was in fact an action of contract.
Five years after the action for negligence in curing a horse, which has been stated, an action was brought /1/ in form against a surgeon, alleging that he undertook to cure the plaintiff’s hand, and that by his negligence the hand was maimed. There was, however, this difference, that it was set forth that the plaintiff’s hand had been wounded by one T.B. And hence it appeared that, however much the bad treatment may have aggravated matters, the maiming was properly attributable to T.B., and that the plaintiff had an action against him. This may have led the defendant to adopt the course he did, because he felt uncertain whether any action of tort would lie. He took issue on the undertaking, assuming that to be essential to the plaintiff’s case, and then objected that the writ did not show the place of the undertaking, and hence was bad, because it did not show whence the inquest should be summoned to speak to that point. The writ was adjudged bad on that ground, which seems as if the court sanctioned the defendant’s view. Indeed, one of the judges called it an action of covenant, and said that “of necessity it was maintainable without specialty, because for so small a matter a man cannot always have a clerk at hand to write a deed” (pur faire especially). At the same time the earlier cases which  have been mentioned were cited and relied on, and it is evident that the court was not prepared to go beyond them, or to hold that the action could be maintained on its merits apart from the technical objection. In another connection it seems to have considered the action from the point of view of trespass. /1/
Whatever questions this case may suggest, the class of actions which alleged an undertaking on the part of the defendant continued to be dealt with as actions of tort for a long time after Edward III. The liability was limited to damage to person or property arising after the defendant had entered upon the employment. And it was mainly through reasoning drawn from the law of tort that it was afterwards extended, as will be seen.
At the beginning of the reign of Henry VI. it was probably still the law that the action would not lie for a simple failure to keep a promise. /2/ But it had been several times suggested, as has been shown, that it would be otherwise if the omission or neglect occurred in the course of performance, and the defendant’s conduct had been followed by physical damage. /3/ This suggestion took its most striking form in the early years of Henry VI., when the case of the carpenter leaving a hole in the roof was put. /4/ When the courts had got as far as this, it was easy to go one step farther, and to allow the same effect to an omission at any stage, followed by similar damage.
What is the difference in principle, it was asked, a few years later, /1/ between the cases where it is admitted that the action will lie, and that of a smith who undertakes to shoe a horse and does not, by reason of which the horse goes lame,—or that of a lawyer, who undertakes to argue your case, and, after thus inducing you to rely upon him, neglects to be present, so that you lose it? It was said that in the earlier instances the duty was dependent on or accessory to the covenant, and that, if the action would lie on the accessory matter, it would lie on the principal. /2/ It was held on demurrer that an action would lie for not procuring certain releases which the defendant had undertaken to get.
Five years later another case /3/ came up, which was very like that of the farrier in the reign of Edward III. It was alleged that the defendant undertook to cure the plaintiff’s horse, and applied medicine so negligently that the horse died. In this, as in the earlier case, the issue was taken on the assumpsit. And now the difference between an omission and an act was clearly stated, the declaration was held not to mean necessarily anything more than an omission, and it was said that but for the undertaking the defendant would have owed no duty to act. Hence the allegation of the defendant’s promise was material, and an issue could properly be taken on it.
This decision distinctly separated from the mass of actions on the case a special class arising out of a promise as the source of the defendant’s obligation, and it was only a matter of time for that class to become a new and distinct action of contract. Had this change taken place at once, the doctrine of consideration, which was first definitely enunciated about the same time, would no doubt have been applied, and a quid pro quo would have been required for the undertaking. /1/ But the notion of tort was not at once abandoned. The law was laid down at the beginning of the reign of Henry VII., in accordance with the earlier decisions, and it was said that the action would not lie for a failure to keep a promise, but only for negligence after the defendant had entered upon his undertaking. /2/
So far as the action did not exceed the true limits of tort, it was immaterial whether there was a consideration for the undertaking or not. But when the mistake was made of supposing that all cases, whether proper torts or not, in which an assumpsit was alleged, were equally founded on the promise, one of two erroneous conclusions was naturally thought to follow. Either no assumpsit needed any quid pro quo, /3/ as there was clearly none in the older precedents, (they being cases of pure tort,) or else those precedents were wrong, and a quid pro quo should be alleged in every case. It was long recognized with more or less understanding of the true limit, that, in cases where the gist of the action was negligent damage to property, a consideration was not necessary. /4/ And there are some traces of the notion that it was always superfluous, as late as Charles I.
In a case of that reign, the defendant retained an attorney to act in a suit for a third person, and promised to pay him all his fees and expenses. The attorney rendered the service, and then brought debt. It was objected that debt did not lie, because there was no contract between the parties, and the defendant had not any quid pro quo. The court adopted the argument, and said that there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit. /1/
It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt. It was settled that assumpsit would lie for a mere omission or nonfeasance. The cases which have been mentioned of the reign of Henry VI. were followed by others in the latter years of Henry VII., /3/ and it was never again doubted. An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III. If so, a consideration was necessary. /4/ Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth’s time. But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary, made it possible to hold considerations sufficient which had been in debt.
Another circumstance may not have been without its influence. It would seem that, in the period when assumpsit  was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense. The word “cause” was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. /1/ It was used in the same sense in the action of assumpsit. /2/ In the last cited report, although the principal case only laid down a doctrine that would be followed to-day, there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request, but without any promise of any kind, would support a subsequent promise to pay for it. /3/ Starting from this authority and the word “cause,” the conclusion was soon reached that there was a great difference between a contract and an assumpsit; and that, whereas in contracts “everything which is requisite ought to concur and meet together, viz. the consideration of the one side, and the sale or the promise on the other side,… to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made.” /4/
Thus, where the defendant retained the plaintiff to be to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. /1/ The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be liable in debt. /2/ There was the same remedy on a promise in consideration that the plaintiff would marry the defendant’s daughter. /3/ The illusion that assumpsit thus extended did not mean contract, could not be kept up. In view of this admission and of the ancient precedents, the law oscillated for a time in the direction of reward as the true essence of consideration. /4/ But the other view prevailed, and thus, in fact, made a change in the substantive law. A simple contract, to be recognized as binding by the courts of Henry VI., must have been based upon a benefit to the debtor; now a promise might be enforced in consideration of a detriment to the promisee. But in the true archaic spirit the doctrine was not separated or distinguished from the remedy which introduced it, and thus debt in modern times has presented the altered appearance of a duty limited to cases where the consideration was of a special sort.
The later fortunes of assumpsit can be briefly told. It introduced bilateral contracts, because a promise was a detriment, and therefore a sufficient consideration for another promise. It supplanted debt, because the existence of the duty to pay was sufficient consideration for a promise to pay, or rather because, before a consideration was required, and as soon as assumpsit would lie for a nonfeasance, this action was used to avoid the defendant’s wager of law. It vastly extended the number of actionable contracts, which had formerly been confined to debts and covenants, whereas nearly any promise could be sued in assumpsit; and it introduced a theory which has had great influence on modern law,—that all the liabilities of a bailee are founded on contract. /1/ Whether the prominence which was thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence which it soon acquired in political speculation, it is beyond my province to inquire.
By George Neilson.
THE claims of the legal profession to culture were cleverly belittled by Burns, when he made the New Brig of Ayr wax sarcastic over the town councillors of the burgh:—
“Men wha grew wise priggin owre hops an’ raisins,
Or gathered lib’ral views in Bonds and Seisins.”
Bonds and seisins are certainly not the happiest intellectual feeding ground. “I assure you,” said John Riddell, a great peerage antiquary, “that to spend one’s time in seeking for a name or a date in a bit of crabbed old writing does not improve the reasoning powers.” Riddell was a keen critic of Cosmo Innes, who subsequently had the happiness of passing the comment upon Riddell’s observation that “perhaps it is not in reasoning that Mr. Riddell excels.” Yet the annals of the law shew many splendid examples of the union of close textual study of manuscript, with an enlarged outlook on first principles and with keen critical insight. Perhaps Madox was a more permanently serviceable scholar than Selden. One can see from Coke’s margins, his infinite superiority to Bacon in exact knowledge at first hand of older English law. But when all is said, we could have done much better without Coke and Madox than without Bacon or Selden. It is delightful to be able to appeal to Chaucer for perhaps the most emphatic compliment to law, in respect to its capacity for literature, that it has ever received. Amongst all the Canterbury pilgrims, there was no weightier personage than the Man of Law:—
“Nowher so bisy a man as he ther nas,
And yet he semed bisier than he was.
In termes hadde he caas and domes alle
That from the tyme of King William were falle,
Therto he coude endyte and make a thing
Ther could no wight pinche at his wryting,
And every statut coude he pleyn by rote.”
Yet it was this learned and successful counsel, alone of the party, who knew the poet’s works through and through, and had the list of them at his finger-ends. Good Master Chaucer for this touch we offer hearty thanks! Was it in Herrick’s mind when he penned his fine tribute to Selden?
“I, who have favoured many, come to be
Graced, now at last, or glorified by thee.”
Wits and poets have had many hard things to say in jest and in earnest about the legal profession and its work. Herrick bracketed law and lawyers with diseases and doctors, in a fashion hinting that the relation of cause and effect existed between both pairs:—
“As many laws and lawyers do express,
Nought but a kingdom’s ill-affectedness.
Even so those streets and houses do but show
Store of diseases where physicians flow.”
It was an old story this linking of the practitioners of law and medicine in one yoke of abuse. The reason given for both categories in early satire is sufficiently curious. It was because they took fees! Walter Map declared the Cistercian creed to be that no man could serve God without mammon. Ancient satire equally objected to the service of man, either legally or medically, under these conditions. “The Romaunt of the Rose” has the traditional refrain of other strictures in verse, when it declares that
“Physiciens and advocates,
Gon right by the same yates,yates, gates
They selle hir science for winning.winning, gain
For they nil in no maner greeno kind of good will
Do right nought for charitee.”
The same idea, precisely, finds voice in the poem attributed to Walter Map, wherein the doctor and the lawyer come together under the lash, because no hope can be based upon either of them unless there be money in the case. “But if the marvellous man see coin, the very worst disease is quite curable, the very falsest cause just, praiseworthy, pious, true, and pleasing to God.” Perhaps these ancient sarcasms were keener on the leech than the lawyer. “The Romaunt of the Rose” goes so far as to say that if the physicians had their way of it,
“Everiche man shulde be seke,
And though they dye, they set not a leke
After: whan they the gold have take
Ful litel care for hem they make.
They wolde that fourty were seke at onis!
Ye, two hundred in flesh and bonis!
And yit two thousand as I gesse
For to encresen her richesse.”
