in Michael v. Alestree 28 in the reign of Charles II. In view of the historical antecedents it would be very extraordinary if such a notion were correct. I venture to think that it is mistaken, and that the principle has gradually grown to its present form from beginnings of the earliest date. I also doubt whether Michael v. Alestree is an example for the principle in question. It rather seems to me a case in which the damage complained of was the natural consequence of the very acts commanded by the master, and which, therefore, as I have said above, needs no special or peculiar doctrine to account for it. It was an action on the case against master and servant; "for that the Defendants in Lincoln's-Inn Fields, a place where People are always going to and fro about their Business, brought a Coach with two ungovernable Horses, & eux improvide incaute & absque debita consideratione ineptitudinis loci there drove them to make them tractable and fit them for a Coach; and the Horses, because of their Ferocity, being not to be managed, ran upon the Plaintiff, and wounded him: The master was absent," but both defendants were found guilty. "It was moved in Arrest of Judgment, That no Sciens is here laid of the Horses being unruly, nor any Negligence alledged, but e contra, that the Horses were ungovernable: Yet judgment was given for the Plaintiff, for it is alledged that it was improvide & absque debita consideratione ineptitudinis loci; and it shall be intended the Master Sent the servant to train the 28 2 Levinz, 172; S.C. 3 Keble, 650, 1 Ventris, 295 (T. 28 Car. II). Horses there." 29 In other words, although there was no negligence averred in the mode of driving the horses at the instant of the accident, but, e contra, that the horses were ungovernable, which was the scope of the defendant's objection, there was negligence in driving ungovernable horses for the purpose of breaking them in a public place, and that was averred, and was averred to have been done negligently. Furthermore, it was averred to have been done negligently by the defendant, which was a sufficient allegation on its face, and would be supported by proof that the defendant, knowing the character of the horses, ordered his servant to break them in a public resort. Indeed, the very character of the command (to break horses) imports sufficient knowledge; and when a command is given to do the specified act complained of, it always may be laid as the act of the party giving the order.3° When I come to investigate the true history of this part of the law, notwithstanding the likelihood which I have pointed out that it was a continuation and development of what I have traced in one or both of the parent systems, I must admit that I am met with a difficulty. Even in Bracton, who writes under the full influence of the Roman law, I have failed to find any passage which distinctly asserts the civil liability of masters for their servants' torts apart from command or ratification. There is one text, to be sure, which seems corrupt as it stands and which 29 2 Lev. 172. could be amended by conjecture so as to assert it. But as the best manuscripts in Lincoln's Inn substantially confirm the printed reading, conjecture would be out of place.31 On the other hand, I do find an institution which may or may not have been connected with the AngloSaxon laws touching the responsibility of masters, but which, at any rate, equally connects liability of a different sort with family headship. At about the time of the Conquest, what was known as the Frithborh, or frankpledge, either was introduced or grew greatly in importance. Among other things, the master was made the pledge of his servants, to hand them over to justice or to pay the fine himself. "Omnes qui servientes habent, eorum sint francplegii," was the requirement of William's laws. Bracton quotes the similar provisions of Edward the Confessor, and also says that in some counties a man is held to answer for the members of his family.32 The quasi-criminal liability of master for man is found as late as Edward II. alongside of the other rules of frankpledge, with which this discussion is not concerned. Fitzherbert's Abridgment reads as follows: "Note that if the servant (serviens) of any lord while in his service (in servicio suo existens) commits a felony and is convicted, although after the felony (the master) has not 33 81 Bract., fol. 115a. 32 "Tenebitur ille, in quibusdam partibus, de cujus fuerint familia et manupastu." Bract., fol. 124b; i.e., for the persons under his patria potestas. LL. Gul. I., C. 52; LL. Edw. Conf., C. 21 (al. 20). 33 Corone, pl. 428 (8 Ed. II. It canc.). received him, he is to be amerced, and the reason is because he received him 'in bourgh.'" Bracton, in like manner, says that the master is bound "Emendare" for certain torts of his servant,** meaning, as I take it, to pay a fine, not damages. 35 But true examples of the peculiar law of master and servant are to be found before Edward II. The maxim respondeat superior has been applied to the torts of inferior officers from the time of Edward I. to the present day. Thus that chapter of the Statute of Westminster the Second, which regulates distresses by sheriffs or bailiffs, makes the officer disregarding its provisions answerable, and then continues, “si non habeat ballivus unde reddat reddat superior suus." So a later chapter of the same statute, after subjecting keepers of jails to an action of debt for escapes in certain cases, provides that if the keeper is not able to pay, his superior, who committed the custody of the jail to him shall be answerable by the same writ. So, again, the eighteenth chapter of the Articuli super Chartas " gives a writ of waste to wards, for waste done in their lands in the king's hands by escheators or sub-escheators, "against the escheator for his act (if he have whereof to answer), and if he have not, his master shall answer ('si respoigne son sovereign') by like pain concerning the 37 34 Bract., fol. 158b, 1712, b, 172b. Cf. Ducange, “Emenda.” 35 St. 13 Ed. I., St. I, Ch. 2, § 3. 36 Ch. II. ad finem. "Et si custos gaole non habeat per quod justicietur vel unde solvat respondeat superior suus qui custodiam hujusmodi gaole sibi commisit per idem breve." 37 St. 28 Ed. I., Ch. 18. damages, as is ordained by the statute for them that do waste in wardships." A case of the time of Edward II. interpreting the above statute concerning jailers is given in Fitzherbert's Abridgment, and later similar cases are referred to in Coke's Fourth Institute. 39 38 It may be objected that the foregoing cases are all statutory. But the same principle seems to have been applied apart from any statute except that which gave counties the power to elect coroners, to make the county of Kent answerable to the king for a coroner's default, as well as in other instances which will be mentioned later. Moreover, early statutes are as good evidence of prevailing legal conceptions as decisions are. 40 But again it may be objected that there were special grounds of public policy for requiring those who disposed of public offices of profit to appoint persons "for whom they will answer at their peril," in the words of another similar statute as to clerks in the King's Courts." It might be said with truth 38 Dette, pl. 172 (M. 11 Ed. II.). 39 4 Inst. 114; "45 E. 3, 9, 10, Prior datife et removeable suffer eschape, respondeat superior. 14 E. 4, Pur insufficiency del bailie dun libertie respondeat dominus libertatis. Vid. 44 E. 3, 13; 50 E. 3, 5; 14 H. 4, 22; 11 H. 6, 52; 30 H. 6, 32." 40 See the writ of H. 14 Ed. III, ex parte, Remem. Regis, rot. 9, in Scacc. in 4 Inst. 114, and less fully in 2 Inst. 175. “Et quia ipse coronator electus erat per comitatum juxta formam statuti, etc., ita quod in defectu ejusdem coronatoris totus comitatus ut elector et superior, etc. (tenetur), habeant regi respondere, praecip. (praeceptum fuit) nunc vic. quod de terris et tenementis (hominum) hujusmodi totius comitatus in balliva sua fieri fac.," etc. See the other references in 4 Inst. 114, and further Y. B. 49 Ed. III. 25, 26, pl. 3. 41 St. 2 Hen. VI., Ch. 10. |