Page:Harvard Law Review Volume 32.djvu/457

Rh regard to culpability, was an obvious fact in the administration of justice. The eighteenth century was content to reconcile this form of liability with the general theory by a dogmatic fiction of representation in the case of torts of agents and servants and a dogmatic fiction of negligence in the case of trespassing animals. The nineteenth century remained content with the former. American courts which balked at employers' liability statutes as subversive of a fundamental principle of reason that liability can flow only from fault, were satisfied with the liability of a principal for the tort of an agent on the ground that the culpability of the agent was in reason that of the principal. But historical study soon showed that liability for trespassing animals was not to be explained on any theory of negligence, and so it became orthodox to explain this case and some analogous cases of liability without fault as historical survivals which were gradually dis- appearing as the idea of liability resulting from will was progressively realized in the administration of justice. In truth this attempt to state the whole law in terms of will and hence to state the whole law of torts in terms of culpability grew out of the historical and metaphysical jurisprudence of the last century, which conceived of progress in law as a progress from rules and doctrines in which duties and liabilities were involved in status or relation, to rules and doctrines in which "duties and liabilities flow from voluntary action and are consequences of exertion of the human will." So far from being stubborn archaisms, holding on in the teeth of progress, cases of common-law liability without fault have shown positive vitality. Thus the common-law liability for trespassing cattle, which at one time seemed on the way to extinction in America, has been steadily coming back into the law. It is now evident that the common-law rule was not rejected in our earlier decisions and our earlier legislation because it was in conflict with a fundamental principle of no liability without fault, but because it postulated a settled community, where it was contrary to the general security to turn cattle at large to graze, whereas in pioneer American communities vacant lands which were privately owned and those which were not owned