05 - Common Law by Oliver Wendell Holmes, Jr.

Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)

Episode Transcript

Speaker 1 (00:00):
The Lecture five of the Common Law by Oliver Wendell
Holmes Junior. This libervox recording is in the public domain
the Bailey at common Law. So far the discussion has
been confined to the general principles of liability and to

(00:20):
the mode of ascertaining the point at which a man
begins to act at his own peril. But it does
not matter to a man whether he acts at his
own peril or not unless harm comes of it, and
there must always be some one within reach of the
consequences of the act before any harm can be done. Furthermore,

(00:42):
and more to the point, there are certain forms of
harm which are not likely to be suffered, and which
can never be complained of by any one except a
person who stands in a particular relation to the actor,
or to some other person or thing us. It is
neither a harm nor a wrong to take fish from

(01:04):
a pond unless a pond is possessed or owned by someone,
and then only to the possessor or owner. It is
neither a harm nor a wrong to abstain from delivering
a belle of wool at a certain time and place,
unless a binding promise has been made so to deliver it,

(01:25):
and then it is a wrong only to the promise. See.
The next thing to be done is to analyze those
special relations out of which special rights and duties arise.
The chief of them, and I mean by the word
relations relations of fact simply are possession and contract. And

(01:45):
I shall take up those subjects successively. The test of
the theory of possession, which prevails in any system of law,
is to be found in its mode of dealing with
persons who have a sing within their power but not
own it, or also the position of an owner, for
with regard to it baileeze. In a word, It is therefore,

(02:09):
as a preliminary to understanding the common law theory of possession,
to study the common law with a guard to bailees.
The state of sings, which prevailed on the border between
England and Scotland within recent times, and which is brought
back in the flesh by the ballad of the fray
O Suffert, is very like that which in an earliest

(02:32):
century left its skeleton in the folk laws of Germany
and England. Cattle were the principal property known, and cattle
stealing the principal form of wrongful taking of property of law.
There was very little, and what there was depended almost
wholly upon the party himself to enforce. The Salic law

(02:54):
of the fifth century and the Anglo Saxon laws of
Alfred are very full in their directions about following the trail.
If the cattle were come up with before three days
were gone, the pursuer had the fight to take and
keep them, subject only to swearing that he lost them
against his will. If more than three days went by

(03:17):
before the cattle were found, the defendant might swear if
he could to facts which would disprove the claimant's loss.
This procedure was, in truce, a legal procedure, but it
depended for its beginning and for its execution on the
party making the claim. From its executive nature, it could

(03:38):
hardly have been started by any other than the person
on the spot in whose keeping the cattle were. The
oaths was to the effect that the party had lost
possession against his will. But if all that a man
had to swear was that he had lost possession against
his will, it is a natural conclusion that the right

(03:59):
to take the oaths and make use of the procedure
depended on possession and not on ownership. Possession was not
merely sufficient, but it was essential. Only he who was
in possession could say that he had lost the property
against his will, just as only he who was on
the spot could follow the cattle. This, so far as known,

(04:24):
was the one means afforded by the early law of
our race for the recovery of property lost against one's will,
So that, in a word, this procedure, modeled on the
self redress natural to the case which gave rise to it,
was the only remedy was confined to the man in possession,
and was not open to the owner unless he was

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that man. To this primitive condition of society has been
traced a rule which maintained itself to later times, and
a more civilized procedure that if chattels were entrusted by
their owner, another person, the bailee and not the baylor,
was a proper party to sue for their wrongful appropriation

(05:06):
by assert. It followed that if the bailee or person
so entrusted, sold or gave the goods in his charge
to another, the owner could only look to the bailee
and could not sue this stranger. Not from any principle
in favor of trade intended to protect those who bought
in good face from parties in possession, but because there

(05:28):
was no form of action known which was open to him.
But as the remedies were all in the bailey's hands,
it also followed that he was bound to hold his
bayla harmless. If the goods were lost. It was no
excuse that they were stolen without his fault. He alone
could recover the lost property, and therefore he was bound

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to do so. In the course of time, this reason
ceased to exist. An owner out of possession could sue
the wrongful takeo of his property as well as one
who had possession, but the strict liability of the bailey remained.
As such rules do remain in the law long after
the causes which gave rise to it had disappeared, And

(06:13):
at lengths we find cause and effect inverted. We read
in Beaumanoir Ad. Twelve eighty three that if a hired
sing is stolen, the suit belongs to the baile lee
because he is answerable to the person from whom he hired.
At first, the bailey was answerable to the owner because

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he was the only person who could sue. Now it
was said he could sue because he was answerable to
the owner. All the above peculiarities reappear in the Anglo
Norman law, and from that day to this all kinds
of bai les have been treated as having possession in
a legal sense. As I shall presently show, it is

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desirable to prove the native origin of our law of Belle,
in order that, when Siri comes to be considered, modern
German opinion may not be valued at more than its
true worse. The only existing series on the subject come
from Germany. The German philosophers who have written upon law

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have known no other system than the Roman, and the
German lawyers who have philosophized have been professors of Roman law.
Some rules, which we sink clear are against what the
German civilians would regard as first principles. To test the
value of those principles, or at least to prevent the
hasty assumption that they are universal, toward which there is

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a slight tendency among English writers, it is well to
realize that we are dealing with a new system of
which philosophy has not yet taken account. In the first place,
we find an action to recover stolen property, which, like
the Salik procedure, was based on possession, not on title.

(08:00):
Bracton says that one may sue for his chattel as
stolen by the testimony of good men, and that it
does not matter whether the sing thus taken was his
own property or another's, provided it was in his custody.
The point of especial importance it will be remembered, was
the oaths. The oaths of the probi Hominez would seem,

(08:23):
from the letter of Bracton to have been that the
singh was lost at Errata, And this we are expressly
told was the fact in a report of the year
twelve ninety four. Note that where a man's chatteld is
lost will assur's durnon iundr. He may count that he
the finder toautiously detains it et cetera, and tortiously for this,

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that whereas he lost the said singh on such a
day et cetera, he the loser, came on such a
day et cetera ravinti e njour and found it in
the house of such an one, and told him et cetera,
and prayed him to restore the singh, but that he

(09:09):
would not restore it et cetera, to his damage et cetera,
and if he et cetera, in this case, the demandant
must prove his own hand the twelveth that he lost
the sink. Assuming that as the first step we find
a procedure kindred to that of the early German folklores,

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the more important question is whether we find any principles
similar to those which have just been explained. One of these,
it will be remembered, concerned wrongful transfer by the bailey.
We find it laid down in the yearbooks that if
I deliver goods to a bailey to keep from me,
and he sells or gives them to his stranger, the

