that the responsibility was greater than in the case of private servants, and it might be asked whether respondeat superior in its strict sense is not an independent principle which is rather to be deemed one of the causes of the modern law, than a branch from a common stem. It certainly has furnished us with one of the inadequate reasons which have been put forward for the law as it is that somebody must be held who is able to pay the damages.

The weight of the evidence seems to me to overcome these objections. I think it most probable that the liability for under-officers was a special application of conceptions drawn from the family and the power of the family head over his servants. Those conceptions were in existence, as I have shown. From a very early date, under-officers are called servants of their superior, as indeed it seems to be implied that they are, by the word "sovereign" or even "superior," in the statutes which have been cited. "Sovereign" is used as synonymous with master in Dyer."2 In the Y. B., II Edward IV. 1, pl. I, it is said, "If I make a deputy, I am always officer, and he performs the office in my right and as my servant"; and from that day to this, not only has the same language been repeated, but, as I shall show, one of the chosen fields for the express

43

42 Alford v. Eglisfield, Dyer, 230b, pl. 56. The passage will be cited later in dealing with factors. See also Y. B. 27 Hen. VIII. 24, pl. 3.

43 Parkes v. Mosse, Cro. Eliz. 181 (E. 32 Eliz.); Wheteley v. Stone, 2 Roll. Abr. 556, pl. 14; S. C. Hobart, 180; 1 Bl. Comm., 345, 346.

use of the fiction of identity is the relation of superior and under-officer.

Under Edward III. it was held that if an abbot has a wardship, and a co-canon commits waste, the abbot shall be charged by it, "for that is adjudged the deed of the abbot." ** This expression appears to me not only to apply the rule respondeat superior beyond the case of public officers, but to adopt the fiction of identity as a mode of explaining the rule.

An earlier record of the same reign, although it turned on the laws of Oleron, shows that the King's Court would in some cases hold masters more strictly accountable for their servants' torts than is even now the case. A ship-master was held liable in trespass de bonis asportatis for goods wrongfully taken by the mariners, and it was said that he was answerable for all trespasses on board his ship.45

A nearly contemporaneous statute is worth mentioning, although it perhaps is to be construed as referring to the fines which have been mentioned above, or to other forfeitures, and not to civil damages. It reads, "That no merchant nor other, of what condition that he be, shall lose or forfeit his goods nor merchandizes for the trespass and forfeiture of his servant, unless he do it by the commandment or procurement of his master, or that he hath offended in the office in which his master hath set him, or in other manner, that the master be holden

44 Y. B. 49 Ed. III, 25, 26, pl. 3.

45 Brevia Regis in Turr. London, T. 24 Ed. III., No. 45, Bristol, printed in Molloy, Book 2, Ch. 3, § 16.

46

to answer for the deed of his servant by the lawmerchant, as elsewhere is used." " The statute limits a previously existing liability, but leaves it open that the master still shall be holden to answer for the deed of his servant in certain cases, including those of the servant's offending in the office in which the master hath set him. It is dealing with merchants, to be sure, but is another evidence that the whole modern law is of ancient extraction.

It must be remembered, however, that the cases in which the modern doctrines could have been applied in the time of the Year Books were exceedingly few. The torts dealt with by the early law were almost invariably wilful. They were either prompted by actual malevolence, or at least were committed with full foresight of the ensuing damage." And as the judges from an early day were familiar with the distinction between acts done by a man on his own behalf and those done in the capacity of servant, it is obvious that they could not have held masters generally answerable for such torts unless they were prepared to go much beyond the point at which their successors have stopped.**

47

48

46 St. 27 Ed. III., St. 2, cap. 19.

47 The Common Law, 3, 4, 101-103. I do not mean as a matter of articulate theory, but as a natural result of the condition of things. As to very early principles of liability see now Dr. Brunner's most learned and able discussion in Sitzungsberichte der kön. Preuss. Akademie der Wissensch., XXXV., July 10, 1890. Uber absichtlose Missethat im Altdeutschen Strafrechte. Some of the cases mentioned by him, such as Beowulf, 2435, had come to my notice.

48 See, e.g., Gascoigne in Y. B. 7 Hen. IV. 34, 35, pl. 1. 49 Cf. Dr. and Stud. Dial. 2, Ch. 42 (A.D. 1530).

Apart from frauds 50 and intentional trespasses against the master's will 51 I know of only one other case in the Year Books which is important to this part of my subject. That, however, is very important. It is the case concerning fire,52 which was the precedent relied on by Lord Holt in deciding Turberville v. Stampe, which in its turn has been the startingpoint of the later decisions on master and servant." I therefore shall state it at length.

54

Beaulieu sued Finglam, alleging that the defendant so negligently guarded his fire that for want of due guard of the same the plaintiff's houses and goods were burned. Markham (J.), "A man is held to answer for the act of his servant or of his guest (hosteller) in such case; for if my servant or my guest puts a candle on a beam (en un pariet), and the candle falls in the straw, and burns all my house, and the house of my neighbor also, in this case I shall answer to my neighbor for the damage which he has, quod concedebatur per curiam. Horneby [of counsel], Then he should have had a writ, Quare domum suam ardebat vel exarsit. Hull [of counsel], That will be against all reason to put blame or default in a man where there is (il ad) none in

50 Y. B. 9 Hen. VI. 53, pl. 37.

51 Y. B. 13 Hen. VII. 15, pl. 10. Cf. Keilway, 3b, pl. 7 (M. 12 Hen. VII.).

52 Y. B. 2 Hen. IV. 18, pl. 6.

82 Carthew, 425, shows that the Year Book was cited. And the language of Lord Holt, reported in 1 Ld. Raym. 264, shows that he had it before his mind.

54 Brucker v. Fromont, 6 T. R. 659; M'Manus v. Crickett, 1 East, 106; Patten v. Rea, 2 C. B. N. S. 606.

him; for negligence of his servants cannot be called his feasance. Thirning [C. J.], If a man kills (tue ou occist) a man by misfortune he will forfeit his goods, and he must have his charter of pardon de grace. Ad quod Curia concordat. Markham, I shall answer to my neighbor for him who enters my house by my leave or my knowledge, or is entertained (hoste) by me or by my servant, if he does, or any one of them does such a thing, as with a candle (come de chandel), or other thing, by which feasance the house of my neighbor is burned; but if a man from outside my house, against my will, puts the fire in the straw of my house, or elsewhere, by which my house is burned and also the houses of my neighbors are burned, for that I shall not be held to answer to them, etc., for this cannot be said to be through ill-doing (male) on my part, but against my will." Horneby then said that the defendant would be ruined if this action were maintained against him. Thirning (C. J.), "What is that to us? It is better that he should be undone wholly, than that the law should be changed for him.55 Then they were at issue that the plaintiff's house was not burned by the defendant's fire."

The foregoing case affords some ground for the argument which was vainly pressed in Turberville v. Stampe, that the liability was confined to the house.56 Such a limit is not unsupported by analogy. By the old law a servant's custody of his master's things was

55 Y. B. 2 Hen. IV. 18, pl. 6.

56 See also I Bl. Comm. 431; Noy's Maxims, Ch. 44.