Page:Harvard Law Review Volume 10.djvu/392

366 HARVARD LAW REVIEW. following introduction to his decision in a nisi priiis action for illegal restraint, in which it was claimed that the landlord had broken an outer door.^ "The doctrine of the inviolability of the outer doors of a house and its precinct has long been established by English law. The principle is one which carries us back in imagination to wilder times, when the outer door of a house, or the outer gates and enclosures of land, were an essential protection, not merely against fraud, but violence. The propo- sition that a man's house is his castle, which was crystallized into a maxim by the judgment in Semayne's case,^ and by Lord Coke, dates back to days far earlier still, when it was recognized as a limitation imposed by law on all process except that which was pursued at the King's suit and in his name. A landlord's right to distrain for arrears of rent is itself only a survival of one among a multitude of distraints which, both in England and other countries, belonged to a primitive period when legal procedure still retained some of the germs of a semi- barbarous custom of reprisals, of which instances abound in the early English books, and in the Irish Senchus Mor. Later, all creditors and all aggrieved persons who respected the King's peace, the sheriff in a civil suit, and the landlord in pursuit of his private remedy for rent and services, were both of them held at bay by a bolted door or barred gate. To break open either was to deprive the owner of pro- tection against the outer world for his family, his goods and furniture, and his cattle." His history of the common law doctrine as to restraint of trade in Maxim Nordenfelt Gun & Ammunition Co. v. Nordenfelt,'^ is his most elaborate contribution to the historical method. Fin- lay V, Chirney,^ he gives a graphic history of the maxim actio per- sonalis moritiir cum persona. By cotnparing this opinion with the wholly practical opinion of the Master of the Rolls in the same case, one may observe the advantage of the historical point of view. In Steinman v, Angier Line,^ where the issue was the lia- bility under the bill of lading of a ship owner for goods stolen by the stevedore's men during stowage, Lord Bowen clears up the construction of the exceptions in the bill of lading by a sketch of the history of the introduction into English policies and Eng- lish bills of lading of special provisions as to ** thieves." ^ 1 American Concentrated Must Corporation v. Hendry, 62 L. J. Q. B. 389. 2 5 Co. Rep. 91. 3 [1893] I Ch. 631. * 20 Q. B. D. 502. 6 [1891] i Q. B. 621. 6 Other specimens of this method may be found in Brunsden v. Humphrey, 14 Q. B. D. 141 ; Dalton v. Angus, 6 App. Cas. 779; Dashwood v. Magniac, [1891] 3 Ch. 306; Hannay v. Smurthwaite, [1893] 2 Q- B. 422.