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property is vested in this stranger by the gift, and
I cannot maintain trespass against him, But that I have
a good remedy against the bailey by writ of Detineux,
for his failure to return the goods. These cases have
been understood, and it would seem on the whole rightly,
not merely to deny trespass to the bailah, but any

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action whatever modern writers have added, However, the characteristically modern
qualification that the purchase must be bonafied and without notice.
It may be answered that the proposition extends to gifts
as well as to sales by the bailey, that there
is no such condition in the old books, and that

(10:39):
it is contrary to the spirit of the strict doctrines
of the common law to read it in No lawyer
needs to be told that, even so qualified, this is
no longer the law. The doctrine of the year books
must be regarded as a survival from the primitive times,
when we have seen the same rule in force, unless

(11:00):
we are prepared to believe that in the fifteenth century
they had nicer feelings for the rights of bona fide
purchases than at present. The next point in logical order
would be the degree of responsibility to which the bailey
was held as towards his baila, who entrusted him. But
for convenience, I will consider first the explanation which was

(11:23):
given of the bailey's right of action against third persons
wrongfully taking the goods from his possession. The inverted explanation
of beau Manois will be remembered that the bailey could
sue because he was answerable over in place of the
original rule that he was answerable over so strictly because
only he could sue. We find the same reasoning often

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repeated in the yearbooks, and indeed, from that day to
this it has always been one of the commonplaces of
the law. Thus, Hanford, then a judge of the common Bench,
says so Eb. Fourteen ten, if a stranger takes beasts
in my custody, I shall have a writ of trespass
against him, and shall recover the value of the beasts,

(12:10):
because I am chargeable for the beasts to my baila,
who has the property. There are cases in which this
reasoning was pushed to the conclusion that if by the
terms of the trust, the bailey was not answerable for
the goods if stolen, he would not have an action
against the sea. The same explanation is repeated to this day.

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Thus we read in a well known textbook for the
bailey being responsible to the bayla if the goods be
lost or damaged by negligence, or if he do not
deliver them up on law for demand. It is therefore
reasonable that he should have a right of action, et cetera.
In general, nowadays, a borer or hirer of property is

(12:52):
not answerable if it is taken from him against his will,
and if the reason offered were a true on it
would follow that, as he was not answerable or over
he could not sue the wrong doer. It would only
be necessary for the wrong doer to commit a wrong
so gross as to free the bailey from responsibility in

(13:12):
order to deprive him of his right of action. The
truth is that any person in possession, whether intrusted and
answerable over or not, a finder of property, as well
as a bailey, can sue anyone except the true owner,
for interfering with his possession. As will be shown more
particularly at the end of the next lecture. The baylor

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also obtained a right of action against the wrong doer
at a pretty early date. It is laid down by
counsel in a forty eight Edward the thurd in an
action of trespass by an register of cattle, that in
this case he who has the property may have a
writ of trespass, and he who has the custody another

(13:58):
writ of trespass. Per Se, sir, it is true, but
he who recovers first shall oust the other of the action.
And so it shall be in many cases, as if
tenanted by elegit is ousted. Each shall have the assize,
and if the one recover first, the writ of the
other is abated, and so here it would seem from

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other books that this was spoken of bailman's generally, and
was not limited to those which are terminable at the
pleasure of the bailor. Thus, in twenty second Edward, the
force counsels say, if I bail to you my goods
and another takes them out of your possession, I shall
have good action of trespass. Quare we d ameis? And

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this seems to have been roles understanding in the passage
usually relied on by modern courts. It was to be
expected that some action would be given to the bailor
as soon as the law had got machinery which could
be worked without help from the fresh pursuit and armed
hands of the possessor and his friends, to allow the

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bailor to sue and to give him trespass, where pretty
nearly the same thing before the action on the case
was heard of. Many early writs will be found which
show that trespass had not always the clear outline which
it developed later. The point which seems to be insisted
on in the year books is as Brooks sums it

(15:24):
up in the margin of his abridgment. The two shall
have an action for a single act, not that boat
shall have trespass, rather than case. It should be added
that the year books quoted do not go beyond the
case of a wrongful taking out of the custody of
the bailey the old case of the folk laws. Even thus,

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the right to maintain trespass is now denied where bailey
has the exclusive right to the goods by lease or lean.
Although the doctrine has been repeated with reference to bailments
determinable at the pleasure of the baila. But the modified
rule does not concern the present discussion any more than
the earlier form, because it still leaves open the possessory

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remedies to all baileys without exception. This appears from the
relation of the modified rule to the ancient law, from
the fact that Boward Park in the just cited case
of Mandez v. Williams, hints that he would have been
prepared to apply the old rule to its full extent
but for Gordon v. Harper, And still more obviously, from

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the fact that the bailey's right to trespass and troba
is asserted in the same breast with that of the baylor,
as well as proved by expressed decisions to be cited.
It is true that in Lowton v. Cross, Lord Ellenborough
ruled at nisi prius that a lender could maintain trespass
for damage done to a chattel in the hands of

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a borough, and that the case is often cited as
a sorty without remark. Indeed, it is sometimes laid down
generally in reputable text books that a gratuitous bellmann does
not change the possession, but leaves it in the belah.
That a gratuitous bailie is quasi a servant of the bailah,
and the possession of one is the possession of the other.

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And that is for this reason that although the baili
may sue on his possession, the belah has the same actions.
A part of this confusion has already been explained, and
the rest will be when I come to speak of servants,
between whom and all bailies there is a broad and
well known distinction. But on whatever ground Luten v. Cross

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may stand, if on any, it cannot for a moment
be admitted that borrowers in general have not trespassed and
trova a gratuitous deposit for the sole benefit of the
depositor is a much stronger case for the denial of
these remedies to the depository. Yet we have a decision
by the Full Court in which Lord Ellenborough also took

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part that pository has case, the reasoning implying that a
forty uri a borer would have trespassed, and this has
always been the law. It has been seen that a
similar doctrine necessarily resulted from the nature of the early
German procedure, and the cases cited in the note show

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that in this as in other respects, the English followed
the traditions of their race. The meaning of the rule
that all bailees have the possessory remedies is that in
the theory of the common law, every bailee has a
true possession, and that a bailey recovers on the strengths
of his possession just as a finder does, and is

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even a wrongful possessor may have followed damages or return
of the specific thing from a stranger to the title.
On the other hand, so far as the possessory actions
are still allowed to bailis it is not on the
ground that they also have possession, but is probably by
a survival, and which in the modern form of the
rule is an anomaly. The reason usually given is that

