Page:Harvard Law Review Volume 9.djvu/334

306 306 HARVARD LAW REVIEW. that some one form should be authorized. Here too the choice between courses which in themselves were morally indifferent is determined by the law, and thenceforth it is the moral as well as the legal duty of every one concerned, if he will act as a good citizen and a prudent man, to do things in the appointed manner and forni. But there is more than this. As in many cases acts and conduct that are morally blameworthy must go quit of anything the law can do, so in many cases, on the other hand, persons are exposed, for reasons of public expediency, to legal responsibilities which may or may not be associated with moral fault, and which cannot be avoided even by the fullest proof that in the particular case the person who is answerable before the law was morally blameless. A man may, of course, make himself answerable by his own promise for many things independent of his moral deserts, or even wholly beyond his control : but we are here speaking of liability not accepted by the party's own act and consent, but imposed by a rule of law which does not depend on any one's consent for its operation. Thus a man is liable in most civilized countries for the wrongful acts and defaults of his servants in the course of their employment, whatever pains he may have taken in choosing com- petent servants and giving them proper instructions. Obviously this is a hard rule for the employer in many cases ; but its exist- ence in every system of law shows that in the main it is felt to be just. Again, both Roman and English law have made owners of buildings^ responsible, in various degrees, for their safe condition as regards passers by in the highway, or persons entering them in the course of lawful business: and this without regard to the amount of the owner's personal diligence in the matter. Again, questions often arise between two iilnocent persons, of whom one or other must bear the loss occasioned by the wrongful act of some one from whom redress cannot be obtained ; as when a man who has obtained goods by fraud from their owner sells them to an unsuspecting third person, and then absconds, leaving nothing behind him. Here the original owner and the buyer may be equally free from fault, but they cannot both have the goods, and their price cannot be recovered. Hardship to one or the other is inevitable. ^ This is by no means the full measure of the rule in our law. For simplicity's sake, only part of it is now stated.