for like. The punishment, then, is meant for the culprit, though the chief sufferer is somebody else. . . . The retribution of a god is, in many cases, nothing but an outburst of sudden anger, or an act of private Revenge, and as such particularly liable to comprise, not only the offender himself, but those connected with him. . . . The retributive sufferings which innocent persons have to undergo in consequence of the sins of the guilty, are not always supposed to be inflicted upon them directly as a result of divine resentment. They are often attributed to infection. Sin is looked upon in the light of a contagious matter which may be transmitted from parents to children, or be communicated by contact. . . . In this materialistic conception of sin there is an obvious confusion between cause and effect, between the sin and its punishment. Sin is looked upon as a substance charged with injurious energy, which will sooner or later discharge itself, to the discomfort or destruction of anybody who is infected with it. . . .

..

Closely connected with the primitive conception of sin, is-that of a curse. In fact, the injurious energy attributed to a sinful act, is in many cases obviously due to the curse of a god. The curse is looked upon as a baneful substance, as a miasma which injures or destroys anybody to whom it cleaves. The curse of Moses was said to lie on Mount Ebal, ready to descend with punishments whenever there was an occasion for it. The Arabs, when being cursed, sometimes lay themselves down on the ground, so that the curse, instead of hitting them, may fly over their bodies. According to Teutonic notions, curses alight, settle, cling, they take flight, and turn home as birds to their nests.

Thus, from the conception that sins and curses are contagious, it follows that an innocent person may have to suffer for the sin of another. His suffering does not necessarily relieve the sinner from punishment; sin, like an infectious disease, may spread without vacating the seat of infection. But, as we have seen, it may also be transferred, and sin-transference involves vicarious suffering. . . To sum up: · - The fact that punishments for offences are frequently inflicted, or are supposed to be inflicted, by men or gods upon individuals who have not committed those offences, is explicable from circumstances which in no way clash with our thesis that moral indignation is, in its essence, directed towards the assumed cause of inflicted pain. In many cases the victim, in accordance with the doctrine of collective responsibility, is punished because he is considered to be involved in the guilt - even when he is really innocent or because he is regarded as a fair representative of an offending community. In other cases, he is supposed to be polluted by a sin or a curse, owing to the contagious nature of sins and curses.

346. HISTORY OF GERMANIC LAW. Heinrich Brunner. (1892. 1st ed., Vol. II, § 125, p. 549.) The ancient law was harsh. A man was liable not only for harm caused unintentionally, but also for any harm which came about through him; and the liability extended to persons who would in our modern view seem to have had little or no connection with the harm. Excusable accident was not recognized. The law sought to hold somebody liable, and laid hold of him by principles of causal connection which are to us nowadays scarcely comprehensible. The scope of liability was so broadly bounded that it made a man liable for any misfortune which in its origin was somewhere traceable to his region of existence. Certain liabilities were fixed on him by virtue of his clan-relationships, or of his status as guardian, or as householder with a body of free retainers, or as lord of the manor, or as a member of the hundred or the township, irre

spective of his privity to the wrongful act. But more than this, the owner of property was responsible for harm done by his menials, by his domestic animals, and even by his inanimate chattels. And still further as a tradesman and a master he was under an extensive liability for injuries received by his hired workmen in the course of their service to him. The master paid the "headmoney" of a workman who was killed in his service, as well as the damages (at the usual tariff) for lesser injuries, except only when the injury was attributable to some third person, so as to exonerate the master; and the master was also liable for wrongs done by his servants. For example, if a person lost his life accidentally, by fire or water or tree, while in another's service, the master was responsible for the "homicidium;" and if a person was sent away or sent for, in the service of another, and lost his life on the errand, the employer was regarded as the "causa mortis."

347. SIR F. POLLOCK and FREDERIC WILLIAM MAITLAND. The History of English Law Before the Time of Edward I. (1899. 2d ed., Vol. II, p. 470.) Causation in Ancient Law. Guesswork perhaps would have taught us that barbarians will not trace the chain of causation beyond its nearest link, and that, for example, they will not impute one man's death to another unless that other has struck a blow which laid a corpse at his feet. All the evidence, however, points the other way: — I have slain a man if but for some act of mine he might perhaps be yet alive. Very instructive is a formula which was still in use in the England of the thirteenth century; one who was accused of homicide and was going to battle was expected to swear that he had done nothing whereby the dead man was "further from life or nearer to death." Damages which the

modern English lawyer would assuredly describe as too remote, were not too remote for the author of the Leges Henrici. At your request I accompany you when you are about your own affairs; my enemies fall upon and kill me; you must pay for my death. You take me to see a wild-beast show or that interesting spectacle a madman; beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay. In none of these cases can you honestly swear that you did nothing that helped to bring about death or wound.3 . . .