No doubt the men of medicine would have been much more vulnerable on another line, for it was no satirist but a learned medical professor, Arnauld de Villeneuve, who, in the beginning of the fourteenth century, advised his students as follows:—“The seventh precaution,” said he, “is of a general application. Suppose that you cannot understand the case of your patient, say to him with assurance that he hath an obstruction of the liver.” No legal professor surely was ever guilty of the indiscretion of saying such a thing as this!
The ineradicable public prejudice against legal charges as flagrantly exorbitant is only a modified form of an older idea exemplified above that lawyers should have no fees at all. And as to this day the plain man has never fully reconciled himself to the doctrine that the lawyer is only an agent, and not called upon to sit in the first instance in judgment on his client, so in the past the professional defence of a criminal appeared a very venal transaction.
“Thow I have a man i-slawe,
And forfetyd the kynges lawe
I sal fyndyn a man of lawe
Wyl takyn myn peny and let me goo.”
How reprehensible a thing to take fees was long reckoned admits of curious illustration. “Before the end of the thirteenth century,” says that never-failing authority, Pollock and Maitland’s “History of English Law,” “there already exists a legal profession, a class of men who make money by representing litigants before the courts and by giving legal advice. The evolution of this class has been slow, for it has been withstood by certain ancient principles.” Amongst these retarding influences lay the half-religious scruple about the propriety of payment—men as usual swallowing the camel first and straining at the gnat afterwards. Of course the subject had to be illuminated by monkish tales and death-bed repentances. There was, according to the Carlisle friar who penned the “The Chronicle of Lanercost,”—writing under the year 1288,—a young clerk in the diocese of Glasgow, whose mind “was given rather to the court of the rich than to the cure of souls. He was called Adam Urri, and was laically learned in the laic laws, disregarding the commands of God against the Praecorialia [so in the printed text, but, query, Praetorialia?] of Ulpian. He used the statutes of the Emperor in litigating causes, for payment of money. But when he had grown old and famous in this his wickedness, and was striving by his astuteness to entangle the affairs of a poor little widow, the divine mercy laid hold on him, assailing his body with sudden infirmity, and bringing his mind to plead (enarraret) more for another life.” Condemning utterly the lawyer’s court, he turned over a new leaf, predicted the day of his own death, and died punctually conform to the prophecy, leaving an example unctuously used by the friar to teach future generations “how wide was the gulf betwixt the service of God and the vanity of this world.” We shall not be far wrong in regarding, as of more historic interest, the indication of the immorality of fees, and the important reference to Ulpian as an authority in the forum causidicorum of thirteenth century Scotland.
Amongst the amiable conceptions of the middle age was the notion that the Evil One often manifested a particular zeal against sin. He was regarded with a different eye from that with which we regard him, and he rewarded faith with actual appearances such as only spiritualists can now-a-days command. Some of them were not very engaging, however praiseworthy may have been their object and occasion. Simeon of Durham, an eminently respectable contemporary author, wrote of the death of King William Rufus in the year 1100 that the popular voice considered the wandering flight of Tyrell’s arrow a token of the “virtue and vengeance of God.” And he added that about that time the Devil had frequently shewn himself in the woods “and no wonder, because in those days law and justice were all but silent.” The logic of this because, not apparent on the surface, becomes less obscure when it is remembered that in the mediæval devil the character of Arch-Enemy is so much subordinated to that of Arch-Avenger.
The direct relation of not only the Saints but of the Deity itself to human affairs was a conception so clear to the mediæval mind that it saw nothing irreverent in a title deed being taken in the Supreme name, or in marshalling “Deus Omnipotens” at the head of the list of witnesses to a charter. This anthropomorphic practice gave occasion to one of the sharpest of Walter Map’s jokes against the Cistercians. Three abbots of that order petitioning on behalf of one of their number and his abbey for the restoration of certain lands by King Henry II. as having been injuriously taken away from the claimant’s abbey, represented to the King in his court that for God’s sake he ought to cause the lands to be restored and they assured him and gave him God himself as their guarantor (fidejussorem) that if he did, God would greatly increase his honour upon earth. King Henry found it difficult to resist the appeal thus made to him but called the Archdeacon Walter Map to advise. This he did well-knowing that this counsellor did not love the Cistercians, and that he might thus find a creditable way out of a tight corner. The Archdeacon was equal to the occasion. “My lord,” said he to the King, “they offer you a guarantor; you should hear their guarantor speak for himself.” “By the eyes of God,” replied Henry, “it is just and conform to reason that guarantors themselves should be heard upon the matter of their guarantee.” Then rising with a gentle smile (not a grin, expressly says Giraldus Cambrensis) the shrewd monarch retired leaving the disappointed abbots covered with confusion.
Of the many ties between literature and law, one, not by any means the least interesting on the list, is the quantity of legal citations, phrases, metaphors and analogies which got swept into the wide nets of the poets. Amongst such scraps there are few so successful and still fewer so pathetic as one in which a metrical historian, drawing near the close, both of his days and his chronicle, figured himself as summoned on short induciæ at the instance of Old Age to appear at a court to answer serious charges, where no help was for him save through grace and the Virgin as his advocate.
Elde me maistreis wyth hir brevis,elde, age
Ilke day me sare aggrevis,brevis, writ
Scho has me maid monitiouneilke, each
To se for a conclusiounequhilk, which
The quhilk behovis to be of det;of det, of right
Quhat term of tyme of that be set
I can wyt it be na way,wyt, know
Bot weill I wate on schort delay
At a court I mon appeire
Fell accusationis thare til here
Quhare na help thare is bot grace.bot, without
The maikless Madyn mon purchacemaikless, matchless
That help; and to sauff my statepurchace, procure
I haiff maid hir my advocate.sauff, save
Androw of Wyntoun’s verse it must be owned was verse on the plane of a notary public, and oft the common form of legal writ supplied sorrily enough the deficiencies of his imagination. But here for once the simple dignity of the thought bore him up and carried him through.
By Cuming Walters.
A VERY curious and interesting phase of self-government is that which is supplied by the independent legal system established in various small islands in the United Kingdom. It is amusing to notice these little communities on rocky islets tenaciously preserving their ancient privileges, and revelling in the knowledge that they have a code of their own by no means in harmony with the statute law of the country of which they are an insignificant part. The tribunals and the legal processes in the Channel Islands, in the Scilly Islands, in the Isle of Man, and even in some of the smaller islands round the English coast, differ entirely from those established in the motherland; and any suggestion of change is warmly resented. In many cases it has not, of course, been worth while to insist on reform, inasmuch as the islands are inhabited only by a few families, who may be left in peace to settle their own differences if any occur.
There are a great many scattered islets about the sinuous line of Irish coast, very few of which are ever visited by strangers. The conditions of life in these isolated places are seldom investigated, and yet we find there are some remarkable survivals of old customs and relics of ancient laws. The people are independent, because they feel they are totally separated from the mainland, and possess neither the means nor the desire to cross over to it. They are in many respects a race by themselves, and their attachment to their little homes of rock is such that one of their severest punishments for offenders is to transport them to Ireland. Such an island is Raghlin, or Rathlin, six miles distant from the north-west of Antrim, but might be six hundred miles, judging by the slight intercourse the handful of inhabitants has with the larger world. Another such island is Tory, ten miles from the Donegal coast, where up to a few years ago the dwellers were unacquainted with any other law than that of the Brehon code. A visitor in 1834 found them choosing their own judge, and yielding ready obedience to mandates “issued from a throne of turf.” In this case, and in the case of the Cape Clear islanders, it was found that the threat of banishment to the mainland was severe enough to prevent serious crime. These feelings probably have been modified in more recent times, yet the intensity of the attachment of islanders to their native rock is one of the ineradicable characteristics which account for the sturdy independence manifested in their laws and customs. Their little homes are miniature worlds which they prefer to govern themselves in their own way. We may take the Scillies as a favourable example, where the natives cling to the system of civil government by twelve principal inhabitants forming a Court presided over by a military officer. The Court is held every month, and it has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall has, or, at all events, had, no jurisdiction in the islands, though persons prosecuted for felonies (which are extremely rare) have to be relegated to the Assizes at Launceston.
The patriarchal system has always been much in evidence in the small Scotch islands, which, for the most part, are the possessions of the descendants of feudal chieftains. Dr. Johnson adverted to this fact on the occasion of his famous journey in the North:—“Many of the smaller islands have no legal officers within them.
I once asked, if a crime should be committed, by what authority the offender could be seized, and was told that the laird would exert his right; a right which he must now usurp, but which merely necessity must vindicate, and which is therefore yet exercised in lower degrees by some of the proprietors when legal process cannot be obtained.” But after observing how the system operated, Dr. Johnson freely admitted that when the lairds were men of knowledge and virtue, the convenience of a domestic judicature was great. Owing to the remoteness of some of the islands and the difficulty of gaining access to others, it was scarcely possible to bring them under the common law, and we find that in some instances the proprietors were allowed to act as magistrates by the Lord-Lieutenant’s commission. Some of the old lairds had a very effective but unjudicial method of enforcing their laws. Lord Seaforth, High Chief of Kintail, was anxious to abolish a very odious custom of woman-servitude which prevailed in the island of Lewis. The men were wont to use the women as cattle, compelling them to draw boats like horses, and, among other things, to carry men across the deep and dangerous fords on their backs. This practice greatly disgusted Lord Seaforth, who found, however, that it was one particularly hard to check. He arrived one day on horseback at a stream which a peasant was contentedly crossing, mounted on a woman’s shoulders. When the middle of the stream was reached, the laird urged his horse forward, and came up with the couple, when by vigorously laying his whip about the back of the man, he compelled him to dismount, and wade as best he could to the opposite bank. This practical indication of the laird’s wishes aided considerably in producing a change.
The Scotch islanders are a law-abiding people, and patriarchal government sufficed. It was recorded of the inhabitants of Skye that, during a period of unusual distress and semi-starvation, not a single sheep was stolen. So keen is the sense of propriety in that island that a whole family has been known to slink away, unable to bear the disgrace brought upon them by an individual delinquent. Orkney and Shetland once possessed all the characteristics of a separate kingdom, the laws of no other countries being imposed upon them. There was none to dispute the laird’s right, and legal administration was entirely in his hands, except for the period that the islands were placed under episcopal rule. It is worth noting that the most famous of the governing bishops, Robert Reid (tempus 1540), also filled the high office of President of the Court of Session at Edinburgh, and he and his successors are said to have ruled with conspicuous mildness and equity.