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a right of immediate possession is sufficient, a reason which
the notion that the bailor is actually possessed. The point
which is essential to understanding the common law theory of possession,
is now established that all bailies from time immemorial have
been regarded by the English law as possesses and entitled

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to the possessory remedies. It is not strictly necessary to
go on and complete the proof that our law of
Belmont is of pure German descent. But apart from curiosity,
the doctrine remaining to be discussed has had such important
influence upon the law of the present day that I
shall follow it out with some care. That doctrine was

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the absolute responsibility of the bailey to the baylor if
the goods were wrongfully taken from him. The early text
writers are not as instructive as might be hoped, owing
to the influence of the room law. Glanville, however, says
in terms that if a borrowed thing be destroyed or
lost in any way while in the borough's custody is

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absolutely bound to return a reasonable price. So does Bragton,
who partially repeats but modifies the language of Justinian as
to commandatum depositum and pignus, and as to the duty
of the hierar to use the care of a diligentissimus
pater familias. The language and decisions of the courts are

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perfectly clear, and there we find the German tradition kept
alive or several centuries. I begin with the time of
Edward the Second about thirteen fifteen. In Debtunue. The plea
was that the plaintiff delivered the defendant a chest locked
with his key, that the chattels were in the chest,
and that they were taken from the defendant together with

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his own goods by robbery. The replication was that the
goods were delivered to the defendant out of enclosure, and
Fitzherbert says that the party driven to that issue, which
implies that if not in the chest but in the
defendant's custody, he was liable. Lord Holt in cogsv. Bernard
denies that the chest would make any difference, But the

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old books agree that there is no delivery if the
goods are under lock and key, and this is the
origin of the distinction as the carrier's breaking bulk in
modern criminal law. In the reign of Edward the Third
the case of a pledge came up, which seems always
to have been regarded as a special bilment to keep
his one's own goods. The plaintiff was driven to apply

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a tender before the seft, which would have put an
end to the pledge and left the defendant. A general
Bailey issue was taken thereon, which confirms the other cases
by implying that in that event the defendant would be liable. Next,
I take a case of the time of Henry the
six av. Fourteen fifty five. It was an action of

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debt against the marshal of the marshal See or Jaila
of the King's bench prison for an escape of a prisoner.
Jalis in charge of prisoners were governed by the same
law as bailies in charge of cattle. The body of
the prisoner was delivered to the jailah to keep under
the same liabilities that cows or goods might have been.

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He set up in defense that enemies of the king
broke into the prison and carried off the prisoner against
the will of the defendant. The question was whether this
was a good defense. The court said that if alien
enemies of the king, for instance, the French released of
the prisoner, or perhaps if the burning of the prison

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gave him a chance to escape, the excuse would be good,
because then the defendant has remedy against no one. But
if subjects of the king broke the prison, the defendant
would be liable that they are not enemies but traitors,
and then it is implied the defendant would have a
right of action against them, and therefore would himself be answerable.

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In this case, the court got very near to the
original ground of liability, and distinguished accordingly. The person intrusted
was liable in those cases where he had a remedy
over against the wrong doer, and in which originally he
was the only person who had such a remedy, and

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on the other hand, his liability being founded on that
circumstance seized. Where the remedy seized, the jailer could not
sue the soldiers of an invading army of frenchmen, but
in theory he could sue any British subject who carried
off the prisoner. However, little it was likely that he

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would get much satisfaction in that way. A few years later,
the law is stated the same way by the famous Littleton.
He says that if goods are delivered to a man,
he shall have an action of trespass if they are
carried off, for he is chargeable over, that is, he
is bound to make the lost good to the party

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who entrusted him. In nine Edward, the fourth Danby says
if a bailey received goods to keep his his proper goods,
then robbery shall excuse him, otherwise not again. In a
later case, robbery is said not to be an excuse.
There may have been some hesitation as to robbery when

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the robber was unknown, and so the bailey had no
remedy over or even as to robbery, generally on the
ground that by reason of the felony, the bailey could
not go against either the robber's body or his estate,
for the one was hanged and the other forfeited. But
there is not a shadow of doubt that the bailey

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was not excused by an ordinary wrongful taking. If the
goods are taken by a trespasser of whom whom the
bailey has connaissance, he shall be chargeable to his baila,
and shall have his action over against his trespasser. The
same point was touched in other passages of the year books,
and the rule of law is clearly implied by the

(25:14):
reason which was given for the bailey's right to sue.
In the cases cited above, the principle was directly decided
in accordance with the ancient law. In the famous case
of Southcote v. Bennett, this was a detinue of goods
delivered to the defendant to keep safely. The defendant confessed
the delivery and set up he was robbed of the

(25:35):
goods by j s, and after argument at the bar
gordy and clench ceteris absentibus held the plaintiff ought to
recover because it was not a special bailment that the
defendant accepted them to keep as his proper goods, and
not otherwise. But it is a delivery which charges him

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to keep them at his pell and it is not
any clay in a debtinue to say that he was
robbed by one such, for he has his remedy over
by trespass or appeal to have them again. The above
from Krook's report implies what Lord Cooke expressly says that

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to be kept and to be kept safe is all one,
and those reports agree that the obligation was founded on
the delivery alone. Krook's report confirms the caution which Lord
Coke adds to his report, Note reader, it is good
policy for him who takes any goods to keep, to

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take them in special manner, still to keep them as
he keeps his own goods, or if they happen to
be stolen or purloined, that he shall not be answerable
for them for he who accepted them, or to take
them in such or the like manner, or otherwise he
may be charged by his general acceptance. Down to this time,

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at least it was clear law that if a person
accepted the possession of goods to keep for another, even
as a favor, and lost for them by wrongful taking
wholly without his fault, he was bound to make good
the lots, unless when he took possession he expressly stipulated
against such a responsibility. The attempts of Lord Holt in

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Cox v. Burnet, and of Sir William Jones in his
book on Bellman's to show that Southcote v. Bennett was
not sustained by authority were futile, as anyone who will
study the yearbooks for himself may see the same principle
was laid down seven years before by Periam C. B
in Drake v. Roumann, and Southcote's case was followed as

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a leading president without question for one hundred years. Thus
the circle of analogies between the English and the early
German law is completely. There is the same procedure for
lost property, turning on a single question whether the plaintiff
had lost possession against his will. The same principle that

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if the person entrusted with the property parted with it
to another, the owner could not recover it, but must
get his indemnity from his bailey. The same inverted explanation
that the bailey could sue because he was answerable over
but the substance of the true doctrine in the rule
that when he had no remedy, he was not answerable.

