26
THE GREEN BAG
the same phenomena appear, and precisely the same analysis of the operation of mechanical causes will reconcile the contra dictions of the law. I will take, for illus tration, trespass. As you know, trespass may be viewed as a crime or as a tort, and normally, that is to say when the power of the litigants is nearly balanced, the law holds the human being responsible to others for voluntary acts resulting in injury. Therefore, the fact of a trespass by an individual to the person of another being established, the issue is, animus. Scott v. Shepard is in point 2 Wm. Blackstone, 892. The plaintiff having been injured by a squib, the court was called upon to decide who, among several who had thrown it, was liable for the damage. The judges held him to be liable whose volition had concurred with the act. Suppose now, on the contrary, the con ditions to be abnormal, that is, suppose one litigant to belong to a favored, the other to a servile class; you will find the law favoring the stronger precisely in the ratio of his strength. The strong will exact as much and concede as little as may be. Going back to the twelfth century we find the military class dominant, and below them the villeins. Among the soldiers the King acted as arbitrator, but each landlord dispensed justice to his serfs. This is what followed. The landlord in theory admitted no liability to anyone, save to him who could overcome him in fight. To members of his own class, indeed, who were unable to fight, he yielded the ordeal, but the result remained the same. He had convenient means at hand of disproving guilty animus. The villein could not appeal to the combat, and, I apprehend, was without remedy for a master's tort, save such relief as his lord conceded to him in his own courts, as a measure of precaution to keep him from attempting assassination. If a noble committed a tort against another noble, it was usually intentional. The early cases of trespass are apt to be for
murder and arson with a band of a hundred men. Literally vi et armis. For such a trespass a soldier might be appealed of felony. If in the duel he prevailed he escaped with his booty, if conquered he paid with his life and property. In the manor courts, where the serfs tried their causes, a very different system pre vailed. Men there had to prove that they did not beat each others' horses, or slander each others' wives, just as in a modern police court; but these serfs though they could sue each other for torts seem, as I have said, to have had very imperfect redress against the privileged class. On the other hand if you will turn over the records of the manorial courts published by the Selden Society you will find endless actions by the lord against his villeins for trespasses of cattle and the like, and a very strict accountability enforced. Apparently no plea of due diligence was admitted. And the reason is plain. The lord did not care to go to the expense of fencing his land so, having the power, he threw the burden of protecting his property on those who could not resist. Through such causes as these the theory of absolute accountability in trespass probably became evolved. Gradually as the power of the unarmed classes grew with their wealth, the land lords were forced to yield more and more until they too began to resort to the King's courts for relief against smiths who pricked their horses when shoeing, or ferrymen who upset, them in a river, but throughout the centuries you will always observe that he who on the whole had the greatest power was also he who had the best of those legal principles which we laboriously derive from a murky past. I cannot now stop to analyze the cases in detail. You will find most of them dis cussed in Mr. Justice Holmes' book, and also to some extent in Stanley v. Powell, 1 Q. B. (1901), 86. The conclusion I draw from them is simple. When a feudal aris tocracy were forced to yield something, they