We may now turn to one or two English islands before devoting attention to the most important examples of all—those supplied by the Isle of Man and the Channel Islands. The Isle of Wight is only regarded as “separate” from Hampshire for one legal purpose, so far as I have been able to ascertain. It is part of the “county of Southampton” for all purposes except the land-tax payment: for this it has a separate liability. But the land-tax divisions are the most irregular, and the least uniform of any legal divisions in the country, and it is therefore not surprising that the Isle of Wight should in this respect be subject to peculiar usage. Purbeck is one of those “isles” in England which now depend more upon tradition for their designation, than natural accordance with the geographical definition. What is remarkable is that these “isles”—such as the Isle of Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of Meare—nearly all have certain well-established and recognised laws of their own for the little communities which dwell within their borders. The quarrymen of Purbeck consider themselves a race apart, and their guild is one of the closest and strictest character. Their homage is paid exclusively to the lord of the manor, and the “Marblers” claim to have received a special charter from King Edward. On Shrove Tuesday they elect their officers, and celebrate the occasion by kicking a football round the boundaries. One ancient custom observed on these occasions is to carry a pound of pepper to the lord of the manor, as an acknowledgement to him in respect to a “right of way.” Until comparatively recent times the government of the island was patriarchal in character. The Isle of Glastonbury had its “House of Twelve Hides” for the trial of petty cases in the locality, and tradition reports that unusually large dungeons were prepared for the immuring of those who offended in the renowned Avalonian isle.
The Isle of Man, when subject to the Kings of Norway, was a subordinate feudatory kingdom. It afterwards came under the dominion of the English Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. eventually claimed the little isle, and disposed of it to the Earl of Northumberland, but upon this famous nobleman’s attainder it went to Sir John de Stanley. Its government seemed destined to be unsettled, however, and though the title of king was renounced by the possessors of the land, they maintained supreme and sovereign authority as to legal process. In the Isle of Man no English writ could be served, and as a result it became infested with smugglers and outlaws. This was unsatisfactory, and, in 1765, the interest of the proprietor was purchased, in order that the island should be subject to the regulations of the British excise and customs.
According to Blackstone, than whom there could be no greater authority, the Isle of Man is “a distinct territory from England, and is not governed by our laws; neither doth an Act of Parliament extend to it unless it be particularly named therein.” It is consequently a convenient refuge for debtors and outlaws, while its own roundabout and antiquated methods of procedure have been found to favour the criminal rather than to aid prosecutors and complainants.
Perhaps this was never more vividly illustrated than in the recent case of the murderer Cooper, who profited by the cumbrous and lenient processes of Manx law to the extent of getting an atrocious crime reduced to manslaughter. The laws have often been amended. Prior to 1417 they were “locked up in the breasts of the Deemsters,” but Sir John Stanley found that so much injustice was being done under the pretence of law, that he ordered a promulgation to be made. But “breast laws” continued to be administered for another two centuries, until Lord Strange, in 1636, commanded that the Deemsters should “set down in writing, and certify what these breast laws are.” In 1777, and also in 1813, the laws of the island were again amended, and every criminal was allowed three separate and distinct trials before different bodies. First the High Bailiff hears his case, then the Deemster and six jurymen, and, thirdly, if he has been committed for trial, he is brought before the Governor and the Deemsters. By the time the case gets to the final court it has usually been “whittled down” to the smallest possible proportions, and doubts have often been raised whether justice is not marred by misplaced and unwarranted lenity. Another strange practice is that the Manx advocates combine the parts of barrister and attorney. The law is hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it is suspected that they are about to leave the island; but there are no County Courts. On the other hand, there are Courts of Law of almost bewildering variety—the Chancery Court, the Admiralty, the General Gaol Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two Deemsters’ Courts for the north and south of the island, the Seneschal’s Court, the Consistorial, the Licensing, and the High Bailiff’s. Each sheading, or subdivision, has its own coroner or sheriff, who can appoint a “lockman” as his deputy; and each parish (there are seventeen) has its own captain and a “sumner,” whose duty in old times was to keep order in church and “beat all the doggs.” Manx law had, and perhaps to some extent still has, a similar reputation either for allowing criminals in the island to escape easily, or for permitting English criminals to remain unpunished; hence the old ribald verse which represents the Devil singing—
“That little spot I cannot spare,
For all my choicest friends are there.”
The Deemster’s oath is a curiosity in itself:—“I do swear that I will execute the laws of the isle justly betwixt party and party as indifferently as the herring’s backbone doth lie in the midst of the fish.” Formerly the elective House of Keys possessed judicial as well as legislative functions, but this power was taken from it by the Act of 1866. Laws are initiated in the Council and the Tynwald Court, which promulgates them, consists of the members of the Council, and the House of Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall Caine is an interesting, historic, but not an impressive ceremony. A thousand years ago the Norsemen established a form of government on the island, and every fifth of July the Manxman has his open-air Parliament for the promulgation of laws. But it is a gala day rather than a day of business. “Reluctantly I admit,” writes Mr. Hall Caine, “that the proceedings were, in themselves, long, tiresome, ineffectual, formless, unimpressive, and unpicturesque. The senior Deemster, the amiable and venerable Sir Wm. Drinkwater, read the titles of the new laws in English. Then the coroner of the premier sheading, Glenfaba, recited the same titles in Manx. Hardly anybody heard them; hardly anybody listened.”
The Channel Islands were part of the Duchy of Normandy, and their laws are mostly the ducal customs as set forth in an ancient book known as “Le Grand Coustumier.” Acts of the English Parliament do not apply to these Islands unless specifically mentioned, and all causes are determined by their own courts and officers. In Mr. Ansted’s standard work on the Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long chapter is devoted to the whole subject, and it is so complete and well expressed that I venture without much alteration of phraseology to summarise its leading points. Jersey and Guernsey have diverged greatly from each other in their legal customs, and it is also curious to find that each of the smaller islands possesses its own particular constitutions and courts. The rights and customs of the “States,” which are an outcome of the mediæval Royal Court, have constantly undergone modification and have been remodelled, but they retain many of the ancient characteristics. The Bailiff (Bailli), or chief magistrate, is the first civil officer in each island, and usually retains his office for life. He presides at the Royal Court, takes the opinions of the elected Jurats, and when their voices are equal has a casting vote both in civil and criminal cases. The Bailiff is not required either in Jersey or Guernsey to have had a legal education. He is appointed by the Crown, but has usually held some position at the island bar. Formerly the advocates practising in the court of Jersey were nominated by the Bailiff, and were limited to six in number. In 1860, however, the bar was thrown open to every British subject who had been ten years resident in the island, and who was qualified by reason of being a member of the English bar, having taken a law degree at a French University, and having passed an examination in the island. In Guernsey the advocates are also notaries, and frequently hold agencies. The judicial and legislative powers in Jersey are to some extent separate, but in Guernsey they are intimately associated—a fact which accounts for much of the difference in custom in the two islands.
The ancient Norman law contained in “Le Grand Coustumier” dates back to the thirteenth century, was badly revised in the time of Queen Elizabeth, and became the Code. Trial by jury was established in 1786, and the laws on the subject have undergone considerable change. There is a committing magistrate, and the trial takes place at the Criminal Assizes of which there are six in the year. The jury numbers twenty-four; if twenty agree, the verdict is taken; if less than twenty the prisoner is set free. Minor offences are referred to a court of Correctional Police presided over by a magistrate who is independent of the Royal Court. The same magistrate presides over the court for the recovery of small debts, and there is no appeal from his decision. Then there are subsidiary courts for various police purposes, while the Court of Héritage entertains suits regarding real estate. The arbitrary operation of these Courts may have very evil results, especially for strangers who are unlearned in the peculiarities of Jersey law. I find a striking example of this in a magazine of June 15th, 1861, in which a hard experience is detailed with comments which appear to be fully justified by the circumstances. The writer says:—
“Before leaving England I had had a serious quarrel with a former friend and medical attendant, and no long time elapsed after our arrival in the island, before this gentleman sent me in a bill of monstrous proportions—a true ‘compte d’apothecaire’ as the French express it. At that time I was quite ignorant of the singular constitution of Jersey law, and how it placed me in the power of any man who chose to sue me whether I owed him money or not. I wrote to the doctor, refusing to pay the full amount of his claim, and referring him to a solicitor in London. He was, however, better acquainted with the Jersey law than myself, as the result will show. Here, before proceeding with my story, I will enter into some explanation of the law of debtor and creditor as it exists in Jersey. This law enables the creditor to enforce his demands summarily, depriving the party sued of his liberty, and leaving him in gaol till the costs of his imprisonment have swelled the amount to be paid: and further, supposing the defendant ultimately gains his suit, and proves his non-liability, no damages for false imprisonment are obtainable. The law leaves him no remedy, for the plaintiff makes no affidavit; and a simple letter from England, requesting a Jersey advocate to enforce payment of a claim, is enough to cast the defendant at once into prison, prior to any judicial investigation into the merits of his case.
“Thus, in Jersey, every man (unless he be a landed proprietor) is at the mercy of every other man, both in the island and out of it. In short, one man can arrest another simply by drawing up an imaginary account on a common bit of paper, and handing it to the nearest lawyer, who will send his clerk with the sheriff’s man and imprison the unfortunate victim in default of immediate payment. What is worse still, an arrest can be carried into effect, by means of a simple letter sent through the post. The exception in favour of land-owners of course includes the owners of house property, an exception which mostly benefits Jersey-men, as few but natives possess property in the island. It is only a proprietor who must be sued before he can be imprisoned. If the Jersey laws confined the persons merely of strangers sued by the inhabitants of the island, in the arbitrary manner described, the justice of such a practice might still be defended on the plea of preventing them from leaving the island; but no excuse can be found when the Jersey law is made an instrument in the hands of strangers, living out of the jurisdiction of the island, and when it is used to enforce payment of debts incurred in another place, and in which no inhabitant of the island is interested, and when (as sometimes happens) it is employed as a means of extortion. In the first case it can be urged that, at least, it gives protection to the islander, which may be all proper enough, though the system is liable to abuse. In the second, the injustice and folly of the law is flagrant. By what right or reason ought the Jersey code, without previous inquiry, to deprive one man of his liberty at the demand of another, when both are strangers, and when the dispute relates to matters wholly beyond its pale, and in reference to which it has no means of obtaining information on oath? Yet such is the case, and thus the Jersey law is converted into a mere tool of iniquity and oppression. In speaking of this strange anomaly in Jersey law, I am not referring to bills of exchange, or to securities of any sort, but merely to simple debts, free from any acknowledgment or signature whatever. In any other Court, such claims would not be entertained for a moment. Surely the law is barbarous enough for the people of Jersey, without its consequences being extended beyond its circumference. But, as matters stand at present, the case stands thus: A and B fall out together. Now B is a rogue. They go to law together, and B demands of A more than he is entitled to. The courts in England are about to decide upon the merits of the case. Meanwhile B learns that A is gone to Jersey for a short time on business, perhaps connected with this very affair, such, for instance, as looking up an important witness. What does B do? He immediately sends off a letter enclosing his little account to a Jersey lawyer, instructing him to demand payment or lock up A forthwith. The lawyer obeys, of course; A storms—protests—all in vain. He is incarcerated, and is told he may explain as much as he likes afterwards; but, in the meantime, must go to prison, or pay. At last poor A, whose liberty is important to him, wearied with the delays which it is the interest of the Jersey lawyers to raise in his suit for judgment, pays the demand into court (au greffe) to be adjudicated on—costs of law, costs of imprisonment and all. The latter item includes 10s. every time the prison door is opened to let him pass on his way to court—a journey he has too often to perform without much approach to a dénoûment, and whither he is obliged to go under escort like a criminal; and this process is repeated several times, without the cause even being called on for hearing. Worst of all, when A comes out, he has to decide upon the merits of the case. Meanwhile no remedy against B, who, of course, being satisfied, withdraws his suit at home.”
