PHILOSOPHY OF THE LAW.

BY E. B. LEAMING, OF NEW WHATCOM.

To the lawyer in active practice nothing is more apparent than that an intelligent and accurate application of legal doctrines involves a thorough comprehension of their origin, history and growth-involves a knowledge of the times, conditions and thought that gave them birth, as well as of the changing methods of reasoning and varying conditions with which these doctrines have been sustained and applied and nurtured to their present status — involves, in short, a comprehension of the philosophy of the doctrines. While in this state we practice under what we are pleased to term a code system-a system of procedure which some have erroneously declared to be a declaration of independence of the common law yet it is an indisputable fact that no code system can be devised so complete in either its rules of procedure or its promulgation of abstract legal doctrines that a knowledge of the common law is not a necessity to a full and adequate comprehension of its application; for it is upon the knowledge emanating from centuries of experience and judicial thought that any modern system of laws must be based.

Unfortunately doctrines of law cannot be dealt with as rules of mathematics; they embody elements arising from the necessities of the times, the prevalent moral and political theories, and institutions of public policy, fancied or real; and any given legal principle must be resolved with reference to all these, and its origin, history and growth will be found to have intimately reflected the history and conditions of the times through which it has passed.

But it is these very transmutations of thought arising from changing conditions out of which a system embodying principles and doctrines has grown; and while there are many rules of law to-day sufficiently accounted for and understood by their manifest good sense, yet there are many that can only be adequately under

stood by reference to the infancy of procedure among the German tribes or to the social conditions of Rome under the Decemvirs.

It is impracticable in a single paper to attempt anything like a philosophic discussion of more than a few of the many rules of law that can only thus be comprehended in their fullness.

Illustrative of the ever present influence and importance of the origin and history of a given doctrine to a full appreciation of its present force I will first refer briefly to the early grounds of civil liability.

The earlier forms of legal procedure were grounded in vengeance, and the remedy pursued the person or thing inflicting the injury rather than the recovery of damages. In Exodus (XXI, 28) we read: "If an ox gore a man or a woman that they die, then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall go quit." The same principle is found in the Greek laws. Plutarch in his Solon tells us that a dog that has bitten a man was to be delivered up bound. Plato's laws made elaborate provisions for delivering up slaves to the person they had injured, and offending inanimate things were to be cast beyond the borders. (Bohn, 338.)

In the Roman law the same principles of the noxæ deditio is found. The Twelve Tables (451 B. C.) provided that if an animal had done damage, either the animal was to be surrendered or the damage paid for (Just. Inst. 4, 9), and the same rule was applied to the torts of children or slaves or injuries sustained from inanimate things. (Gaii Inst. IV, secs. 75, 76.)

The action was not based on the fault of the parent or owner, but followed the offending thing. The Grecian process was directed against the offending object, animate or inanimate. The Roman process was against the owner, but was for the sole purpose of reaching the offending thing. (Gaius Inst. IV, sec. 77.) The damages to be paid were in no sense a liability upon the owner, but a privilege extended to him by the Roman law to avoid the surrender of the thing proceeded against. The whole procedure was based upon the idea of vengeance- the surrender of the offending thing to the power of the injured person, and this surrender was full expiation. Contracts and torts were not yet distinguished, and a debtor was proceeded against in like manner and

a surrender of the body was awarded in satisfaction of the debt; and herein lies the origin of the right still existing in many of our states, to take the body of a debtor on execution, and accounts for the otherwise inexplicable rule of law that a capias ad satisfaciendum extinguishes the debt, however soon thereafter the debtor may be discharged.

But in the early days of Rome, as well as during the growth of English law, and I may suggest as sometimes now occurs, judicial interpretation tended to enlarge the sphere of the law, and what was first the privilege of the master to buy off the right of the injured to vengeance by paying damages, and thus avoiding the necessity of surrender of the offending slave or thing, became, by judicial interpretation, the duty of the master, and thus in time the master became personally liable for the wrongs of his slave, and the same principle was extended to injuries inflicted by animals and inanimate things; and a little later the judges found that owing to the great degree of confidence necessarily reposed in innkeepers and ship owners, they should be held to personal responsibility for the acts of their servants, even though such servants should be free men and not slaves (D. 4, 9, 1, sec. 1); and here we find the first instance of a man made responsible for the wrongs of another, who was also answerable himself, and who had a standing before the law.

