28

THE GREEN BAG

annoying for these magnates to lose their goods on the road or in inns, and it was even more annoying to have always to insure before taking a journey or making a con signment. It was both simpler and cheaper to cause the courts to hold that carriers and innkeepers were insurers, and accordingly this was done. In commenting on these cases Mr. Justice Holmes has acutely and judiciously observed: "One adversely inclined might say that it was one of many signs that the law was administered in the interest of the upper classes. It has been shown above that if a man was a common carrier he could be charged for negligence without an assump sit. The same judge who threw out that intimation established in another case that he could be sued if he refused to shoe a horse on reasonable request. Common car riers and common innkeepers were liable in like case, and Lord Holt stated the principle. ' If a man takes upon him a public employ ment, he is bound to serve the public as far as the employment extends, and for refusal an 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 who followed useful callings up to the mark." The Common Law, 203. ' Not a little learning and ingenuity has been expended by learned commentators in tracing the history of the legal principles relating to carriers and innkeepers from times as remote as Rome; and doubtless under similar conditions like phenomena are developed in the law. Nevertheless, it is relevant to mark that the legal responsibility of the carrier as an insurer extended no further than was convenient to the powers who made the law. Landlords and mer chants alike suffered from losses by carriers and innkeepers on land, therefore these were held liable absolutely, and were not allowed to show that the animus was innocent; but at the point where the interests of the magnates diverged, the law lost energy.

The merchants, for ships at sea, repudiated the common law responsibility of carriers on land, and insisted that those who freighted goods upon ocean going ships should do their own insuring. They regulated their liabilities by the easy code of the ad miralty. As time went on lawyers, as is their wont, began to deduce principles from these curi ously irreconcilable decisions, one of the most amusing of which is that which was spun from the case of Leame v. Bray, 3 East, 593, decided in 1803. The plaintiff one dark night when driving, was injured by the defendant who was also driving, but on the wrong side of the road. With a singu lar impudence the defendant set up his own blameworthy animus as a defense, since he contended that he could not commit a tres pass unless he had acted wilfully. Negli gence, he maintained, could not amount to trespass. Mr. Justice Gross undertook to reconcile all the cases from the year books, and finally came to the conclusion that tres pass would always lie for damage caused by the direct act of the defendant. This de cision of Justice Gross was long cited as authority for the dogma that he who tres passes is liable absolutely, and such was the ruling, as I understand it, of the presiding judge at nisi prius in the case of Wakeman v. Robinson 1 Bing. 213. The ancient ecclesiastical canons as I have explained defined two classes of reprehen sible minds, the one active, or malevolent, the other passive, or negligent; and, accord ing to Lord Hale, it is this division which ordinarily separates the crime from the tort. The law usually infers that when a man commits an act he contemplates the natural consequences thereof, and is to be held responsible therefor, unless he can excuse himself, and making excuse is part of his case. This I take to have been the condi tion of the law touching trespass down to Wakeman v. Robinson or the time of the building of the railways, and I have now to call your attention to a beautiful example