Another seeming anomalous process may be cited. An appeal lies from some of the small Courts to the full Court, or Nombre Supérieur, but the jurats who sit in the Court of First Instance are not debarred from sitting in the Full Court when an appeal from their own judgment is being heard! All the proceedings are carried on in the French language, which is again extremely inconvenient for the English residents. The Bailiff comments on the evidence and on the arguments of the pleaders, collects the opinion of the jurats, and delivers judgment. In Guernsey the decisions are given in private. “Pleadings in these courts are very simple,” says Mr. Ansted. “The plaintiff must serve on the defendant a summons or declaration, setting forth the nature of his claim, and in some cases the reasons on which it is grounded are added. If not sufficiently definite the declaration is sent back by the Court for amendment. If the defendant means to plead any objections by way of demurrer or special plea, these are at once heard and disposed of. If the parties join issue on the merits of the case, the Court hears the parties, or their counsel, and decides. If the case be intricate the parties are sometimes sent before the Greffier—in Guernsey before one of the jurats,—who reports, condensing the matter in dispute, and presenting the points to the court for decision.” Trial by jury does not exist in Guernsey. The court at Alderney is subordinate to that of Guernsey. The jurisdiction in matters of correctional police is final where the offence can be punished by a month’s imprisonment or a fine not exceeding £5; otherwise it is referred to Guernsey for trial. The Court of Sark, which has undergone many strange vicissitudes since its institution in 1579, consists of the seneschal, or judge, the prévôt and the greffier, all appointed by the feudal lord, or seigneur. The seneschal is an absolute authority in small cases, but his right of punishment is limited to the narrow bounds of inflicting a fine of about four shillings, and of sentencing to three days’ imprisonment. All cases demanding severer treatment are relegated to the Guernsey Courts. Enough has been said to show that Mr. Ansted was justified in declaring that though the islanders were unfitted by their habits and education for any radical change in their peculiar institutions, yet “the practice of the law courts both in Jersey and Guernsey has long been felt to be in many cases cumbrous, not to say objectionable. Indeed, where so much that is personal interferes in the administration of justice, and where personal and family influence cannot but be felt, it is not astonishing that reasonable complaints are sometimes heard.” Three times during the present century Royal Commissions have enquired into Jersey law, but their recommendations have been systematically ignored. No remedies have been carried out, and the islanders cling with extraordinary pertinacity to customs which are notoriously abused and to priveleges which are opposed to fair-dealing. The Channel Islands and the Isle of Man are standing evidence of the danger incurred by such independence of legal authority as they have hitherto been permitted to enjoy.
By George Neilson.
IT might be thought that a man’s death made an end of him, and that his mere body had no rights or duties except that of getting decently buried. The middle age had other ideas. The dead still had status and duties. Continental laws recognised acts of renunciation in which a widow laid the keys on her husband’s corpse, or tapped his grave with the point of a halberd. The body of a murdered person, or, it might be his hand merely, might be carried before the judge to demand vengeance. By English thirteenth century law legal possession of real estate was thought to remain in a man, not until he died, but until his body was borne forth to burial. The dead might be a very potent witness, as shewn by the ordeal of bier-right, a practice founded on the belief that the murderer’s touch would cause the victim’s wounds to bleed afresh. Thus variously qualified to act as witness or prosecutor as occasion required, it is not surprising to find the dead as defendant also.
English history remembers the strange scene enacted in the monastery of Caen in 1087, when William the Conqueror lay dead there, and the ceremonials of his interment were interrupted by a weird appeal. Ascelin, the son of Arthur, loudly claimed as his, neither sold nor given, the land on which the church stood, and, forbidding the burial, he appealed to the dead to do him justice. More than one old English poem turned its plot round the ancient canon law, by which a burial might be delayed for debt. The dead was arrestable: a law afterwards set aside, “for death dissolved all things.” But in more codes than one death did not dissolve liability for the consequences of high treason.
In Scotland, in the year 1320, at the “black parliament” of Scone, several Scotsmen were convicted of conspiracy against King Robert the
Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish historian of the time tells us that Roger of Mowbray, one of the accused, having died before his trial, “his body was carried to the place, convicted of conspiracy, and condemned to be drawn by horses, hung on the gallows, and beheaded.” It is to the credit of Bruce that he did not allow the corporal part of the sentence to be carried out, although many entries in the charter rolls shew that the consequent escheats of the traitor’s lands served to reward the loyalty of others. His body convicted of conspiracy! How came this singular procedure into Scottish practice?
In England, towards the close of the fourteenth century, although escheats were not less keenly looked after than in Scotland—and that sometimes in cases where men had died unconvicted,—the purpose of attainder appears to have been effected without the expedient of calling the dead to the bar. The dead, however, was convicted. In the case of Robert Plesyngton, for instance, in 1397, the judgment of Parliament bore an express conviction of treason, “noun-obstant la mort de dit Roberd.” In 1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was killed before the day appointed for the duel. The court not only adjudged him a traitor, but on grounds eked out by Roman law subjected his sureties in costs to his accuser—said costs including the handsome fee of 100s. and twelve yards of scarlet cloth to the lawyer Adam of Usk.
In all features save perhaps that of the actual presence of the body in the trial, warrant can be found for the Scottish practice in Roman law. The offence of “majesty,” or high treason, formed an exception to the great humane general rule that responsibility for crime ended with the criminal’s breath. Under the Lex Julia death was no defence to a charge of “majesty;” proceedings could be raised to stamp the dead man’s name with the brand of treason; his kinsmen might if they chose deny and defend; but if they failed to clear him his goods were confiscated and his memory damned. There is in the annals of Rome at least one instance of a death-sentence of this sort pronounced after the accused was in his grave. Nor was its scope confined absolutely to high treason. The Church had a quiet way of appropriating tit-bits of barbaric policy for pious uses. The Emperor Theodosius said that the inquisition for heresy ought to extend to death itself; and as in the crime of majesty, so in cases of heresy, it should be lawful to accuse the memory of the dead. The Popes endorsed the analogy, for heretics had goods, which sometimes were worth forfeiting. The spiritual authority however was of more moment. The Church claimed the power to bind and loose even after death, and a Welsh twelfth century bishop did not stand alone when he carried it so far as to scourge the body of a king who had died excommunicate. On the same principle dead heretics—dead before sentence of heresy—were burnt.
It was by a close following up of Roman jurisprudence, with, peradventure, some added light from the law and practice of the Church, that the French devised their procés au cadavre, by which the memory of a dead traitor was attacked. Its special application was to lesemajesty described as divine and human, the former an elastic term covering offences against God and religion. Allied to this latter category, though not exactly of it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent to mediæval thought as not only to be reckoned more culpable, but to call for more shameful punishment, than almost any other crime. So coupling the traitor and the self-slayer in the same detestation, the law assailed both by the same strange post-mortem process, and (by methods of reasoning which Voltaire was one of the first to ridicule) consigned their souls to perdition, their memories to infamy, and their bodies to the gibbet. The treatment of the suicide was peculiar in its refinements of symbolic shame. The body was, by the customary law (for example, of Beaumont), to be drawn to the gibbet as cruelly as possible, pour monstrer l’experience aux aultres. The very door-step of the house in which he lay was to be torn up, for the dead man was not worthy to pass over it. Impalement, transfixture by a stake, though well enough known on the continent as a punishment of the living, became there and in England alike, the special doom of the suicide. Yet the procés au cadavre had no footing in English law, and although it was already in 1320 received in Scotland, we shall find reason for thinking it not wholly welcome.
After the trial in 1320 before alluded to, the records in Scotland are silent for over two centuries, and it is not until 1540 that the process is heard of again. In that year the heirs of one Robert Leslie were summoned to the court of parliament to hear his name and memory “delete and extinct,” for certain points and crimes of lesemajesty, and his lands and goods forfeited to the king. Legal authorities, obviously forgetful of the fourteenth century instance, follow one another in the mistake of regarding Leslie’s as the first of its kind. The legality of the procedure was called in question at the time. Indeed, so loud was the murmur that it can still be heard in the act passed to put it to silence. “It is murmurit,” says the enactment, “that it is ane noveltie to rais summondis and move sic ane actioun aganis ane persoun that is deide, howbeit the commoun law directly providis the samin.” The three estates of parliament therefore on the motion of the lord advocate, declared unanimously “all in ane voce, but variance or discrepance,” that the cause was just and conform to common law. In another case of the following year the charge and judgment were enrolled in the Acts of Parliament. The widow and the heir of the late James Colville were summoned “to see and hear that the said deceased James, whilst he lived had committed the crime of lesemajesty.” The deliverance of parliament as tribunal was by its terms an actual sentence upon the dead—that the deceased James “hes incurrit the panis of crime of lesemajeste” for which causes the court decerned “the memoure of the said umquhile James to be deleit,” and his possessions confiscated to the crown. Parliament which had unanimously voted the procedure well based in law, found that it was dangerous. It was necessary to restrict its scope. In 1542, it is on parliamentary record that “the lordis thinkis the said act [i.e., of 1540], ower generale and prejudiciale to all the barions of this realme.” This would never do:—an act prejudicial to the barons! So it became statute law in 1542, that it should apply only to cases of grave treason, public and notorious during the offender’s life, and that prosecution for the future must be raised within five years after the traitor’s death. It was a reasonable restraint, not always observed.