Thus was the change wrought from the bare privilege to ransom one's slave to the modern doctrine of master and servant, principal and agent; and the reason offered by the Roman jurists for an exceptional rule is to-day made to justify universal and unlimited responsibility. (Doctor vs. Student, Dial, 2, Ch. 42; Holmes Com. Law.)

Returning now to responsibility for injuries received from animate and inanimate things, it would be interesting to trace through the English law the various forms of procedure against offending things, based wholly or in part upon the ancient theory of surrender, some of which, such as distress of cattle damage feasant, exist to-day in many of our states; but I will content with a quotation from an opinion from Chief Justice Marshall which will, in itself, serve to show how little our admiralty courts have departed from the ancient notions:

"This is not a proceeding against the owner; it is a proceeding against the vessel for an offense committed by the vessel, which is not less an offense and does not the less subject her to forfeiture because it was committed without the authority and against the will of the owner. It is true that inanimate matter can commit no offense. But this body is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report.' (Malck Adhee, 2 How. 210, 234.) And again: "The thing is here primarily considered as the offender, or rather the offense is primarily attached to the thing." (Ib.)

And I understand it to be the law of admiralty to-day that the owner of a vessel is discharged from responsibility for wrongful acts of a master appointed by himself upon surrendering his interest in the vessel and the freight which she has earned.

There is probably no field of law springing from a mere germ of ancient times and developing in modern law to the greatest magnitude, which retains in so many of its departments important and controlling influences of its origin and early application as that of

contracts.

It is usually supposed that the oldest forms of contract known to our law are covenant and debt, but there are other contracts still in use though they have in some degree put on modern forms— which are probably of even earlier origin.

One of these is the promissory oath, though this is no longer the foundation of rights in private law, and is now used chiefly as a solemnity connected with entering upon a public office.

Another, however, is more important, and still impresses the influence of its origin upon its present condition. I refer to the contract of suretyship, though not to the modern accessory obligation, as this necessarily presupposes a prior or principal undertaking.

The surety of the ancient law was the hostage, and the giving of hostages was by no means confined to international law.

Hostages were given for the duel which was to determine the truth or falsity of an accusation, and the transaction was very near to the giving of similar security in the trial of a cause in court. This was the usual course of the Germanic procedure. The very earliest appearance of law was a substitute for the private feuds between families or clans, but as a defendant who did not peaceably

submit to the jurisdiction of the court might be put outside of the protection of the law, so that any man might kill him at sight, there was at first no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security. (Sohm, Proc. d. Lex. Sal., secs. 15, 23–25.)

In the English procedure it is a noticeable feature that security is given at every step, and very early the defendant accused of wrong was required to either find bail or go to prison. This security was the hostage of the earlier days, and later, when action for punishment and for redress were separated from each other, became the bail of the criminal law. The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured, and in some jurisdictions the old form of bail bond, bound "body for body," is still in use.

But debt is popularly regarded as the most ancient form of contract, and some knowledge of the history of the action of debt is essential to anything like an adequate understanding of many of the enlightened rules which make up the law of contracts at the present time; it will not be practicable, however, in this paper to extend the discussion beyond a single feature: that of consideration.

It is sometimes claimed that the English action of debt was adopted from the procedure of the Roman law. It is more probable, however, that the action is of purely German descent.

The substance of the plaintiff's claim, as set forth in the writ of debt, was that the defendant owed him so much and wrongfully withheld it. It stated merely the conclusion of law and not the facts upon which that conclusion was based. The old German complaint was similar.

In England and in Germany alike the defendant could answer in like general terms that he did not owe the plaintiff, and if the plaintiff had nothing to show for the debt the defendant's denial turned him out of court.

It seems strange that in this primitive procedure there should be found the origin of any substantial legal principle of importance at this time, yet here we are able to find the generally accepted origin of the doctrine of consideration in almost its present perfection.

It has been suggested by some that the doctrine of consideration was borrowed from the Roman law by the chancery, and, with some