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And finally, the same absolute responsibility for loss, even when
happening without fault on the part of the person intrusted.
The last and most important of these principles is seen
in force as elite as a reign of Queen Elizabeths.
We have now to follow its later fortunes. A common

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carrier is liable for goods which are stolen from him
or otherwise lost his charge, except by the act of
God or the public enemy. Two notions have been entertained
with a regard to the source of this rule, one
that it was borrowed from the Roman law, the other
that it was introduced by custom as an exception to

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the general law of Belmont in the reigns of Elizabeth
and James. The first. I shall try to show that
both these notions are wrong, that this strict responsibility is
a fragmentary survival from the general law of Belmont, which
I have just explained. The modifications which the old law
has undergone were due in part to a confusion of

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ideas which came the displacement of detinue by the action
on the case, in part to conceptions of public policy
which were read into the precedence by Lord Holt, and
in part to still later conceptions of policy which have
been read into the reasonings of Lord Halt by later judges.
Southcote's case was decided in the forty third year of

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Queen Elizabeth A. D. Sixteen o one. I think the
first mention of a carrier pertinent to the question occurs
in wood Life's case, decided four or five years earlier
thirty eight or thirty nine eliz a d. Fifteen ninety
six or fifteen ninety seven. It was an action of

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account for merchandise delivered to the defendant. It would seem
as a factor per merchandiser clearly not as a carrier
play robbery at c with defendant's own goods. Gordy, one
of the judges who decided Southcote's case, sought the plea bad,
but Popham c J. Said that though it would not

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be a good plea for a carrier because he is
paid for his carriage, there was a difference in this
respect between carriers and other servants and factors. This is
repeated in the Southcote's case and appears to involve a
double distinction, first between paid and unpaid baileyes, next between

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Bailey's and servants. If the defendant was a servant, not
having control over the goods, he might not fall within
the law of Belmont, and factors are treated on the
footing of servants in the early law. The other diversity
marked the entrance of the doctrine of consideration into the
law of Belmont consideration originally meant quid pro cro as

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will be examined hereafter. It was thus dealt with in
Doctor and Student, when the principal was still young. Chief
Justice Popham probably borrowed his distinction between paid and unpaid
baileyes from that work, where common carriers are mentioned as
an example of the former class. A little earlier reward

(31:54):
made no difference. But in wood Life's case, in reply
to what the Chief Justice had said, Gordy cited the
case of the Marshal of the King's Bench stated above,
whereupon Popham fell back on the old distinction that the
jailer had a remedy over against the rebels, but that
there was no remedy over in the case at Bar.

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The other cases relied on were some of those on
General Belmont collected above, the same ascieties in short on
which Southcote's case was founded. The principle adopted was the
same as in Southcote's case, subject only to the question
whether the defendant fell within it. Nothing was said of

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any custom of the realm, or ever had been in
any reported case before this time, and I believe this
to be the first instance in which carriers are in
any way distinguished from any other class of persons entrusted
with goods. There is no hint of any special obligation
peculiar to them in the old books, and it certainly

(32:58):
is not true that this case introduced one. It will
be noticed, with reference to what follows, that Popham does
not speak of common carriers, but of carriers. Next came
Southcote's case forty three illiz Ad. Sixteen oh one, which
presented the old law pure and simple, irrespective of reward

(33:21):
or any modern innovation. In this and the earlier instances
of loss by theft, the action was detony counting, we
may presume simply on a delivery and wrongful detainer. But
about this time important changes took place in the procedure
usually adopted, which must be explained. If the chattel could

(33:43):
be returned in specie, detinue afforded no satisfaction for damage
which it might have suffered through the bailey's neglect. The
natural remedy for such damage was the action on the case.
But before this could be made entirely satisfactory, there were
certain difficulties to be overcome. The neglect which occasioned the

(34:05):
damage might be a mere omission, and what was there
akin to trespass in a nonfeasance to sustain the analogy
upon which trespass on the case was founded. Moreover, to
charge a man for not acting, you must show that
it was his duty to act. As cleadings were formally construed,

(34:26):
it would not have been enough to allege that the
plaintiff's goods were damaged by the defendant's negligence. These troubles
had been got over by the well known words super
say assumpsit, which will be explained later asumsit did not
for a long time become an independent action of contract,

(34:46):
and the allegation was simply the inducement to an action
of tort. The ground of liability was that the defendant
had started upon the undertaking, so that his negligent omission
which let in the damage, could be connected with his
acts as a part of his dealing with the singh
Or we shall find Lord Holt recognizing this original purport

(35:10):
of assumpsit when we come to Cox v. Burnard. Of course,
it was not confined to cases of Belmont. But there
was another way besides this by which the defendant could
be charged with a duty and made lab or in case,
and which, although less familiar to lawyers, has a special
bearing on the law of carriers in later times. If

(35:33):
damage had been done or occasioned by the act or
omission of the defendant in the pursuit of some of
the more common callings, such as that of a farrire,
it seems that the action could be maintained that laying
an assumpsit on the allegation that he was a common farrire.
The latter principle was also wholly independent of Belmont. It

(35:55):
expressed the general obligation of those exercising a public or
common business to practice their art on demand and show
skill in it. For, as fitz Herbert says, it is
the duty of every artificer to exercise his art rightly
and truly as he ought. When it had thus been

(36:16):
established that case would lie for damage when occasioned by
the omission, as well as when caused by the act
of the defendant, there was no reason for denying it,
even if the negligent custody had resulted in the destruction
of the property. From this it was but a step
to extend the same form of action to all cases

(36:36):
of loss by a bailey, and so avoid the defendant's
right to wage his law detinue the primitive remedy retained
that mark of primitive procedure. The last extinction was made
about the time of Southcote's case. But when the same
form of action thus came to be used alike for

(36:57):
damage or destruction by the baby's neglect and for lots
by a wrong duer against whom the bailey had a
remedy over, a source was opened for confusion with regard
to the foundation and nature of the defendant's duty. In truth,
there were two sets of duties, one not peculiar to

(37:18):
bailey's arising from the assumpsit or public calling of the
defendant has just explained, the other the ancient obligation peculiar
to them as such, of which Sauscote's case was an example.
But any obligation of a bailey might be conceived of
as part of a contract of Belmont. After a sumicit

(37:38):
had become appropriated to contract the doctrine of consideration had
been developed booths of which had happened in Lord Cooke's time,
it seemed unnecessary to distinguish nicely between the two sets
of duties, just mentioned provided a consideration and special promise
could be alleged. Furthermore, as formerly the defendant's public calling

