tribunal. The following case of revocation of a patent by the Privy Council in the year 1745, acting under the powers reserved to it by the above clause in the letters patent will go far to confirm this view. In this year an order vacating Betton's patent for making British oil was made at a meeting of the Council, at which were present the King, the Archbishop of Canterbury, and other dignitaries. The order states that a petition for revocation had been presented by two makers and dealers in a similar oil, that the matter had been referred to the Law Officers, who reported that the petitioners had made good their case and that they were of opinion that the letters patent should be made void. Whereupon the Lords of the Committee of the Privy Council agreeing with the opinion of the Law Officers, the King was pleased to order that the patent should be made void, and an order to this effect was therefore signed by 7 of the Privy Councillors present. 54. THE HISTORY OF THE CARRIER'S THE HE extraordinary liability of the common carrier of goods is an anomaly in our law. It is currently called "insurer's liability," but it has nothing in common with the voluntary obligation of the insurer, undertaken in consideration of a premium proportioned to the risk. Several attempts have been made to explain it upon historical grounds, the most elaborate that of Mr. Justice Holmes. His explanation is so learned, ingenious, and generally convincing, that it is proper to point out wherein it is believed to fall short. 3 His argument is in short this. In the early law goods bailed were absolutely at the risk of the bailee. This was held in Southcote's Case, and prevailed long after. The ordinary action to recover against a bailee was detinue. But as that gradually fell out of use in the seventeenth century its place was necessarily taken by case; and in order that case might lie for a nonfeasance, some duty must be shown. There were two ways of alleging a duty: by a super se assumpsit, and by stating that the defendant was engaged in a common occupation. It was usual to include an allegation of negligence, from abundant caution, but that was This Essay was first printed in the Harvard Law Review, 1897, vol. XI, pp. 158-168. A biographical sketch of this author will be found prefixed to Essay No. 17, Vol. I of this Collection. The Common Law, Lecture V. *4 Co. 83 b; Cro. Eliz. 815. A fuller and better report than either of these is in a manuscript report in the Harvard Law Library, 42-45 Eliz. 109 b. 46 mere form.” Chief Justice Holt1 finally overthrew the doctrine of the bailee's absolute liability, except where there was a common occupation, or (of course) where there was an express assumpsit. The extraordinary liability of a carrier is therefore a survival of a doctrine once common to all bailments. Judge Holmes does not explain satisfactorily why this doctrine should not have survived in the case even of all common occupations, but only in the case of the common carrier of goods; nor does he account for the fact that the carrier is held absolutely liable, not merely, like the bailee once, for the loss of goods, but, unlike that bailee, for injury to them. The difficulties were not neglected from inadvertence, for he mentions them.2 But without laboring these points, his main proposition should be carefully considered. Is it true that the bailee was once absolutely liable for goods taken from him? It may be so; Pollock and Maitland seem to give a hesitating recognition to the doctrine, but the evidence is not quite convincing. 3 'In Lane v. Cotton, 12 Mod. 472, and Coggs v. Bernard, 2 Ld. Raym. 909; obiter in both cases. 'Page 199. Hist. Eng. Law, 169. [It is however certain that the Germanic common law of the Norman Conquest period did make bailees for hire, of all sorts (including innkeepers, pledgees, and carriers), responsible absolutely for the goods delivered, even when lost by theft, and regardless of negligence; e. g. Loersch, Aachener Rechtsdenkmäler aus den 130, 140, 150 Jahrhunderten, 1871, p. 115, Art. 63: “Weirt sache dat eyn gast geve synen vert zo halden gelt, golt, silver off ander have, ind dan deme werde dat gestolen worde, ind neyt van synen gude, dat were he schuldich deme gast zo richten"; Sachsenspiegel, II, 60, § 1: "Svelk man enen anderen liet oder sat perde oder en kleid oder ienegerhande varende have, to svelker wis he die ut sinen geweren let mit sime willen, verkoft sie die, die sie in geweren hevet, oder versat he sie, oder verspelet he sie, oder wert sie ime verstolen oder afgerovet, jene die sie verlegen oder