But the most primitive laws that have reached us seem to point to a time when a man was responsible, not only for all harm done by his own acts, but also for that done by the acts of his slaves, his beasts, or (for even this we must add) the inanimate things that belonged to him. . . . Our English law of deodands gives us a glimpse into a far-off past. In 18465 we still in theory maintained the

1 Leg. Hen. 90, Par. 11: "Quod per eum non fuerit vitae remotior morti propinquior." Bracton, f. 141 b: "per quod remotior esse debeat a vita et morti propinquior." Note Book, pl. 1460: "Nec per ipsum fuit morti appropiatus nec a vita elongatus." Munim. Gildh. i. 105: "Iuravit . . . quod numquam ipsam Isabellam verberavit, unde puer, de quo fecit aborsum, propinquior fuit morti et remotior a vita." Brunner, Forschungen, p. 495, gives a similar formula from the Icelandic Gragas.

2 Leg. Hen. 88, Par. 9.

3 Leg. Hen. 90, Par. 11.

4 Brunner, op. cit. 507-523.

5 Stat. 9-10 Vic. c. 62. For the law of deodands, see Bracton, f. 122; Fleta, p. 37; Britton, i. 14, 15, 39; Staundford, P. C. f. 20; Coke, Third Inst. 57; Hale, P. C. i. 419; Stephen, Hist. Crim. Law, iii. 77.

rule that any animate or inanimate thing which caused the death of a human being should be handed over to the king and devoted by his almoner to pious uses, "for the appeasing," says Coke, "of God's wrath," . . . Horses, oxen, carts, boats, mill-wheels and cauldrons were the commonest of deodands. . . . The deodand may warn us that in ancient criminal law there was a sacral element which Christianity could not wholly suppress, especially when what might otherwise have been esteemed a heathenery was in harmony with some of those strange old dooms that lie embedded in the holy books of the Christian. Also it is hard to acquit ancient law of that unreasoning instinct that impels the civilized man to kick, or consign to eternal perdition, the chair over which he has stumbled.

348. JOHN H. WIGMORE. Responsibility for Tortious Acts: Its History. (1894. Harvard Law Review, VII, 315, 383, 442; reprinted in Select Essays in AngloAmerican Legal History, III, p. 474.) "No conception can be understood except through its history," says the Positivist philosopher; and of no legal conception in Anglo-American law is this more true than of the notion of Responsibility for Tortious Acts. By this phrase is indicated that circumstance or group of mental circumstances attending the initiation and eventuation of an acknowledged harmful result, which induces us to make one person rather than another (or than no one at all) civilly amenable to the law as the source of the harmful result (and independently of whether this person can show some recognized justification for the harm). It is this notion whose history we find it possible to trace back in a continuous development in our Germanic law, without a break, for at least two thousand years.

To get a starting-point, let us look back from present principles. The law to-day, so far as we are entitled to take it as standing on a rational basis, distinguishes classes of culpable causation which may be roughly generalized for present purposes as follows: (1) Cases where the source of harm is pure misadventure, as where a customer is handling a supposed unloaded gun in a gunstore, and it goes off and injures the clerk; (2) Cases where no design to injure exists, but a culpable want of precaution and foresight is found; (3) Cases where no design to injure exists, and yet no inquiry into the actor's carefulness is allowed, — in other words, where he does the specific harm-initiating act “at his peril," as where he fires a gun in the street, or sells goods which prove to be those of another; (4) Cases where actual design to produce the harm exists.1 Now, the thing to be noted is that the primitive Germanic law knew nothing of these refinements; it made no inquiry into negligence, and it based no rule on the presence or absence of a design or intent; it did not even distinguish, in its earlier phases, between accidental and intentional injuries. The distinctions of to-day stand for an attempt (as yet more or less incomplete) at a rationalized adjustment of legal rules to considerations of fairness and social policy. But the in

1 Compare Holmes, Common Law, cc. iii, iv., esp. pp. 92 ff., 144 ff.; Pollock, Torts, p. 19. It is here assumed, for present purposes, that in the few classes of cases where actual malicious motive is material, no question of responsibility, properly considered, is involved, but rather a question of the loss of a privilege; as pointed out by Mr. Justice Holmes in his article on Privilege, Malice, and Intent (Harvard Law Review, VIII, 1; 1894), and by the present author in an article on the Tripartite Division of Torts (id. VIII, 200, 377; 1894). Professor Whittier, in his article on Mistake in the Law of Torts (id. XVI, 335; 1902), does not accept this analysis.

discriminate liability of primitive times stands for an instinctive impulse, guided by superstition, to visit with vengeance, the visible source, whatever it be, human or animal, witting or unwitting, of the evil result. Both these extremes are fairly clear; it is the transition from one notion to the other which forms the interesting and complex process.

In endeavoring to realize the nature of the primitive canons of Responsibility, one must take into consideration the essentially superstitious and unreasoning spirit which pervaded the jural doings of primitive society; for the notion here dealt with was only one of the vehicles of his expression. One need not here to call to mind in detail the characteristics of primitive culture; 1 only certain of the more germane may be noted. The instinct of revenge, as an ag4ressive reaction from inflicted pain, preceding any developed sense of justice; the prevalence of clan-organization and clan-responsibility; the idea of transgression as associated with ceremonial observances; the implicit belief in taboo and curse; the propitiation of ghosts and deities by gifts and sacrifices; the sense of pollution and contamination (as by the touching of blood or of a corpse); the inheritance of guilt; the appeal to a decision of the Deity or of chance in litigation (as by the subjection to ordeals, the swearing of exculpatory oaths, the engaging in formal combat); the arbitrary formalism of words and phrases in pleading and oaths, these give the tone to the times. In the light of these it is easy to understand that the notion of Responsibility for Harmful Results was determined largely by crude primitive instincts of superstition, that our ancestors were satisfied with finding a visible source for the harm and following out their ideas of justice upon it.

