patriarchal households, and as a body of rules for keeping the peace among the heads of these households, its problem was to reconcile the conflicting activities of free men, supreme within their households but meeting and dealing with their equals without. Accordingly it held them in penalties for such' injuries as they did wilfully, and held them in obligations to such duties or performances as they undertook in legal form. It held them for what they willed and did willingly, and it held them to what they willed and undertook legally. In our law, by contrast, the central idea is rather relation. Thus, in case of agency the civilian thinks of an act, a manifestation of the will, whereby one person confers a power, of representation upon another and of a legal giving effect to the will of him who confers it. Accordingly he talks of a contract of mandate 35 or of a legal transaction of substitution.36 The common-law lawyer, on the other hand, thinks of the relation of principal and agent and of powers, rights, duties and liabilities, not as willed by the parties, but as incident to and involved in the relation. He, therefore, speaks of the relation of principal and agent. So in partnership. The Romanist speaks of the contract of societas. He develops all his doctrines from the will of the parties who engaged in the legal transaction of forming the partnership.37 We speak, instead, of the partnership relation and of the powers and rights and duties which the law attaches to that relation. Again, the Romanist speaks of a letting and hiring of land and of the consequences which are willed by entering into that contract.38 We speak of the law of landlord and tenant and of the warranties which that relation implies, the duties it involves, and the incidents attached thereto. The Romanist speaks of a locatio operarum, a letting of services and of the effects

35

2 BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, 10 ed., §§ 1191-94; 2 CHIRONI, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 2 ed., § 344.

36 See, however, the critique of this conception in SCHLOSSMANN, LEHRE VON der STELLVERTRETUNG, §§ 3, 4, 80. Accordingly the Romanist does not know our doctrine of undisclosed agency. BARON, PANDEKTEN, § 65, II. On his theory, necessarily, if agency is disclosed, a contract with the principal is willed; otherwise not. The common law looks rather to the actual existence of the relation of principal and agent.

37 2 BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, 10 ed., §§ 1014-15. This refers only to "civil partnerships." The "commercial partnership," the creature not of the Roman law but of the law merchant, is treated as a juristic person. Id., § 1021. See also 2 CHIRONI, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 2 ed., §§ 340, 341.

38 2 WINDSCHEID, PANDEKTEN, §§ 399-400; 2 BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, IO ed., §§ 898-903.

which the parties have willed thereby. We speak of the relation of master and servant and of the duty to furnish safe appliances and the assumption of risk which are imposed upon the respective parties thereto. The Romanist speaks of family law. We speak of the law of domestic relations.39 The double titles of our digests, such as principal and surety, or vendor and purchaser, where the Romanist would use the one word, suretyship or sale, tell the same story.

The idea of relation, and of legal consequences flowing therefrom, pervades every part of Anglo-American law. At law the original type which provided the analogy still persists in the law of landlord and tenant. If one occupies another's land adversely the latter may put him out and may then have his action for mesne profits. But he has no action against the wrongful occupier on the ground that he is enriched unjustly by use and occupation of the land.40 The action for use and occupation may only be maintained where a relation exists. When the relation does exist, however, a train of legal consequences follows. There is an implied warranty of quiet enjoyment. There is an obligation to pay rent simply because of the relation, which the covenants in the lease only liquidate." Covenants in the lease run with the land; that is, the incidents so created go with the land, not with the person who made them. Again, in case of a conveyance for life there is still the relation of tenure, involving duties of the tenant toward those in reversion and remainder. Hence covenants are said to run with the land, that is, to follow the relation. But in case of a conveyance in fee simple there has been no relation since the statute of Quia Emptores in the reign of Edward I, and so the burden of covenants in the conveyance did not run. In the United States, when we first sought to extend the law as to

39 If it be said that this is a relatively recent phrase in our books, it may be pointed out that the title "baron and feme" goes a long way back and, as contrasted with "law of persons," has the true common law ring.