During the reigns of Mary and James VI. a number of trials occurred in which this singular process was resorted to, and in some, if not all, of which the body of the dead appeared at the bar. Occasionally it was embalmed for the purpose. It had been a part of the border code, prevalent on the marches of England and Scotland, that an accused should, although dead, be brought to the place of judgment in person. In 1249, the marchmen of both realms had declared the law in that sense. They said that, in any plea touching life and limb, if the defendant died the body of him should be carried to the march on the day and to the place fixed between the parties, because—concludes this remarkable provision —“no man can excuse himself by death.” And in the end of the sixteenth century the borderers had not forgotten the tradition their forefathers had inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen were in fulfilment of their treaty obligations presenting their promised pledges, the custom was scrupulously observed on the English side. All were there,—all, though all included one that was no more. “Thoughe one of the nomber were dead, yet was he brought and presented at this place.” They evidently believed on the borders, which Sir Robert Cary with some reason called an “uncristned cuntry,” that a man could best prove that he was dead by attendance in person.
In trials for treason this principle was pushed in some instances to strange extremes. Probably one underlying reason of this, at a date so late, was to make sure that no formality should be lacking to make the forfeiture effective. But the main reason one must believe lay in its being a traditional observance. In the trial in 1600, of the Earl of Gowrie and his brother for an alleged attempt on the king’s life, the privy council on the preamble that it was necessary to have their corpses kept and preserved unburied, issued an act to that effect, and the treasurer’s accounts contain an entry “for transporting of the corpis of Gowrie and his brother.” Their bodies were accordingly produced at the trial, and the sentence which pronounced them guilty of treason and lesemajesty during their lifetime, declared their name, memory, and dignity extinguished, and ordained that “the dead bodeis of the saidis Treatouris,” should be hanged, quartered, and gibbetted. Their “twa hedis,” a grim diarist tells, were set upon the tolbooth, “thair to stand quhill the wind blaw thame away.”
The last case in the annals, in which this revolting Scottish “practick” was put into effect, occurred in 1609. Robert Logan, of Restalrig, had been nearly three years in his grave when it was given out that he had been a party to the alleged Gowrie conspiracy against King James. A process was at once taken in hand to proscribe his memory and escheat his property. As death was no excuse, neither was burial; and the ghastly form was gone through of exhuming the bones for presentation at the trial. It was a case plainly within the exception provided for in the act of 1542, for the man was not “notourly” a traitor, he had died in repute of loyalty: but the Crown was eager for a conviction. Much incredulity had been rife with regard to the Gowrie conspiracy. The evidences now adduced were—on the surface at any rate, although, perhaps, as many critics still think, on the surface only,—circumstantial and strong. The prosecution was therefore keenly pressed, and the reluctance of some of the judges overcome. A jocular jurist-commentator on these post-mortem trials, has remarked that the bones of a traitor could neither plead defences, nor cross-question witnesses. But in the dawn of the seventeenth century they could turn the sympathy of the court against the charge, as it appears they did in Logan’s case. The proofs, however, looked overwhelming, and the forfeiture was carried without a dissenting voice from the bench—from the bench, because it was, as all Scots treason-trials then were, a trial by judges only, not by judge and jury. Logan’s memory was declared extinct and abolished, and his possessions forfeited. The judgment, however, wreaked no vengeance on the exhumed remains. Humanity was asserting itself even in the trial of the dead, and that institution itself was doomed. Although in disuse ever after, it did not disappear from the theory of law until 1708, when the act 7 Anne, chapter 21, prescribing jury-trial for treason, assimilated the Scots law on the subject to that of England, and thus brought to an unregretted end one of the most gruesome of legal traditions.
By Sidney W. Clarke.
THAT the world has become more merciful as it has grown older, is a truism at once apparent to anyone who gives even a cursory glance at any of the numerous works dealing with the criminal laws of the olden time. Still the approach to the most excellent quality has been regretably and painfully slow, and it is surely a stain on the boasted enlightenment of the nineteenth century, that the century had run through nearly three-fourths of its existence before the terrible and vindictive punishment of drawing and quartering disappeared from our statute book. In most States the early laws have been of a blood-thirsty and fear-inspiring nature, but what excuse can be urged for the fact that until the fourth day of July, in the year of Grace 1870, the punishment ordained by law for the crime of high treason, was that the unfortunate offender should be drawn on a hurdle to the place of execution, there to be hanged by the neck till he be dead; that his head be severed from his body; that his body be divided into four quarters; and that his head and quarters be at the disposal of the Crown. In Blackstone’s time the sentence was still more savage, or, as the great Commentator puts it, “very solemn and terrible.” It was that the offender be drawn to the gallows, and not be carried or walk; “though usually,” says Blackstone, “by connivance, at length ripened by humanity into law, a sledge or hurdle was allowed to preserve the offender from the extreme torment of being dragged on the ground or pavement;” that he be hanged by the neck and then cut down alive; that his entrails be taken out, and burned before his eyes, while he was still alive; that his head be cut off, his body be divided into four parts, and his head and quarters be at the King’s disposal. What our tender-hearted monarchs did with the quivering pieces of flesh let the stones of Temple Bar, the City Gates, and the Tower bear witness. Here are a couple of extracts from that perennial fountain of information, the diary of Mr. Samuel Pepys. Under date of October 13th, 1660, he writes, “I went out to Charing Cross to see Major-General Harrison,” one of the regicides, “hanged, drawn, and quartered, which was done there, he looking as cheerful as any man could do in that condition.” Note the grim humour of the words in italics. “He was presently cut down, and his head and heart shown to the people, at which there was great shouts of joy.” Again, on October 20th, in the same year:—“This afternoon going through London and calling at Crowe’s, the upholsterer’s, in St. Bartholomew’s, I saw the limbs of some of our new traytors set upon Aldersgate, which was a sad sight to see; and a bloody week this and the last have been, there being ten hanged, drawn, and quartered.”
It will be observed that the masculine gender is used in the foregoing sentences for high treason; for, if the offender was a woman, the law with a delicacy (!) one would hardly have expected, recognised that “the decency due to the sex forbids the exposing and publicly mutilating their bodies;” so a woman was simply to be drawn to the gallows, and there burned alive. And these punishments for treason Sir Edward Coke attempted to justify on Scriptural grounds, adding “it is punishment undoubtedly just, for our liege lord the King is lord of every one of our members, and they have severally conspired against him, and should each one suffer.” Evidently justice has not always spelt humanity.
Another of the horrible punishments decreed by English law was that of boiling to death, which in the reign of Henry VIII. was inflicted for poisoning, and recalls the most cruel tortures of China and the Orient, where slicing to death and impalement alive are or were common forms of punishment. The awful fate of being boiled alive was specially devised for the benefit of John Roose, a cook, who had been convicted of throwing poison into a pot of broth intended for the family of the Bishop of Rochester and for the poor of the Parish; in 1542, Margaret Davey suffered the same lingering death at Smithfield. So fearful were our ancestors of poison, that in Scotland, in 1601, Thomas Bellie, a burgess of Brechin, and his son were banished for life by the High Court of Justiciary, for the heinous offence of poisoning a couple of troublesome hens belonging to a neighbour. Even the laws of Draco, said on account of their severity to have been written not in ink but in blood, can scarcely compete with these examples of British barbarity. Among the Romans strangulation, precipitation from a rocky height (a mode of carrying out the death sentence still found amongst savage tribes), and lashing to death were forms of punishment. Soldiers guilty of military offences had to run the gauntlet. Upon a given signal all the soldiers of the legion to which the offender belonged fell upon him with sticks and stones, and generally killed him on the spot. If, however, he succeeded in making his escape, he was thenceforth an exile from his native country. Offending slaves were first scourged and then crucified. They were compelled to carry the cross to the place of execution, and after being suspended were left to perish by slow degrees. Crucifixion was abolished throughout the Roman Empire by Constantine, out of reverence to the sacred symbol. Other cruel punishments were burning alive, exposure to wild animals, and condemnation to fight as gladiators in the arena for the amusement of the citizens. The second of these modes of death, for death was the invariable result, was the one usually meted out to the early Christians—“If the Tiber overflows its banks; if there be a famine or plague; if there be a cold, a dry, or a scorching season; if any public calamity overtakes us; the universal cry of the people is—“To the lion with the Christians Christiani ad leonem!”
Parricide was punished in a strange manner. The criminal, after being scourged, was tied or sewed up in a leather bag, with a dog, a cock, a viper, and an ape to keep him company, and so cast into the sea. The Egyptians punished the same offence by sticking the prisoner all over with pointed reeds, and then throwing him upon a fire of burning thorns, where he lay till he was consumed.
With most nations the Lex talionis, or punishment of retaliation—an eye for an eye, a limb for a limb—has found a place in the penal system. It was not, indeed, always carried out to its logical conclusion, but rather became the subject of many subtle distinctions. Among the Athenians, Solon decreed that whoever put out the eye of a one-eyed person should for so doing lose both his own. But what, it was asked, should be done where a one-eyed man happened to put out one of his neighbour’s eyes? Should he lose his only eye by way of retaliation? If so, he would then be quite blind, and would so suffer a greater injury than he had caused. The law of the Jews and Egyptians compelled anyone, who without lawful excuse was found with a deadly poison in his possession, to himself swallow the poison. An instance of a kind of lex talionis in our own country is found in the reign of Edward I., when incendiaries were burnt to death. Another example is that, from the reign of Henry VIII. to that of George IV., to strike a blow and draw blood within the precincts of the King’s palace, entailed on the offender the loss of his right hand. Here are some of the regulations prescribed by the statute 33 Henry VIII., chapter 12, for the infliction of the punishment:—
“viii. And for the further declaration of the solemn and due circumstance of the execution appertaining and of long time used and accustomed, to and for such malicious strikings, by reason whereof blood is, hath been, or hereafter shall be shed against the King’s peace. It is therefore enacted by the authority aforesaid, that the Sergeant or Chief Surgeon for the time being, or his deputy of the King’s household, his heirs and successors, shall be ready at the time and place of execution, as shall be appointed as is aforesaid, to sear the stump when the hand is stricken off.
“ix. And the Sergeant of the Pantry shall be also then and there ready to give bread to the party that shall have his hand so stricken off.
“x. And the Sergeant of the Cellar shall also be then and there ready with a pot of red wine to give the same party drink after his hand is so stricken off and the stump seared.
“xi. And the Sergeant of the Ewry shall also be then and there ready with cloths sufficient for the Surgeon to occupy about the same execution.
