Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/794

 780 V. BENCH AND BAR if hurt you must give me so much more, or an adequate equivalent for the hurt.' But drop the maxim. Treat it as a question of bargain. The plaintiff here thought the pay worth the risk and did not bargain for a compensation if hurt ; in effect he undertook the work with its risks for his wages and no more. He says so. Suppose he had said, day, and not five shillings,' and the master agreed, would he in reason have a claim if he got hurt.'' Clearly not. What difference is there if the master says, ' No, I will only give the five shillings.' None. I am ashamed to argue it." He reargued the same matter in Membery v. Great Western Ry. 14 App. Cas. 179 : " I hold that where a man is not physically constrained, where he can at his option do a thing or not, and he does it, the maxim applies. What is volens? Willing ; and a man is willing when he wills to do a thing and does it. No doubt a man", popularly speaking, is said to do a thing unwillingly, with no good will ; but if he does it, no matter what his dislike is, he prefers doing it to leaving it alone. He wills to do it. He does not will not to do it. I suppose nolens is the opposite of volens, its negative. There are two men ; one refuses to do work, wills not to do it, and does not do it. The other grumbles, but wills to do it and does it. Are both men nolens, unwilling.? Suppose an extra shilling induced the man who did the work. Is he nolens or has the shilling made him volens? There seems to be a strange notion that a man who does a thing and grum- bles is nolens, is unwilling, has not the will to do it, or that there is something intermediate nolens and volens, something like a man being without a will and yet who wills. If the shilling made him volens^ why does not the desire to continue employed do so ? If he would have a right to refuse the work and his discharge would be wrongful, with a remedy to him, why does not his preference of a certain to an uncertain law not make him volens as much ns any other motive? There have been any infinity of profoundly learned and useless dis- cussions as to freedom of the will ; but this notion is new." The truth is, the good Baron's political views were so pro- nounced that in a certain class of cases they influenced his
 * If I am to run this risk you must give me six shillings a