(38:01):
had the same effect as an as subsit for the
purpose of charging him in TALT, it seems now to
have been thought an equally good substitute for a special
promise in order to charge him in assumbsit. In Dre's
the head, the argument was that to charge one in
assim sit, you must show either his public calling at

(38:21):
the time of the delivery or a special promise on
sufficient consideration. This argument assumes that a bailey who received
goods in the course of public employment, for instance, as
a common carrier, could be charged in this form of
action for a breach of either of the above sets
of duties by alleging either his public calling or his

(38:43):
reward and a special promise. It seems to have been admitted,
as was repeatedly decided before and since that case, that
one who is not a common carrier could have been
charged for non delivery in a special action, that is,
in case as distinguished from a subset. Suppose and next

(39:04):
that the plaintive sued in case for a talt as
before the breach of duty complained of might be such
damage to property as had always been sued for in
that form of action, or it might be a loss
by theft for which detinue would formerly have been brought,
and which fell on the Bailey only by reason of

(39:24):
the Belmont. If the goods had been stolen, The Bailey's
liability rested neither on his common calling, nor on his
assumpsit and his neglect, but arose from the naked facts
that he had accepted a delivery and that the goods
were gone. And in such cases it ought to have
been enough to allege those facts in the declaration. But

(39:46):
it was very natural that the time honored foundations for
the action on the case in its more limited application,
should still be laid in the pleadings, even after the
scope of the action had been enlarged. We shall have
tied to inquire later whether the principles of Southcote's case
were not also extended in the opposite direction to cases

(40:08):
not falling within it. The reasons for the rule which
it laid down had lost their meaning centuries before Gordy
and Clench were born, when owners had acquired the right
to sue for the wrongful taking of property in the
hands and the rule itself was a dry precedent likely
to be followed according to the letter, because the spirit

(40:28):
had departed it had begun to totter when the reporter
cautioned Baileys to accept in such terms as to get
rid of it accordingly. Although that decision was the main
authority relied on for one hundred years between it and
crogsfeet Bernard, whenever a peculiar responsibility was imposed upon Bailey's

(40:50):
we find that sometimes an assumpsit was laid as in
the early precedence, or more frequently that the bailey was
alleged to be a common bargeman or carrier or the like,
without much reference to the special nature of the taught
in question, and that the true bearing of the allegation
was sometimes lost sight of at first. However, there were

(41:11):
only some slight signs of confusion in the language of
one or two cases, and if the duty was conceived
to fall within the principle of Southcote's case, pleaders did
not always allege the common or public calling, which was
held unnecessary, but they also adopted other devices from the
presidents in case or to strengthen an obligation which they

(41:35):
did not well understand Chief Justice Popham had sanctioned a
distinction between paid and unpaid babies. Hence it was deemed
prudent to lay a reward. Negligence was of course averred,
and finally it became frequent to allege an obligation by
the law and custom of the realm. This last deserves

(41:56):
a little further attention. There is no ris in the
register alleging any special obligation of common carriers by the
custom of the realm. But the writ against innkeepers did
lay duly by the law and custom of England, and
it was easy to adopt the phrase. The allegation did
not so much imply the existence of a special principle

(42:19):
a state a proposition of law in the form which
was then usual. There are other writs of trespass which
allege a common law duty in the same way, and
others again setting forth a statutory obligation. So the judges
were sworn to execute justice according to law and the
custom of England. The duties of a common carrier, so

(42:43):
far as the earlier evidence goes, were simply those of
babies in general, coupled with the liabilities generally attached to
the exercise of a public calling the word common addressed
itself only to the latter point. As has been shown.
This is further illustrated by the fact that when the

(43:04):
duty was thus set force, it was not alleged as
an obligation peculiar to common carriers as such, but was
laid as a custom of law of common hyman or letamen, etc.
According to the business of the party concerned. It will
be noticed that Chief Justice Halt in Cogsby Bernard states

(43:24):
the liability as applicable to all bailies for reward exercising
a public employment, and mentions common hymen and masters of ships,
alongside of not as embraced under common carriers. It will
also be noticed, in the cases before that time, that
there is no settled formula for the obligation in question,

(43:45):
but that it is that force in each case that
the defendant was askable for what he was said to
have done or omitted in the particular instance. Returning now
to the succession of the cases which the milind is
the next in order up eleven Jack one ab. Sixteen thirteen.
It was an action on the case taught against a

(44:07):
common hoyman in Krook's report nothing is said of custom
but the declaration of theirs, that the defendant was a
common barchment, that the plaintiff delivered him a portmanteau et
cetera to carry and pave him for it, and that
the defendant term negligenta Custodivit said it was taken from
him by persons unknown, Like the second count in mares

(44:31):
be Slew below. The plea was demurred to and adjudged
for the plaintiff, a writ of error being brought. It
was a sign that this action lies not against a
common barchment without special promise, But all the justices and
barons held that it well lies as against a common
carrier upon the land. If we follow this report, it

(44:53):
seems at the first glance that importance was attributed to
the common calling. But as the loss was clearly within
the principle of Southcote's Kits, which required neither special promise
nor common calling for its application, and which remained unquestioned
law for three quarters of a century later, the court
must have referred to the form of action employed case,

(45:16):
and not to the liability of the defendant in some
form of action detinue. The objection was that this action
lies not not that the defendant was not liable without
special promise. Even thus narrowed, it rather countenances the notion
that allegations which were necessary to charge a man for
damage happening through his neglect in the more ancient and

(45:39):
familiar use of this action were also necessary in this
new extension of it to a different class of wrongs.
As it was now pretty clear that case would lie
for non seasons, the notion was mistaken, and we shall
see that it was denied in subsequent decisions. According to
Hobart's report, it was alleged that the defendant was a

(46:02):
common hyman to carry goods by water for hire, et cetera.
That by the custom of England, such carriers ought to
keep the goods, et cetera, so as they should not
be lost by the default of them or their servants,
et cetera. And it was resolved that though it was
laid the custom of the realm, it indeed it is

(46:22):
common law. This last resolution may only mean that the
custom of the realm and the common law are the
same thing as had been said concerning innkeepers long before.
But the law as to innkeepers, which was called the
custom of the realm in the wret had somewhat the
air of a special principle extending beyond the law of Balman,

(46:44):
inasmuch as their liability extended to goods within the inn
of which they had not the custody, and the court
may have meant to make an antithesis between such a
special principle and the common law or general law of
Belmont governing the present case. Whatever doubt some of Krook's
language might raise standing alone, the fact remains indisputable that,

(47:07):
for nearly a century from Woodlife's case, the liabilities of
carriers for loss of goods, whether the custom of the
realm or the defendant's common calling was alleged or not,
was placed upon the ausority, and was intended to be
decided on the principle of Southcote's case Simmons v. Darknel,
four car Ie a b. Sixteen twenty eight, is precisely

(47:30):
in point. The declaration was that by the common law,
every lightenment ought so to manage his lighter, that the
goods carried therein should not perish, And although no promise laid,
it seemed to the court that the plaintiff should recover,
and not alleging that defendant was common lightenment was no
harm Hide c J. Delivery makes the contract. This did

(47:54):
not mean the delivery was a good consideration for a promise,
But as was laid down in Southcote's case, the delivery
without his special acceptance to keep only as one's own goods,
found the Bailey to keep safely, and therefore made it
unnecessary to allege either an assumpsit or the defendant's common calling.