“xii. And the Yeoman of the Chandry shall also be then and there, and have in readiness seared cloths sufficient for the Surgeon to occupy about the same execution.
“xiii. And the Master Cook shall be also then and there ready, and shall bring with him a dressing-knife, and shall deliver the same knife at the place of execution to the Sergeant of the Larder, who shall be also then and there ready, and hold upright the dressing-knife till execution be done.
“xiv. And the Sergeant of the Poultry shall be also then and there ready with a cock in his hand, ready for the Surgeon to wrap about the same stump, when the hand shall be so stricken off.
“xv. And the Yeoman of the Scullery to be also then and there ready, and prepare and make at the place of execution a fire of coals, and there to make ready searing-irons against the said Surgeon or his deputy shall occupy the same.
“xvi. And the Sergeant or Chief Ferror shall be also then and there ready, and bring with him the searing-irons, and deliver the same to the same Sergeant or Chief Surgeon or to his deputy when they be hot.
“xvii. And the Groom of the Salcery shall be also then and there ready with vinegar and cold water, and give attendance upon the said Surgeon or his deputy until the same execution be done. “xviii. And the Sergeant of the Woodyard shall bring to the said place of execution a block, with a betil, a staple, and cords to bind the said hand upon the block while execution is in doing.”
In addition to losing his hand, the unfortunate offender was imprisoned for life. It was not until 1829 that this punishment was abolished, after having been in existence for a period of 287 years.
A curious mode of punishment, intended to make its victim the object of popular ridicule, was in vogue in the ancient German Empire, where persons who endeavoured to create tumults and to disturb the public tranquility were condemned to carry a dog upon their shoulders from one large town to another.
The penal laws of France were every wit as inhuman as our own—burning alive, breaking on the wheel, hanging, beheading, and quartering were common forms of punishment. Awful atrocities were committed on living victims, such as tearing off the flesh with red-hot pincers, pouring molten lead and brimstone into the wounds, and cutting out the tongue. The following is the sentence passed upon Ravaillac, the assassin of Henry IV., in 1610:—He was first to be privily tortured and then carried to the place of execution. There the flesh was to be torn with red-hot pincers from his breasts, his arms and thighs, and the calves of his legs; his right hand, holding the knife wherewith he committed his crime, was to be scorched and burned with flaming brimstone; on the places where the flesh had been torn off a mixture of melted lead, boiling oil, scalding pitch, wax, and brimstone was to be poured; after this he was to be torn in pieces by four horses, and his limbs and body burned to ashes and dispersed in the air. His goods and chattels were confiscated; the house in which he was born was pulled down; his father and mother were banished, and his other relatives commanded to change the name of Ravaillac for some other. This sentence was not, surely, a vindication of outraged justice, but rather a purile and barbarous legal revenge.
To return to the laws of our own country. Mutilation of one sort or another was long a favourite mode of punishment; pulling out the tongue for slander, cutting off the nose for adultery, emasculation for counterfeiting money, and so on. In Foxe’s “Book of Martyrs” there is an account of a miracle which was worked on the person of a mutilated criminal. A Bedfordshire man was convicted of theft, and for his crime his eyes were pulled out and other abominable mutilations were inflicted on him. The sufferer repaired to the shrine of St. Thomas at Canterbury, where after devout and steadfast prayer the parts he had lost were, so we are told, miraculously restored. Anyone who fought with weapons in a church had an ear cut off, or if he had already lost both his ears was branded in the cheek with the letter F.
By an Act passed in the reign of Queen Elizabeth, the punishment for forgery was that the offender should stand in the pillory and have his ears cut off by the common hangman, his nostrils slit up and seared, and then suffer imprisonment for life. In 1731 Joseph Cook, aged 70 years, underwent this punishment, the mutilation taking place while he stood in the pillory at Charing Cross.
The Coventry Act (22-23 Charles II., chapter 1.) was passed in consequence of Sir John Coventry having been assaulted in the street and his nose slit, out of revenge as was supposed. It enacted that if any person should of malice, aforethought, and by lying in wait, cut out or disable the tongue, put out an eye, slit the nose, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him, such person, his councillors, aiders, and abettors, should be guilty of felony without benefit of clergy, which implied the punishment of death. This Act was not repealed until 1828, and resulted in at least one curious case. In 1772, one Coke and a labourer named Woodburn were indicted under the Act—Coke for hiring and abetting Woodburn, and Woodburn for the actual offence of slitting the nose of one Crispe, who was Coke’s brother-in-law. The intention of the accused was to murder Crispe, and they left him for dead, having terribly hacked and disfigured him with a hedge-bill, but he recovered. An attempt to murder was not then a felony, but under the Coventry Act to disfigure with an intent to disfigure was; and the accused were indicted for the latter offence. Coke, in the course of his defence, raised the point that the attack on Crispe was made with intent to murder him and not with intent to disfigure, therefore, he contended, the offence was not within the statute under which he was indicted. But the court held that if a man attacked another intending to murder him, with such an instrument as a hedge-bill, which could not but endanger a disfiguring of the victim, and in such attack happened not to kill but only to disfigure, he might be indicted for disfiguring. The jury found the prisoners guilty, and they were condemned and duly executed.
The laws for the protection of trade decreed many cruel punishments. Thus, in the reign of Elizabeth, an Act passed for the encouragement of the woollen industry prescribed that the penalty for taking live sheep out of the country should be forfeiture of goods, imprisonment for a year, and that at the end of the year the left hand of the prisoner should be cut off in a public market, and be there nailed up in the most public place. A second offence was punishable with death. By statute 21 James I. chapter 19, anyone unfortunate enough to become a bankrupt was nailed by one ear to the pillory for two hours, and then had the ear cut off. Under the Romans a bankrupt was treated still more unmercifully, for at the option of his creditors he was either cut to pieces or sold to foreigners beyond the Tiber.
A longstanding disgrace to the intelligence and humanity of our countrymen was the fact that in former times burning alive was the inevitable fate of poor wretches convicted of witchcraft, the penal laws against which were not repeated until 1736.
So late as 1712, five so called witches were hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged nine, were condemned to death at Huntingdon for selling their souls to the devil. Even children of tender years were not spared, but with their elders alike fell victims to our law’s barbarity; there are many recorded instances of children under ten years of age being executed. In Scotland the last execution for witchcraft took place in 1722.
Space will not permit any attempt to run through the whole gamut of legal iniquities; at most we can only attempt a very incomplete catalogue of the inhumanities at one time or another incident to our penal codes, and with a final horror we must bring this article to an end. The punishment with which we are now about to deal, that of pressing to death, peine forte et dure as it was called, is perhaps the most noteable example of the former barbarity of our law, since it was inflicted before trial on innocent and guilty alike, who refused to plead “Guilty” or “Not Guilty” to an indictment for felony. What this punishment was, which was first instituted in 1406, can best be told by giving the form of the judgment of the court against the person who refused to plead:—That the prisoner shall be remanded to the place from whence he came, and put in some low, dark room, and that he shall lie without any litter or other thing under him, and without any manner of covering; that one arm shall be drawn to one quarter of the room with a cord and the other to another, and that his feet shall be used in the same manner; and that as many weights shall be laid upon him as he can bear, and more; that he shall have three morsels of barley bread a day, and that he shall have the water next the prison, so that it be not current; and that he shall not eat the same day on which he drinks, nor drink the same day on which he eats; and that he shall continue so till he die or answer.
Peine forte et dure was not abolished till 1772, and was frequently undergone by accused persons in order to preserve their estates from being forfeited to the Crown, which would have been the case if they had stood their trial and been found guilty. The year 1741 is probably the last date on which the punishment was inflicted. In 1721, two men, Thomas Cross and Thomas Spigot, were ordered to be pressed to death at the Old Bailey. Cross gave in on seeing the preparations made for his torture, but Spigot was made of sterner stuff. In the “Annals of Newgate” is a description of his sufferings:—“The chaplain found him lying in the vault upon the bare ground with 350 pounds weight upon his breast, and then prayed by him, and at several times asked him why he would hazard his soul by such obstinate kind of self-murder. But all the answer that he made was—‘Pray for me, pray for me!’ He sometimes lay silent under the pressure, as if insensible to pain, and then again would fetch his breath very quick and short. Several times he complained that they had laid a cruel weight upon his face, though it was covered with nothing but a thin cloth, which was afterwards removed and laid more light and hollow; yet he still complained of the prodigious weight upon his face, which might be caused by the blood being forced up thither, and pressing the veins as violently as if the force had been externally upon his face. When he had remained for half-an-hour under this load, and 50 pounds weight more laid on, being in all 400 pounds, he told those who attended him he would plead. The weights were at once taken off, the cords cut asunder; he was raised by two men, some brandy was put into his mouth to revive him, and he was carried to take his trial.” In 1735, a man, who pretended to be dumb at the Sussex Assizes, was sent to Horsham Gaol to be pressed to death unless he would plead. He endured in agony a weight of 350 pounds, and then the executioner, who weighed over 16 stones, laid himself upon the board upon which the weights were placed, and killed the wretched man instantly.
Commonwealth Law and Lawyers.
Edward Peacock, f.s.a.
THE great Civil War as it is called, that is the struggle between Charles the First and his parliament, is memorable in many respects. No student of modern history can dispense with some knowledge of it, and the more the better, for it was the result of many things which had happened in the far distant past, and we may safely say that the great French Revolution, which produced some good, and such an incalculable amount of evil would have run a far different course to that which it did, had not the political ideals of the men who took part in that terrible conflict been deeply influenced by what had taken place in England a century and a half before.
As to the civil wars which had occurred in England in previous days, little need be said. They were either dynastic—the struggle of one man or one family against another—or they were religious revolts against the Tudors, by those who vainly endeavoured to re-establish the old order of things in opposition to the will of the reigning monarch and the political servants who supported the throne. The struggle between Charles and the Long Parliament was far different from this. That religion in some degree entered into the conflict which was raging in men’s mind long ere the storm burst it would be childish to deny, but it was not so much, except in the case of a very few fanatics, a conflict between different forms of faith as because a great number of the English gentry, and almost the whole of the mercantile class, which had then become a great power, felt that they had the best reasons for believing that it was the deliberate intention of the King and the desperate persons who advised him, to levy taxes without the consent of parliament. This may occasionally have been done in former reigns, but it is the opinion of most of those who have studied the subject in latter days, so far as we can see, without prejudice, that in every case it was illegal. Whether this be so or not, it must be remembered that times were in the days of Charles the First, far different from what his predecessors the Plantagenets and Tudors had known. A great middle class had arisen partly by the division of property consequent on the dispersion of the monastic lands, and partly also by the break up of the vast feudal estates, some of which had fallen into the hands of the Crown by confiscation, others been sold by their owners to pay for their own personal extravagence.
