the common law-第36节
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e impossible before breach from the perishing of the thing； or from change of circumstances the continued existence of which was the foundation of the contract； provided there was no warranty and no fault on the part of the contractor。 Whether the act of God has now acquired a special meaning with regard to common carriers may be left for others to consider。
It appears； from the foregoing evidence； that we cannot determine what classes of bailees are subject to the strict responsibility imposed on common carriers by referring to the Praetor's Edict and then consulting the lexicons under Nautoe； Caupones； or Stabularii。 The question of precedent is simply to what extent the old common law of bailment still survives。 We can only answer it by enumerating the decisions in which the old law is applied； and we shall find it hard to bring them together under a general principle。 The rule in Southcote's Case has been done away with for bailees in general： that is clear。 But it is equally clear that it has not maintained itself； even within the limits of the public policy invented by Chief Justice ＇203＇ Holt。 It is not true to…day that all bailees for reward exercising a public calling are insurers。 No such doctrine is applied to grain…elevators or deposit…vaults。 /1/
How Lord Holt came to distinguish between bailees for reward and others has been shown above。 It is more pertinent here to notice that his further qualification； exercising a public calling； was part of a protective system which has passed away。 One adversely inclined might say that it was one of many signs that the law was administered in the interest of the upper classes。 It has been shown above that if a man was a common farrier he could be charged for negligence without an assumpsit。 The same judge who threw out that intimation established in another case that he could be sued if he refused to shoe a horse on reasonable request。 /2/ Common carriers and common innkeepers were liable in like case； and Lord Holt stated the principle： 〃If a man takes upon him a public employment； he is bound to serve the public as far as the employment extends； and for refusal an action lies。〃 /3/ An attempt to apply this doctrine generally at the present day would be thought monstrous。 But it formed part of a consistent scheme for holding those who followed useful callings up to the mark。 Another part was the liability of persons exercising a public employment for loss or damage； enhanced in cases of bailment by what remained of the rule in Southcote's Case。 The scheme has given way to more liberal notions； but the disjecta membra still move。
Lord Mansfield stated his views of public policy in terms ＇204＇ not unlike those used by Chief Justice Holt in Coggs v。 Bernard； but distinctly confines their application to common carriers。 〃But there is a further degree of responsibility by the custom of the realm； that is； by the common law； a carrier is in the nature of an insurer 。。。。 To prevent litigation； collusion； and the necessity of going into circumstances impossible to be unravelled； the law presumes against the carrier； unless；〃 &c。 /1/
At the present day it is assumed that the principle is thus confined； and the discussion is transferred to the question who are common carriers。 It is thus conceded； by implication； that Lord Holt's rule has been abandoned。 But the trouble is； that with it disappear not only the general system which we have seen that Lord Holt entertained； but the special reasons repeated by Lord Mansfield。 Those reasons apply to other bailees as well as to common carriers。 Besides； hoymen and masters of ships were not originally held because they were common carriers； and they were all three treated as co…ordinate species； even in Coggs v。 Bernard； where they were mentioned only as so many instances of bailees exercising a public calling。 We do not get a new and single principle by simply giving a single name to all the cases to be accounted for。 If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers； as those words are now understood； and upon no others； it has never yet been stated。 If； on the other hand； there are considerations which apply to a particular class among those so designated；for instance； to railroads； who may have a private individual at their mercy； or exercise a power too vast for the common welfare；we do not prove that the ＇205＇ reasoning extends to a general ship or a public cab by calling all three common carriers。
If there is no common rule of policy； and common carriers remain a merely empirical exception from general doctrine； courts may well hesitate to extend the significance of those words。 Furthermore； notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law。 /1/ Hence it may perhaps be concluded that； if any new case should arise； the degree of responsibility； and the validity and interpretation of any contract of bailment that there may be； should stand open to argument on general principles； and that the matter has been set at large so far as early precedent is concerned。
I have treated of the law of carriers at greater length than is proportionate； because it seems to me an interesting example of the way in which the common law has grown up； and； especially； because it is an excellent illustration of the principles laid down at the end of the first Lecture。 I now proceed to the discussion for the sake of which an account of the law of bailment was introduced； and to which an understanding of that part of the law is a necessary preliminary。
＇206＇ LECTURE VI。
POSSESSION。
POSSESSION is a conception which is only less important than contract。 But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law。 The theory has fallen into the hands of the philosophers； and with them has become a corner…stone of more than one elaborate structure。 It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with the a priori doctrines of Kant and Hegel。 Those doctrines are worked out in careful correspondence with German views of Roman law。 And most of the speculative jurists of Germany； from Savigny to Ihering； have been at once professors of Roman law； and profoundly influenced if not controlled by some form of Kantian or post…Kantian philosophy。 Thus everything has combined to give a special bent to German speculation； which deprives it of its claim to universal authority。
Why is possession protected by the law； when the possessor is not also an owner？ That is the general problem which has much exercised the German mind。 Kant； it is well known； was deeply influenced in his opinions upon ethics and law by the speculations of Rousseau。 Kant； Rousseau； and the Massachusetts Bill of Rights agree that all men are born free and equal； and one or the other branch of that declaration has afforded the answer to the ＇207＇ question why possession should be protected from that day to this。 Kant and Hegel start from freedom。 The freedom of the will； Kant said； is the essence of man。 It is an end in itself； it is that which needs no further explanation； which is absolutely to be respected； and which it is the very end and object of all government to realize and affirm。 Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will。 He has extended his personality into or over that object。 As Hegel would have said； possession is the objective realization of free will。 And by Kant's postulate； the will of any individual thus manifested is entitled to absolute respect from every other individual； and can only be overcome or set aside by the universal will； that is； by the state； acting through its organs； the courts。
Savigny did not follow Kant on this point。 He said that every act of violence is unlawful； and seemed to consider protection of possession a branch of protection to the person。 /1/ But to this it was answered that possession was protected against disturbance by fraud as well as by force； and his view is discredited。 Those who have been contented with humble grounds of expediency seem to have been few in number； and have recanted or are out of favor。
The majority have followed in the direction pointed out by Kant。 Bruns； an admirable writer； expresses a characteristic yearning of the German mind； when he demands an internal juristic necessity drawn from the nature of possession itself； and therefore rejects empirical reasons。 /2/ He finds the necessity he seeks in the freedom of the human will； which the whole legal system does but recognize ＇208＇ and carry out。 Constraint of it is a wrong； which must be righted without regard to conformity of the will to law； and so on in a Kantian vein。 /1/ So Gans； a favorite disciple of Hegel； 〃The will is of itself a substantial thing to be protected； and this individual will has only to yield to the higher common will。〃 /2/ So Puchta； a great master； 〃The will which wills itself； that is； the recognition of its own personality； is to be protected。〃 /3
