Page:Harvard Law Review Volume 5.djvu/39

Rh whenever a rule of law is in fact a survival of ancient traditions, its ancient meaning is gradually forgotten, and it has to be reconciled to present notions of policy and justice, or to disappear. If the law of agency can be resolved into mere applications of general and accepted principles, then my argument fails; but I think it cannot be, and I may suggest, as another ground for my opinion beside those which I have stated heretofore, that the variety of reasons which have been offered for the most important application of the fiction of identity, the liability of the master for his servant's torts, goes far to show that none of those reasons are good. Baron Parke, as we have seen, says that case is brought in effect for employing a negligent servant. Others have suggested that it was because it was desirable that there should be some re- sponsible man who could pay the damages. 1 Mr. Justice Grove thinks that the master takes the risk of such offences as it must needs be should come. I admit my scepticism as to the value of any such general con- siderations, while on the other hand I should be perfectly ready to believe, upon evidence, that the law could be justified as it stands when applied to special cases upon special grounds. 2 There should have been added to the illustrations of a man's responsibility within his house, given in the former article at p. 360, that of a vassal for attempts on the chastity of his lord's daughter or sister " tant com elle est Damoiselle en son Hostel," in Ass. Jerusalem, ch. 205, 217, ed. 1690. The origin of the liability of innkeepers never has been studied, so far as I know. Beaumanoir, c. 36, seems to confine the liability to things in- trusted to the innkeeper, and to limit it somewhat even in that case, and to suggest grounds of policy. The English law was more severe, and put it on the ground that the guest for the time had come to be under the innkeeper's protection and safety. 42 Ass., pi. 17, fol. 260. A capias was refused on the ground that the defendant was not in fault, but an elegit was granted. 42 Ed. III. ir, pi. 13. Notwithstanding the forego- ing reason given for it, the liability was confined, at an early date, to those exercising a common calling {common hostler). 11 Hen. IV. 45, pi. 18. See The Common Law, 183-189, 203. See further, 22 Hen. VI. 21, pi. 38 ; ib. 38, pi. 8. And note a limitation of liability in cases of taking by the king's enemies, similar to that of bailees. Plowden, 9, and note in margin ; The Common Law, 177, 182, 199, 201. The references to the custom of England, or to the lex terra, are of no significance. The Common Law, 188. See further, the titles of Glanville and Bracton. Other citations could be given if necessary. Oliver Wendell Holmes, yr. See Williams v. Jones, 3 H. & C. 256, 263 ; 1 Harg. Law Tracts, 347.  Cf . what is said as to common carriers in The Common Law, 204, 205.