(48:14):
Whitlock J. Called attention to the fact that the action
was taught, not contract Ionsekass Southcote's case Free Seat. The
same rule is stated as developments in general the same
year by Sergeant Maynard arguendo in Williams v. Hyde, again

(48:35):
citing Southcote's case. In Kenwig v. Eggleston twenty four car
Ie ab sixteen forty eight case against the country carrier
for not delivering a box et cetera, of which he
was robbed, nothing was said about custom nor being a
common carrier unless the above words imply that he was.

(48:57):
But it was laid down, as in Southcote's case, that
it must come on the carrier's part acceptance if he
would lessen his liability as bailey. Nichols v. Moore thirteen
carr iiO av. Sixteen sixty one was case against a
water carrier between Hull and London, laying a delivery to

(49:17):
him at York. It was moved in arrest of judgment
that the defendant did not undertake to carry the goods
from York to Hull. But notwithstanding this, per totem curium,
the defendant shall be charged on his general a seat
at York. According to Southcourt's case, it is fair to
mention that in Matthews v. Hopkins, seventeen car two the

(49:41):
declaration was on the custom of the realm against a
common carrier, and there was a motion in arrest of
judgment because there was a misrecital of the custom of
the realm, and the defendant was not alleged to have
been a carrier at the time of the receipt, and
also because counts in Trova and in Case on the
Custom were joined, judgment was arrested. It would seem on

(50:04):
the latter ground. But the court continued. And although the
declaration may be good without recital of the custom of
the realm, as Hobart says, still it is the better
way to recite it. We now come to the Great
Case of Morse v. Slew twenty three and twenty four
Car two eight sixteen seventy one sixteen seventy two. This

(50:29):
was an action against the master of a ship lying
in the River Thames for the loss of goods entrusted
to him. The goods in question were taken away by robbers,
and it was found that the ship had the usual guard.
At the time, there seemed to have been two counts,
one on the Law and Custom of England one then
one hundred ninety for masters of ships carefully to govern,

(50:52):
preserve and defend goods shipped so long as said ship
should remain in the River Thames to Kemp eight hundred
and sixty To keep safely goods shipped to be carried
from London beyond sea without loss or subtraction, eat a
quad pro defectu of them, they may not come to
any damage one vent one hundred ninety to keep safely

(51:16):
goods delivered to them, to carry dangers of the sea,
excepted to Levins sixty nine. The exception last was perhaps
drawn by the reporter from the usual bills of leading
referred to in argument. The second count, which is usually overlooked,
was a special count on delivery and being stolen by
his neglect. The case was twice argued, and all the

(51:40):
reports degree as far as they go in their statements
of the points insisted on hopt for the plaintiff maintained
one that the master receives goods generally, citing Southcote's case,
and that in only guardian in sockage who has the
custody by law, who factor who is servant at the

(52:00):
master's disposed and so cannot take care, are exempt. Two
that the master has a reward for his keeping and
is therefore a proper person to be sued. Three that
the master has a remedy over citing the case of
the Marshal of the King's Bench. That the mischief would
be great if the master were not liable, as merchants

(52:23):
put their trust in him, and no particular default be
shown as appears by the bill of leading, and finally
that neglect appeared. On the other side, it was urged
that no neglect was found and that the master was
only a servant, so that if any one was liable,
the owners were. It was also suggested that as there

(52:44):
would have been no liability if the goods had been
taken at sea, when the case would have fallen within
the admiralty law. It was absurd that a different rules
should govern the beginning of the voyage from would have
governed the rest of it. On the second argument, it
was again maintained for the plaintiff that the defendant was
liable at the common law on the general blment, citing

(53:06):
Southcote's case, and also that by the Roman and maritime
law it was liable as a public carrier and master
of a ship. The opinion of the court was delivered
by Chief Justice Hale. It was held that the ship
being within the body of the county, the admiralty law
did not apply, or, according to one Mont eighty five

(53:28):
Note A, the master could not avail himself of the
rules of the civil law, by which masters are not
chargeable pro damna fatally that the master was liable to
an action because he took a reward, that he might
have made a caution for himself which he omitting and
taking in the goods. Generally he should answer for what happens.

(53:51):
The case of Kenwig v. Eggleston seems also to have
been referred to. It was further said that the master
was rather an officer than a servant, and in effect
received his wages from the merchant who paid freight. Finally,
on the question of negligence, that it was not sufficient
to have the usual number of men to guard the ship,

(54:12):
but that it was neglect not to have enough to
guard the goods unless in case of the common enemies.
Citing the case of the Marshal, which it will be remembered,
was merely the principle of Southcots case and the common
law of Belmont in another form. It will be observed
that this case did not go on any special custom,

(54:33):
either as to common carriers or shipmasters, but that all
the arguments in the opinion of the court assumed that
if the case was to be governed by the common
law and not by the milder provisions of the civil
law relied on for the defense, and if the defendant
could be regarded as a bailey and not merely a
servant of the owners, then the general law of Belmont

(54:54):
would apply, and the defendant would be charged, as in
Southcots case, by his deb general acceptance. It can hardly
be supposed, however, that so enlightened a judge as Sir
Matthew Hale would not have broken away the yearbooks. If
a case had arisen before him, where property had been
received as a pure favor to the plaintiff without consideration

(55:17):
or reward, and was taken from the defendant by robbery.
Such a case was tried before Chief Justice Pemitone, and
he very sensibly ruled that no action lay, declining to
follow the law of Lord Coke's time to such extreme
results thirty three Car two ad. Sixteen eighty one. About

(55:39):
the same time, the defendant's common calling began to assume
a new importance. The more important alternative allegation the assumps.
It had the effect in the end of introducing the
not intrinsically objectionable doctrine that all duties arising from abelmut
are founded on contract. But this allegation, having none now