It must be remembered, moreover, that we are here dealing with a sentiment characteristic of primitive justice everywhere. It was, beyond question, universal. . . .

In this particular field, too, there are numerous manifestations, all akin. The doer of a deed was responsible whether he acted innocently or inadvertently, because he was the doer; the owner of an instrument which caused harm was

1 The keenest and most comprehensive analysis of these related features of primitive life is to be found in The Origin and Development of Moral Ideas, by Edward Westermarck (lecturer at Helsingfors and at London; Eng. ed., 1906), Vol. I (Vol. II, 1908, has little). Next in suggestiveness and insight should be mentioned G. Glotz' La solidarité de la famille dans le droit criminel en Grèce (Paris, 1904). A general survey of the primitive attitude in English law is given in Professor J. B. Ames' article on "Law and Morals," 1908 (Harvard Law Review, XXII, 97).

2 1888, P. F. Girard, Les actions noxales, in Nouvelle revue historique du droit français et étranger, XII, 38: "There is a phenomenon which one can discern throughout all antiquity, that is, vengeance, the physical, unreasoning emotion, which drives the victim of an injury to a violent reaction against the immediate author of the injury. He who regards himself as offended against, takes vengeance for the offence as he will and as he can, alone or with the help of others, recognizing only the brute fact that he has suffered, and dominated by a feeling of resentment measured solely by the harm he has undergone. . . . The victim of the harm knows nothing but the harm done to him. He does not concern himself with the intent of the doer. . . . He therefore revenges himself for the harm-causing act, even though it may have been unintentional. . . . Moreover, for the same reason, the victim takes his revenge even where the immediate author of the harm is not capable of intending it, where it is not a human being, but an animal, or an inanimate object."

responsible, because he was the owner, though the instrument had been wielded by a thief; the owner of an animal, the master of a slave, was responsible because he was associated with it as owner, as master; the master was liable to his servant's relatives for the death, even accidental, of the servant, where his business had been the occasion of the evil; . . . while the one who harbored or assisted the wrongdoer, even unwittingly, was guilty, because he had associated himself with one tainted by the evil result. Of these various forms of the primitive notion which determined responsibility, we are here concerned with only a few, those that have a more or less intimate connection with later doctrines of the English law of torts, and are therefore for us more worth tracing from early times.

We have, then, to deal with the primitive notion which instinctively visits liability on the visible offending source, whatever it be, of a visible evil result. The notion, as applied to persons, is that of the schädliche Mann, a person from whom some evil result has proceeded. It can best be illustrated in advance by . . . an example showing an exceptionally late survival of these ideas, and at the same time the transition to different standards: "Owen Alwerk was brewing beer. During his absence the child of Swein Pons came in and stood by the kettle. The kettle slipped from its hook, and the liquid burned the child so that it died on the third day. The relatives of the child pursued Alwerk, who fled to the house of a friend for refuge. The master of the house opposed the entrance of the pursuers, and an affray ensued, in which the master by inadvertence killed his own nephew. The affair was laid before six men as judges; and they decided at first that Alwerk must pay the head-money for the dead child and for the dead nephew, and must besides make a pilgrimage to Rome. But Alwerk opposed the judgment, and to such a good purpose that they altered it to this effect, that he should be absolved without more from the child's death, and from the nephew's if he swore that he did not urge on the master of the house to fight.” 1

With these preliminary illustrations of the attitude of mind we are dealing with, we may take up, in the order of topics already named, the primitive ideas for the exposition of which we are indebted to the great Brunner.

a. Harm connected with a Personal Deed. It is not possible to draw hard-andfast lines in tracing the stages of development; we can simply note that there were several stages, and point to particular rules or passages as illustrating approximately this or that successive form.

1. Of the primitive form of absolute liability we find a few comparatively late traces. . . . It may be noted here that the proceeding of attaint was only a later form of the same early notion. In early times it was a general custom, where adultery or the like was discovered, to slay every living thing within the house, whether man or beast. The legal visitation of the sins of the fathers upon the children was one of the latest survivals of this idea.

2. As times change, and superstition begins to fade, the notion of “misadventure," "ungefaehr," is hazily evolved, and facts of the sort are regarded as ground for an appeal to the king or the lord on the offender's behalf. The strict law is thus regarded as requiring his punishment; but no vengeance can be wreaked upon him, no blood-feud started by the members of the victim's family: . . .

"Mabel, Derwin's daughter, was playing with a stone at Yeovil, and the

1 A. D. 1439, Richthofen, K. v., Friesische Rechtsquellen, 570; 1840.