Though murmurs had existed for many years, it was not until the memorable ship-money tax was proposed that affairs became really grave. Had England been threatened by an invasion such as the Spanish Armada, there can be no doubt that a mere illegality in the mode of levying taxes to meet the emergency would have been regarded as of little account, but in the present case there was no overwhelming need, and it must be borne in mind that to add to the national irritation the two first Stuarts were almost uniformally unsuccessful in their foreign wars. It is to Attorney General Noy that we owe the arbitrary ship-money tax. He was a dull, dry, legal antiquary of considerable ability, whose works, such as his Treatise concerning Tenures and Estates; The Compleat Lawyer; The Rights of the Crown, and others of a like character, are yet worth poring over by studious persons. Such a man was well fitted for historical research, no one of his time could have edited and annotated The Year Books more efficiently, but he had no conception of the times in which he lived, the narrow legal lore which filled his mind produced sheer muddle-headedness, when called upon to confront an arbitrary king face to face with an indignant people. That there was less to be said against this form of royal taxation than any other that legal ingenuity could light upon must be admitted, but as events shewed the course he advised the king to take, was little short of madness. John Hampden, who represented one of the oldest and most highly respected races of the English gentry—nobles as they would be called in any land but our own—set the example of refusing to pay this unjust levy. The trial lasted upwards of three weeks, and the men accounted most learned in the law were employed in the case. Sir John Bankes, the owner of Corfe Castle, Sir Edward Littleton, and others were for the King. Oliver Saint John and Mr. Holborn were for Hampden. Concerning Holborn little seems to be known, but Saint John made for himself a great name. His speeches are marvellously learned, shewing an amount of reading which is simply wonderful when we call to mind that in those days all our national records were unprinted, and almost all of them without calendar or index of any sort. It must, however, be remembered that in those days lawyers of both branches of the profession were well acquainted not only with the language in which our records were written, but also with the hands employed at various periods, and the elaborate system of contraction used in representing the words.
A full report of this memorable trial is to be found in Rushworth’s Historical Collections, volume ii. parts 1 and 2. Carlyle in his Letters and Speeches of Oliver Cromwell, in the emphatic diction he was accustomed to use says that Saint John was “a dark, tough man of the toughness of leather,” but he does not dwell on his great learning and general ability, as he ought to have done. That Saint John’s heart was in his work for his client we are well assured. That from a legal point of view, Hampden was his only client, we well know, but as a matter of fact, it is no exaggeration to say that he represented the people of England. The decision went in favour of the crown, which was from the first a foregone conclusion. It was a legal victory, but like many lesser victories won before and since success was the sure road to ruin. The sum contended for was absurdly small—twenty shillings only—but on that pound piece hung all our liberties; whether we were to continue a free people or whether we were to have our liberties filched away from us, as had already been the case in France and Spain. A sullen discontent brooded over the land, there was no rioting, but in hall and castle, country parsonage and bar-parlour, grave men were shaking their heads and asking what was to come next, all knew that a storm was brewing, the only question was when and where it would burst. Events changed rapidly, and Saint John though he took no very prominent part in the party struggles ere the war broke out, was undoubtedly the chief legal adviser of those who were in opposition to the faction which desired to make England a despotic monarchy. Such was the case during the war which ended in the tragic death of the king, and the establishment of a Republican form of government under the name of the Commonwealth. Saint John once again appears in a public manner which indicates that he was a brave man who had no more fear of the pistol and dagger of the assassin, than he had of the corrupt dealings of those who for a time, to their own imminent peril had misgoverned our country. This time we find him sent by the Commonwealth as ambassador to the seven United Provinces, then as now commonly called Holland, on account of the two provinces of north and south Holland, being by far the most influential states in that republic. The Dutch though republicans themselves, had during the latter part of our Civil War shewn sympathy with the cause of the Royalists. After the execution of the king, this feeling became naturally much intensified. On the other hand our newly established republic was for many reasons both of politics and religion very desirous of being on good terms with a sister commonwealth so very near at hand. To explain matters and perhaps to settle the heads of a definite treaty, the English government sent Isaac Doreslaus, or Doorslaer as their ambassador. He was by birth a Dutchman and a very learned lawyer. He had come to this country before, the war broke out in 1642. He was then made, probably through the influence of his friend Sir Henry Mildmay, “Advocate of the Army.” His great knowledge of Civil Law, which had been much neglected in England in times subsequent to the Reformation, rendered him of great service in his new position of Judge Advocate of the Army. For the same reason he soon afterwards was created one of the judges of the Admiralty Court. He became especially hateful to the Royalists from his having assisted in preparing the charges against Charles the First. In May, 1649, he sailed for Holland as Envoy of the English government to the Hague. He had only spent a short time there, when, while at supper in the Witte Zwaan (White Swan) Inn, some five or six ruffians with their faces hidden by masks, rushed into the room where he, in company with eleven other guests were sitting. Two of these wretches made a murderous attack on a Dutch gentleman of the company, mistaking him for Dorislaus. Finding out their error they set upon the Envoy and slew him with many wounds, crying out as they did so, “Thus dies one of the King’s judges.” The leader of this execrable gang was Col. Walter Whitford, son of Walter Whitford, D.D. The murderer received a pension for this “generous action” after the Restoration.
The English Parliament gave their faithful servant a magnificent funeral in Westminster Abbey, June 14, 1649, but when Charles the Second ascended the throne, his body was disturbed. His dust rests along with that of Admiral Blake and other patriots in a pit somewhere in Saint Margaret’s churchyard. Dorislaus, though a foreigner, ought to rank among our great English lawyers, for his services were devoted entirely to his adopted country. Whatever our opinions may be as to those differences which were the forerunners of so much bloodshed and crime, we must bear in mind that many of the foremost men on both sides were actuated by the highest principles of honour. The study of Canon Law had been prohibited in the preceding century, and the Civil Law with which it has so intimate a connection, though not made contraband, was so much discouraged that it is no exaggeration to say that the knowledge of it was confined to a very few. Selden, whose wide grasp of mind took in almost every branch of learning as it was known in his day, is the only English lawyer we can think of who had mastered these two vast subjects. This is the more remarkable as he was of humble parentage; the son of a wandering minstrel it is said, but from the first his passion for learning overmastered all difficulties. It must, however, be borne in mind that according to the custom of those times when his abilities became known, he met with more than one generous patron.
We must for a moment return to Saint John who was selected in 1652, to represent his country in Holland. There was not, as there is now a trained body of men devoted to the diplomatic service. The reasons why Saint John was chosen for this important office are not clear. He was a great and widely read lawyer, who we apprehend was trusted with this difficult mission, not only because the government were assured of his probity, but because the relations between Holland and this country depended on many subtile antiquarian details which a mere student of the laws as they were then, would have been unable to unravel. The basis of the sea codes by which the various nations of Christendom professed to be ruled, was the Laws of Oleron (Leges Uliarences). They were promulgated by Richard the First of England, on an island in the Bay of Acquitaine. How far they were ever suited for their purpose may be questioned, but it is certain that as centuries rolled on, they had though often quoted, ceased to have any restraining power, and as a consequence Spain, England, Holland, and other powers were guilty of constant acts of what we should now call piracy. A lasting treaty with Holland, could Saint John achieve it, would have been of immense advantage, but the Dutch were in no mood for an alliance on equal terms. It was a brave thing for Saint John to undertake so arduous a mission, for he not only run the risk of ignominous failure, but also was in no little danger from the savage desperadoes who thought they did the cause of their exiled master service by murdering the agents of the English government. When Saint John arrived at the Hague he was put off by slow and evasive answers, which soon shewed to him not only that his own time was being wasted, but what was to him of far more account, the honour of his country was being played with. He gave a proud, short, emphatic reply to the Dutch sophistries, and at once returned home again, to cause the celebrated Navigation Act to be passed, forbidding any goods to be imported into England, except in English ships, or in the ships of the country where the articles were produced. This was well-nigh ruin to the trade of the Dutch, who were then the great carriers of the world.
In no sketch however brief of the lawyers of this disturbed time, can the name of William Prynne be entirely passed over, and yet it is not as a lawyer that his name has become memorable. Had he been a mere barrister at law he would long since have been forgotten, but he was an enthusiastic puritan of the presbyterian order, and a no less enthusiastic antiquary. He had probably read as many old records as Saint John or Selden, but had by no means their faculty of turning them to good account. He first comes prominently before us as attacking the amusements of the court, especially theatrical entertainments. For this he was proceeded against in the Star Chamber, sentenced to pay five thousand pounds and have his ears cut off; for an attack on episcopacy he was fined another five thousand pounds and sentenced once more to have his ears cut off. He afterwards bore a prominent part in the trial of Archbishop Laud. All along he continued to pour forth a deluge of pamphlets. He attacked Cromwell with such boldness, that the Protector felt called upon to imprison him in Dunster Castle, where however, his confinement was of a most easy character. He is said while there to have amused himself by arranging the Lutterell Charters, for which that noble home is famous. He took the side of Charles the Second at the Restoration, and as a reward was made keeper of the records in the Tower, a post for which he was peculiarly well fitted.