(56:00):
a special action to which it had given rise, was
not much used where the action was taught, while the
other verment occurs with increasing frequency. The notion was evidently
gaining ground that the liability of common carriers for loss
of goods, whatever the cause of the loss might be,
arose from a special principle peculiar to them and not

(56:22):
applicable to baillies in general. The confusion of independent duties
which had been explained, and of which the first trace
was seen, in which the miland resumed to become complete.
Holt became Chief Justice. Three of the cases in the
last note were rulings of his, and Laine v. Cotton

(56:42):
thirteen Will three eighty seventeen oh one. He showed his
disapproval of Southcote's case and his impression that the common
law of Belmont was borrowed from Rome. The overthrow of
Southcote's case and the old common law may be said
to date from Cox v. Bernard to an AD seventeen
o three. Lord Holt's famous opinion in the latter case

(57:06):
quotes largely from the Roman law as it filtered to
him through Bracton, But whatever influence that may have had
upon his general views, the point decided, and the distinctions
touching common carriers were of English growths. The action did
not sound in contract. The gauze was for damage to
the goods, and the plaintiff sued for a tort, laying

(57:28):
an assumpsit by way of inducement to a charge of negligence.
As in the days of Henry the six. The plea
was not guilty, but after a verdict for the plaintiff,
there was a motion in arrest of judgment, but that
it was not alleged in the declaration that the defendant
was a common porter, nor a verb that he had
anything for his pains. Consideration was never alleged or thought

(57:52):
of in the primitive assumsit, but in the modern action
of contract, in that form it was required. Hence it
was infirm that where that anassumsit was laid, even in
all action of taught for damage to property, it was
the allegation of a contract, and that a consideration must
be shown for the undertaking. Although the contrary had been

(58:13):
decided in the reign of Queen Elizabeths but the motion
did not prevail, and judgment was given for the plaintiff.
Lord Holt was well aware that the use of anassumsit
was not confined to contract. It is true that he said,
the owner's trusting the defendant with the goods is a
sufficient consideration to oblige him to a careful management or

(58:36):
to return them. But this means, as distinguished from a
consideration sufficient to oblige him to carry them, which he
thought the defendant would not have been bound to do.
He then expressly says, this is a different case. For
assumpsit does not only signify a future agreement, but in
such cases as this, it signifies an actual entry upon

(58:59):
the singh and taking the trust upon himself. Following the
earlier cases in the yearbooks. This was enough for the decision,
and the rule in Southcote's case had nothing to do
with the matter. But as the duty of common carriers,
by reason of their calling, was now supposed to extend
to all kinds of losses, and the doctrine of Southcote's

(59:20):
case was probably supposed to extend to many kinds of damage,
it became necessary in a general discussion to reconcile or
elect between the two principles. The Chief Justice therefore proceeded
to distinguish between baileies for reward exercising a public employment,
such as common carriers, common hoymen, masters of ships, et cetera,

(59:43):
and other baileies. Denied the rule in Southcote's case as
to the latter, said that the principle of strict responsibility
was confined to the former class and was applied to
them on grounds of public policy, and that factors were
exonerated not because they were were mere servants, as had
always been laid down among others by himself in arguing

(01:00:05):
moose v Slew. But because they were not within the
reason of the rule, the reader who has followed the
argument so far will hardly mean to be convinced that
this did not mean the adoption of the praetor's edict.
There is further evidence at hand, if required. In the
first place, as we have seen, there was a century
of precedents ending with moose v Slew, argued by Holt himself,

(01:00:30):
in which the liability of masters of ships hoymen, Caius,
et cetera, had been adjudicated. Morse v Slew is cited
and relied on, and there is no hint of dissatisfaction
with the other cases. On the contrary, they furnished the
examples of Bailey's for reward exercising a public calling. The

(01:00:50):
distinction between Bailey's for reward and others is chief Justice Pophams.
The latter qualification exercising a public calling all so English,
as has partly appeared already, and as will be explained
further on in the next place, the strict rule is
not confined to nowte Kupanes and stabulari, nor even to

(01:01:13):
the common carriers, but is applied to all baileyes for
reward exercising a public calling. In the next place, the
degree of responsibility is precisely that of baileys in general,
as worked out by the previous decisions, but quite alike
and much more severe than that imposed by the Roman law,
as others have observed. And finally, the exemption from liability

(01:01:38):
for acts of God or the public enemy is characteristically English,
as will be proved further on. But it has been
partially shown in this lecture that the law of today
has made the carrier's burden heavier than it was in
the time of the yearbooks. Southcote's Kates and the earlier
sorties which have been cited all refer to a loss

(01:01:59):
by robbery, left or trespass, and hold the bailey liabel,
where in theory at least he has a remedy over.
It was with reference to such cases, as has been seen,
that the rule arose, although it is not improbable that
it would have been applied to an unexplained loss. The
writ against innkeepers reads absquare subtraccioni sway amisione Coustadirre. In

(01:02:24):
later times the principle may have been extended from loss
by ceft to loss by destruction. In Simmons v. Darknal
four car I, already cited as decided on the authority
of Suskote's case, the goods were spoiled, not stolen, and
probably had not even perished in specie. Before this time

(01:02:45):
the old rule had become an arbitrary president followed according
to its form with a little sort of its true intent.
The language of COG's v. Burnant is that the law
charges the person thus intrusted to carry goods as against
all events but acts of God and the enemies of
the king. This was adopted by solemn decision in Lord

(01:03:08):
Mansfield's time, and it is now settled that the common
carrier as liable for all losses which do not fall
within the accepted cases. That is to say that he
has become an insurer to that extent, not only against
the disappearance or destruction, but against all forms of damage
to the goods, except as excepted above. The process by

(01:03:32):
which this came to parts has been traced above, but
a few words may be added here. The yearbooks, even
in dealing with the destruction as distinguished from the conversion
of chattels in the hands of Bailey always state his
liability is based upon his font, although it must be
admitted that the language is used alio in tuitu. A

(01:03:54):
jettison in tempest seems to have been a good plea
for a factor in the time of Edwin Dessert, but
that cannot be relied on that an analogy. The argument
from the Marshal's case is stronger. There it appears to
have been thought that burning of the prison was as
good an excuse for an escape as release by alien enemies.