40 As to this anomalous doctrine and the historical reasons therefor, see KEENER, QUASI-CONTRACTS, 191–92.

Hence the rent follows the reversion, but the assignee of the reversion cannot recover of the covenantor, who agreed to pay, but only of the assignee of the term. Walker's Case, 3 Rep. 22 a (1588); Humble v. Glover, Cro. Eliz. 328 (1595). Hence also, notwithstanding the covenant to pay rent, if the lessor was not seised at the time of the lease so that no relation was created, there is a legal defense to the covenant. LITTLETON, § 58. Coke explains this as a case of failure of consideration. Co. LIT., 47 b. But it is significant that here, and here only, the failure of consideration might be shown at law against a deed, and that the tenant was not compelled to resort to chancery.

43

the creation of legal servitudes by permitting such covenants to run, we did not break over the rule expressly, but our courts instead turned for a time to the word "privity," which in its proper use refers to a relation," and thought the result justified by the conjuring up of a fictitious privity. So also in the law of torts the existence of some special relation, to which the law may annex a duty, is often decisive of liability. One may have no duty toward a licensee other than not to injure him wantonly. But gratuitous assumption of the relation of passenger and carrier, although no more than a license to ride in the carrier's wagon, involves liability for ordinary care. Again, if A is drowning and B is sitting upon the bank with a rope and life belt at hand, unless there is some relation between A and B other than that they are both human beings, for all that the law prescribes, B may smoke his cigarette and see A drown.45 In the absence of a relation that calls for action the duty to be the good Samaritan is moral only. The recent decisions that challenge this doctrine, it is significant to observe, are in cases involving the relation of master and servant.46 Throughout the law of negligence the common-law judge instinctively tends to seek for some relation between the parties or, as he is likely to put it, some duty of the one to the other.47

"See the classification of privity and the examples in Co. LIT., 271 a. 43 Morse v. Aldrich, 19 Pick. (Mass.) 449 (1837).

Harris v. Perry, [1903] 2 K. B. 219, 225.

Allen v. Hixson, 111 Ga. 460, 36 S. E. 810 (1900); Union Ry. Co. v. Cappier, 66 Kan. 649, 72 Pac. 281 (1903); Griswold v. Boston R. Co., 183 Mass. 434, 67 N. E. 354 (1903); Stager v. Laundry Co., 38 Ore. 480, 489, 63 Pac. 645 (1901); Ollett v. Railway Co., 201 Pa. St. 361, 50 Atl. 1011 (1902); King v. Interstate R. Co., 23 R. I. 583, 51 Atl. 301 (1902).

46 Ohio, etc. Ry. Co. v. Early, 141 Ind. 73, 40 N. E. 257 (1894); Raasch v. Laundry Co., 98 Minn. 357, 108 N. W. 477 (1906); Hunicke v. Quarry Co., 262 Mo. 560, 172 S. W. 43 (1914); Layne v. Chicago, etc. R. Co., 175 Mo. App. 34, 157 S. W. 850 (1913); Salter v. Telephone Co., 79 Neb. 373, 112 N. W. 600 (1907). This has always been recognized in the case of seamen. The Iroquois, 194 U. S. 240 (1903); Scarff v. Metcalf, 107 N. Y. 211, 13 N. E. 796 (1887). In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1 (1907), where there was no such relation, it might be urged that defendants were culpable in their affirmative acts. But the court relies on the relation between the parties created by an invitation.

47 Cf. the well-known statement of Brett, M. R., in Heaven v. Pender, 11 Q. B. D. 503, 507 (1883): "The questions which we have to solve in this case are what is the proper definition of the relation between two persons other than the relation established by contract, or fraud, which imposes on one of them a duty towards the other to observe, with regard to the person or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property. . . . When two drivers or two ships are approaching each other, such a relation arises between them

Again, in the case of mortgagor and mortgagee we do not ask what the parties agreed, but we apply rules, such as once a mortgage always a mortgage, or such as the rule against clogging the equity of redemption, which defeat intent, in order to enforce the incidents which courts of equity hold involved in the relation. In the case of sale of land it is not our mode of thought to consider that we are carrying out the will of the parties as manifested in their contract. Once the relation of vendor and purchaser is established, we think rather of the rights and duties involved in that relation, of the conversion of the contract right into an equitable ownership, and the turning of the legal title of the vendor into a security for money, not because the parties have so intended, but because the law, sometimes in the face of stipulations for a forfeiture, gives those effects to their relation.48 Then, too, we have the great category of fiduciary relations, of which trustee and beneficiary is the type. It is true