There is probably nothing which distinguishes the periods of the Commonwealth and the Protectorate more markedly from other times of successful insurrection, than the very slight alteration which the new powers introduced into the laws of England. The monarchy, it is true, was swept away, but the judges went on circuit; the courts of Chancery and common-law sat as usual, the Lords of Manors held their courts, and the justices of peace discharged their various functions as if they had been the times of profoundest peace. No confiscations took place, as had been the case in the reign of Henry the Eighth and his successor, except in cases where the owners had been engaged in what the state regarded as rebellion, and even with regard to those who had fought in what is known as the first war, almost everyone was let off by a heavy fine. A list of these sufferers may be seen in A Catalogue of the lords Knights and Gentlemen that have compounded for their Estates (London Printed for Thomas Dring at the Signe of the George in Fleet Street, neare Clifford’s Inne, 1655.) The book is imperfect and very inaccurate. This is not of much consequence however, as the documents from which it is compiled known as The Royalist Composition Papers, are preserved in the record office, and are open to all enquirers. Those who madly engaged in what is known as the second war, had their estates confiscated by three acts of parliament of the years 1651 and 1652. These were reprinted and indexed for the Index Society in 1879. These latter had their estates given back to themselves or their heirs on the Restoration. It does not seem that those who were fined, except in a very few cases had any return made to them. There have been few civil wars ancient or modern wherein the unsuccessful have been so tenderly treated. Yet sufferings of the poorer classes among the Royalists must have been very great. Next to the arbitrary conduct of the King and those immediately about his person, was the provocation which the Parliamentarians thought that the established church had given, firstly because many of the bishops and clergy maintained an extreme theory of the Divine Right of Kings, which is said first to have been taught in this country by Archbishop Cranmer. If this opinion were really accepted as more than a mere figure of flattering oratory, it made those who complied with it mere slaves to the sovereign, however tyrannical or wicked he might prove himself. The second ground of resentment was that they thought Archbishop Laud and many of the bishops and clergy, concealed Roman Catholics, “disguised Papists,” as the common expression ran. We do not believe this charge with regard to Laud or most of the others so rashly accused. We are quite sure it was not so if their writings are to be taken as a test of their feelings. Whatever may have been the truth, there is no doubt that even the more tolerant of what may be called the low-church party feared the worst. As early as 11th February, 1629, Oliver Cromwell, who was then member for Huntingdon, made a speech in which he said, “He had heard by relation from one Dr. Beard … that Dr. Alablaster had preached flat Popery at Paul’s Cross, and that the Bishop of Winchester (Dr. Neale), had commanded him as his Diocesan, he should preach nothing to the contrary.” So inflamed, however, were men’s minds that as soon as the Parliamentary party was strong enough, Laud was indicted for high treason and beheaded.
One of the first works of the Parliament when strong enough, was to abolish the Book of Common Prayer, and put a new compilation called the Directory in its place. The use of the Prayer Book was forbidden not only in public offices of religion, but in private houses also. For the first offence five pounds was to be levied, for the second ten, and for the third the delinquent was to suffer one year’s imprisonment. Whether this stringent law was rigorously inforced we cannot tell. Probably in many cases the local justices would be far more lenient to the clergy who were their neighbours, that would be the legislators at Westminster, whose passions were fanned by listening to the popular preachers. Not content with interfering with the service-book, various acts were passed relating to “Scandalous, Ignorant, and Insufficient ministers.” That the commissioners who put these acts in force removed some evil persons we do not doubt, but if John Walker’s attempt towards recovering an account of the number and sufferings of the Clergy of the Church of England, who were sequestered … in the Grand Rebellion, be not very grossly exaggerated, which we see no reason, to believe, many innocent persons must have had very hard treatment.
The marriage laws of England were in a vague and unsatisfactory state from the reign of Edward the Sixth, until the Commonwealth time. An attempt was made in 1653 to alter them. Banns were to be published either at Church or in the nearest market town on three market days, after this the marriage was to take place before a justice of peace. Many entries of marriages of this kind are to be found in our parochial registers. English was made the language of the law in 1650, but Latin was restored to the place of honour it had so long held, when the Restoration took place.
The Little Inns of Court.
THE origin of the decadent institutions located in certain grim and dreary-looking piles of building dotting the district of the Inns of Court proper, and known as the little Inns of Court, is involved in considerable obscurity. They appear to have originally held a similar position to the great seats of legal education as the halls of Oxford and Cambridge do to the Universities. But at the present time their relation to the Inns of Court proper is not very clear, and the uses they serve, otherwise than as residential chambers, are just as hard to discover. This state of mistiness concerning them has existed so long that no one now seems to know anything about them, and the evidence taken more than forty years ago by a Royal Commission did so little to clear away the dust and cobwebs hanging about them that they still remain, in the words of Lord Dundreary, “things that no fellow can understand.”
Lyon’s Inn has since that time been swept
away to make room for the new Courts of Law, without any person evincing the smallest interest in its fate. Concerning this institution all that could be learned by the Royal Commission was contained in the evidence of Timothy Tyrrell, who “believed” that it consisted of members or “ancients,” he could not say which; he believed the terms were synonymous. There were then only himself and one other, and within his recollection there had never been more than five, and they had nothing to do beyond receiving the rents of the chambers. There were no students, and the only payment made on account of legal instruction was a sum of £7 13s. 4d. paid to the society of the Inner Temple for a reader; but there had been no reader since 1832. He had heard his father say that the reader “burlesqued the things so greatly” that the ancients were disgusted, and would not have another. There was a hall, but it was used only by a debating society; and there was a kitchen attached to it, but he had never heard of a library.
New Inn appears to have been somewhat more alive than Lyon’s, though it does not seem to have done any more to advance the cause of legal education. The property is held under the
by a lease of three hundred years from 1744, at a rent of four pounds a year. Among the stipulations of the lease is one allowing the lessors to hold lectures in the hall, but none had been held since 1846, in consequence, it was believed, of the Middle Temple ceasing to send a reader. The lectures never numbered more than five or six in a year; and there is now no provision of any kind for legal education. Samuel Brown Jackson, who represented the inn before the Royal Commission, said he knew nothing concerning any ancient deeds or documents that would throw any light on the original constitution and functions of the body. If any there were, he “supposed” they were in the custody of the treasurer. The only source of income was the rents of chambers, which then amounted to between eighteen and nineteen hundred pounds a year; and the ancients have no duties beyond the administration of the funds.
Concerning the origin of Clement’s Inn, Thomas Gregory, the steward of the society, was unable to afford full information, but he had seen papers dating back to 1677, when there was a conveyance by Lord Clare to one Killett, followed by a Chancery suit between the latter and the principal and ancients of the society, which resulted in a decree under which the property so conveyed became vested in the inn. Some of the papers relating to the inn had been lost by fire, and “some of them,” said the witness, “we can’t read.” The inn, he believed, was formerly a monastery, and took its name from St. Clement. It had once been in connection with the Inner Temple, but he could find no papers showing what were the relations between the two societies, “except,” he added, “that a reader comes once a term, but that was dropped for twenty years—I think till about two or three years ago, and then we applied to them ourselves, and they knew nothing at all about it; the under-treasurer said he did not know anything about the reader, and had forgotten all about it.” It was the custom for the Inner Temple to submit three names to the ancients; and, said the witness, “we chose one; but then they said that the gentleman was out of town, or away, and that there was no time to appoint another.” But no great loss seems to have resulted thereby to the cause of legal education, for it appears that all a reader had ever done was to explain some recent Act of Parliament to the ancients and commoners, there being no students. The inn had no library and no chapel, but as a substitute for the latter had three pews in the neighbouring church of St. Clement, and also a vault, in which, said the witness, “the principals or ancients may be buried if they wish it.”
Some remarkable evidence was given concerning Staples Inn, and the more remarkable for being given by Edward Rowland Pickering, the author of a book on the subject, which publication one of the Commissioners had before him while the witness was under examination. “You state here,” said the Commissioner, “that in the reign of Henry V., or before, the society probably became an Inn of Chancery, and that it is a society still possessing the manuscripts of its orders and constitutions.” “I am afraid,” replied the witness, “that the manuscript is lost. The principal has a set of chambers which were burnt down, and his servant and two children were burnt to death, seventy years ago; and I rather think that these manuscripts might be lost.” Where the learned historian of the inn had obtained the materials for that work is a question which he does not appear to have been in a position to answer; for when asked whether he knew of any trace of a connection between the society and an Inn of Court, he replied, “Certainly, I should say not. It is sixty years since I was there, boy and all.” A very strange answer considering the statement in his book. During the sixty years he had been connected or acquainted with the society, he had never heard of the existence of a reader, or of any association of the inn with legal education or legal pursuits. The only connection claimed for the inn by the principal, Andrew Snape Thorndike, was that, when a serjeant was called from Gray’s Inn, that society invited the members of Staples Inn to breakfast. There is a singular provision respecting the tenure of chambers in this inn by the ancients. “A person,” said this witness, “holds them for his own life, and though he may be seventy years of age, if he can come into the hall, he may surrender them to a very young man, and if that young man should live he may surrender them again at the same age.” If a surrender is not made, the chambers revert to the society.
Barnard’s Inn is a very old one, and the property has been held on lease from the dean and chapter of Lincoln for more than three hundred years. The society consists of a principal, nine ancients, and five companions, which latter are chosen by the ancients; but we fail to gather from the evidence of Charles Edward Hunt, treasurer and secretary of the inn, by what principles the ancients are guided in the selection. We learn, however, that applications for admission by solicitors are not allowed. Such a thing had occurred once, but it was as long ago as 1827, and “of course,” said the witness, “we refused him, and he applied to the court, and after some difficulty he got a rule nisi for a mandamus. It came on to be tried before Lord Tenterden, and Lord Tenterden said it could not be granted; that we were a voluntary association, and the court had no jurisdiction.” The applicant seems to have based his claim on the ground that Barnard’s was an Inn of Chancery, and that, as a solicitor, he had a right to be admitted. The matter was scarcely worth contention, as the privileges of the companions are confined to dining in hall and the chance of being made an ancient, that favoured grade being entitled to “their dinners and some little fees.” The books of the society showed no trace of there ever having been any students of law connected with the inn. “The oldest thing I find,” said the witness, “is that a reader came occasionally from Gray’s Inn to read; but what he read about, or who paid him, there is no minute whatever.” He did not know when a reader last came from Gray’s Inn; he thought it was about two hundred years ago. It only remains to be told of Barnard’s Inn that it has not even a library; there had been a few books at one time, the witness told the Commission, but they were sold as useless!
Concerning the remaining little inns—Clifford’s, Symond’s, and Furnival’s—no evidence was taken. They appear to be merely residential chambers, much the same as some of those concerning which we have information in the report of the Royal Commission and the evidence given before it, and the chambers are far from being used exclusively by members of the legal profession. Nearly sixty years ago the present writer found a retired army officer occupying chambers in Clifford’s, and on a later occasion made at Symond’s Inn, the acquaintance of a curate who resided there with his wife and a young family! Concerning Furnival’s Inn, it was incidentally stated by Michael Doyle, who represented Lincoln’s Inn before the Royal Commission, that the latter society received £576 a year under a lease of the former property granted to the late Henry Peto for ninety-nine years, £500 being for rent, and the remainder in lieu of land tax. The witness was, however, unable to give any information as to the manner in which, or the date when, the property was acquired by Lincoln’s Inn.
The inquiry by the Royal Commission resulted in the recommendation of some very important changes in the constitution of the little Inns of Court and the administration of the several properties; but these, we learn, have been modified so much in their adoption as to have been of very little value. The societies have long outlived the purposes for which they were instituted, though their principals and officials seem to attach considerable importance to their continued existence. It is probable, however, that their raison d’étre being gone, they will all sooner or later go the way of Lyon’s Inn, and become things of the past.
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