(01:04:16):
This must refer to an accidental fire, and would seem
to imply that he was not liable in that event,
if not in form. The writs in the Register against
bailies to keep or carry goods all have the general
allegation of negligence, and so do the order precedence of
declarations so far as I have observed, whether stating the

(01:04:37):
custom of the realm or not. But a Bailey was
answerable for goods wrongfully taken from him, as an innkeeper
was a good stolen from his in irrespective of negligence.
It is true that the Marshal's case speaks of his
negligent keeping when the prisoners were released by rebels, although
that was far less likely to result from negligence. On

(01:05:00):
would think that a fire in the prison, and that
after Lord Coke's time, negligence was alleged, although the goods
had been lost by wrongful taking. So the writ against
innkeepers is prode effect to hudus mardi hospitatorum. In these instances,
neglect only means of failure to facto to keep safely.

(01:05:21):
As was said at a much later date, everything is
a negligence in a carrier or whoyman that the law
does not excuse. The allegation is simply the usual allegation
of actions on the case, and seems to have extended
itself from the earlier declarations for damage. Would case supplanted detinue,
and the use of the former action became universal, it

(01:05:44):
could hardly have been immaterial to the case for which
it was first introduced. But the short reason for disbelieving
that there is any want in the old law for
making the carrier and insure against damage is that there
seemed to be no early cases in which babies hold
to such a responsibility, and that it was not within
the principle on which they were made answerable for loss

(01:06:07):
by seft. Having traced the process by which a common
carrier has been made an insurer, it only remains to
say a word upon the origin of the admitted exceptions
from the risk assumed. It has been seen already our
loss by the public enemy came to be mentioned by
Chief Justice Holt. It is the old distinction taken in

(01:06:29):
the Marshal's case, that there the baiby has no remedy
over With regard to the act of God, it was
a general principle, not peculiar to carriers nor to baillies,
that a duty was discharged if an act of God
made it impossible of performance. Lord Coke mentions the case
of jettison from a gravesend barge and another of a

(01:06:52):
party bound to keep and maintain sea wars from overflowing,
as subject to the same limitation, and a similar statement
as to contracts in general will be found in the yearbooks.
It is another form of the principle which has been
laboriously re argued in our own day, that parties are
excused from the performance of a contract which has become

(01:07:13):
impossible before breach from the perishing of the thing, or
from change of circumstances, the continued existence of which was
the foundation of the contract, provided there is no warranty
and no fault on the part of the contractor whether
the Act of God has now acquired a special meaning
with regard to common carriers may be left for others

(01:07:33):
to consider. It appears from the foregoing evidence that we
cannot determine what classes of Bailey's are subject to the
strict responsibility imposed on common carriers by referring to the
Praetor's edict and then consulting the lexicons under noirte Carpones
or stabulari. The question of president is simply to what

(01:07:56):
extent the old common law of Belmont still survives. Can
only answer it by enumerating the decisions in which the
old law is applied, and we shall find it hard
to bring them together. Under a general principle, the rule
in Southcote's case has been done away with for bailies
in general, that is clear. But it is equally clear

(01:08:17):
that it has not maintained itself. Even within the limits
of the public policy invented by Chief Justice Holt. It
is not true today that all bailies for reward exercising
a public calling are insurers. No such doctrine is applied
to grain elevators or deposit vaults. How Lord Holt came

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to distinguish between Bailey's per reward and others has been
shown above. It is more pertinent here to notice that
his further qualification exercising a public calling was part of
a protective system which has passed away. One adversely inclined
might say that it was one of many signs that
the law was administered in the interest of the upper classes.

(01:09:00):
It has been shown above that if a man was
a common barrier, he could be charged for negligence without
an assimsit. The same judge who threw out that intimation
established in another case that he could be sued if
he refused to shew a horse on reasonable request. Common
carriers and common innkeepers were liable in a like case,

(01:09:21):
and Lord Holt stated the principle if a man takes
upon him a public employment, he is bound to serve
the public as far as the employment extends, and for
refusal and action lies. An attempt to apply this doctrine
generally at the present day would be thought monstrous, but
it formed part of a consistent scheme for holding those

(01:09:41):
who followed useful callings up to the mark. Another part
was the liability of persons exercising a public employment for
loss or damage, enhanced in cases of balment by what
remained of the rule. In Thouscote's case. The scheme has
given way to more liberal notions, but the disjector member
still move. Lord Mansfield stated his views of public policy

(01:10:05):
in terms not unlike those used by Chief Justice Holt
in Cox v. Burnet, but distinctly confines their application to
common carriers. But there is a further degree of responsibility
by the custom of the realm, that is, by the
common law, a carrier is in the nature of an insurer.
To prevent litigation, collusion, and the necessity of going into

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circumstances impossible to be unraveled, the law presumes against the carrier,
unless et cetera. At the present day, it is assumed
that the principle is thus confined, and the discussion is
transferred to the question who are common carriers? It is
thus conceded by implication that Lord Holt's rule has been abandoned.

(01:10:52):
But the trouble is that with it disappear not only
the general system which we have seen that Lord Halt entertained,
but the special reasons repeated by Lord Mansfield. Those reasons
apply to other bailies as well as to common carriers. Besides,
hooymen and masters of ships were not originally held because

(01:11:12):
they were common carriers, and they were all three treated
as coordinate species, even in Cogsfleet Burnet, where they were
mentioned only. As so many instances of bailies exercising a
public calling, we do not get a new and single
principle by simply giving a single name to all the
cases to be accounted for. If there is a sound

(01:11:33):
rule of public policy which ought to impose a special
responsibility upon common carriers, as those words are now understood,
and upon no others, it is never yet being stated. If,
on the other hand, there are considerations which apply to
a particular class among those so designated, for instance, to railroads,

(01:11:54):
who may have a private individual at their mercy, or
exercise a power too vast the common welfare, we do
not prove that the reasoning extends to a general ship
or a public cab by calling all three common carriers.
If there is no common rule of policy, and common
carriers remain a merely empirical exception from general doctrine. Courts

(01:12:17):
may well hesitate to extend the significance of those words. Furthermore,
notions of public policy which would not leave parties free
to make their own bargains are somewhat discredited in most
departments of the law. Hence, it may perhaps be concluded that,
if any new case should arise, the degree of responsibility

(01:12:38):
and the validity and interpretation of any contract of balment
that there may be should stand open to argument on
general principles, and that the matter has been set at large,
so far as early President is concerned. I have treated
of the law of carriers at greater lengths than is proportionate,
because it seems to me an interesting exam of the

(01:13:00):
way in which the common law has grown up, and
especially because it is an excellent illustration of the principles
laid down at the end of the first lecture I
now perceived to the discussion, for the sake of which
an account of the law of Belmont was introduced, and
of which an understanding of that part of the law
is a necessary preliminary end of a lecture five