when they are approaching each other in such a manner that, unless they use ordinary care and skill to avoid it, there will be danger of an injurious collision between them. This relation is established in such circumstances between them, not only if it be proved that they actually know and think of this danger, but whether such proof be made or not. It is established, as it seems to me, because any one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill under such circumstances there would be such danger. . . . In the case of a railway company carrying a passenger with whom it has not entered into the contract of carriage the law implies the duty, because it must be obvious that unless ordinary care and skill be used the personal safety of the passenger must be endangered. With regard to the condition in which an owner or occupier leaves his house or property, other phraseology has been used, which it is necessary to consider. If a man opens his shop or warehouse to customers it is said that he invites them to enter, and that this invitation raises the relation between them which imposes on the inviter the duty of using reasonable care so to keep his house or warehouse that it may not endanger the person or property of the person invited. This is in a sense an accurate phrase, and as applied to the circumstances a sufficiently accurate phrase. Yet it is not accurate if the word 'invitation' be used in its ordinary sense. By opening a shop you do not really invite, you do not ask A. B. to come in to buy; you intimate to him that if it pleases him to come in he will find things which you are willing to sell. So, in the case of shop, warehouse, road, or premises, the phrase has been used that if you permit a person to enter them you impose on yourself a duty not to lay a trap for him. This, again, is in a sense a true statement of the duty arising from the relation constituted by the permission to enter. It is not a statement of what causes the relation which raises the duty. What causes the relation is the permission to enter and the entry."

See also Cardozo, J., in MacPherson v. Buick Motor Co., 217 N. Y. 382 (1916).

48 Setson v. Slade, 7 Ves. Jr. 264, 274 (1802); Champion v. Brown, 6 Johns. Ch. 398 (1822); In re Dagenham Dock Co., 8 Ch. App. 1022 (1873); Cornwall v. Henson, [1900] 2 Ch. 298, 304; Kilmer v. British Columbia Orchard Lands, Ltd., [1913] A. C. 319; Cheney v. Libby, 134 U. S. 68 (1889).

this category and many of the instances above recounted are the work not of common-law courts but of the courts of equity. But the common-law lawyer was at work in the courts of equity. The clerical chancellors brought about an infusion of morals into the legal system. To prevent dishonest or unconscientious conduct, interposing in part, perhaps, for the welfare of his soul, they forbade the trustee or the fiduciary doing this or that which legally he was at liberty to do. Presently the lawyers came to sit upon the woolsack. They turned at once to their staple analogy, lord and man, landlord and tenant, and out of the pious interference of the chancellors on general grounds of morals, they built the category of fiduciary relations with rights and duties annexed to them and involved in them, no matter what the parties to them may intend. So completely has this idea taken possession of equity that more than one subject, as, for example, interpleader and bills of peace, is embarrassed by a struggle to find "privity" — a struggle to find some relation to which the right to relief may be annexed.49

Our public law, too, is built around this same idea of relation. Magna Charta is recognized as the foundation of Anglo-American public law. But Professor Adams has shown that, as a legal document, Magna Charta is a formulation of the duties involved in the jural relation of the king to his tenants in chief.50 As the Middle Ages confused sovereignty and property, it was easy enough to draw an instrument declaring the duties incident to the relation of lord and man which, when the former happened to be king, could be made later to serve as defining the duties owing by the king in the relation of king and subject. Political theory sought to explain the duties of rulers and governments by a Romanist juristic theory of contract, a theory of a contract between sovereign and subjects which was devised originally in the contests between church and state to justify the disobedience of the pious subject who resisted a royal contemner of ecclesiastical privileges. We have seen in another connection how the two theories merged in the eighteenth century and the common-law rights of Englishmen, involved in the relation of king and subject, became the natural rights of man deduced from 2 STORY, EQUITY JURISPRUDENCE, § 120; 4 POMEROY, Equity JurispRUDENCE, 3 ed., § 1324; Dilly v. Doig, 2 Ves. Jr. 486 (1794); Tribette v. Illinois R. Co., 70 Miss. 182, 12 So. 32 (1892). The requirement of privity in interpleader is criticised both by Story and Pomeroy.

49

50 ORIGIN OF THE ENGLISH CONSTITUTION, chs. 4, 5.