versat hevet, die ne mach dar nene vorderunge up hebben, ane uppe den deme he sie leich oder versatte; 99 so also ib. III, 5; 4. This rule was inseparable from the notion of gewere, or seisin, and from the corresponding action of the bailee against the thief and the lack of action by the bailor against the thief, a connection expressly mentioned in the Year Book cases cited post, p. 152, note 4, and fully expounded by the historians of Germanic law: Heusler, Institutionen des deutschen Rechts, 1885-6, I, 390-96, II, 191, 203, 212; Brunner, Deutsche Rechtsgeschichte, 1892, II, 509, 510; Jobbé-Duval, La revendication des meubles en droit français, in Nouv. revue hist. de droit fr. et étranger, IV, 1880, p. 463, at p. 475, note 1 (Laband, Vermögensrechtliche Klagen, 1869, p. 67, is explainable otherwise). This being so (and the presumption being that No one versed in English legal history will deny that the bailee of goods was the representative of them, and the bailor's only right was in the proper case to require a return; and therefore that when a return was required it was incumbent upon the bailee to account. Nor can it be doubted that the law then tended to lay stress on facts rather than reasons, to hang the man who had killed another rather than hear his excuse. We should therefore not be surprised, on the one hand, to find that, where one had obliged himself to return a chattel, no excuse would be allowed for a failure to return. On the other hand, by the machinery of warranty, it was always possible to explain away the possession of an undesirable chattel; why not to explain the non-possession of a desired one? We should therefore not be greatly surprised if the authorities allowed some explanation. Three actions were allowed a bailor against a bailee: detinue, account, and (after the Statute of Westminster) case. Let us see whether in either of these actions the defendant was held without the possibility of excuse. Case lies only for a tort; either an active misfeasance, or, in later times, a negligent omission. There must therefore be at the least negligence; and so are the authorities. The earliest recorded action against a carrier is case against a boatman for overloading his boat so that plaintiff's mare was lost; it was objected that the action would not lie, because no tort was supposed; the court answered that the overloading was a tort.1 So in an action on the case for neg ligently suffering plaintiff's lambs, bailed to defendant, to perish, it was argued that the negligence gave occasion for an action of tort.2 So later, in the case of an agister of cattle, the negligence was held to support an action on the the Anglo-Norman rule of the same period shared this fundamental idea), it is obvious that the conflict of precedents in England between the 1200s and the 1500s (as shown in this Essay) is more naturally explained as a growing effort to cut down an originally absolute liability than as an effort to increase an originally limited liability. other words, Mr. Justice Holmes' explanation fits perfectly with the tenor of the primitive law, while the learned Essayist's explanation does not fit at all. — EDS.] - 122 Ass. 41 (1348). 2 H. 7, 11, pl. 9 (1487). In case. 1 In these cases the action would not lie except for the negligence.2 In the case of ordinary bailments, therefore, negligence of the bailee must be alleged and proved to support an action on the case against him. I shall hereafter consider actions on the case against those pursuing a common occupation. In the action of account there is hardly a doubt that robbery without fault of bailee could be pleaded in discharge before the auditors. To the contrary is only a single dictum of Danby, C. J., and there the form of action is perhaps doubtful. Indeed, in Southcote's Case the court admitted that the factor would be discharged before the auditors in such a case, and drew a distinction between factor and innkeeper or carrier. In the action of detinue then, if anywhere, we shall find the bailee held strictly; and the authorities must be examined carefully. 5 The earliest authority is a roll where, in detinue for charters, the bailee tendered the charters minus the seals, which had been cut off and carried away by robbers. On demurrer this was held a good defence. The next case was detinue for a locked chest with chattels. The defence was that the chattels were delivered to defendant locked in the chest, and that thieves carried away the chest and chattels along with the defendant's goods. The plaintiff was driven to take issue on the allegation that the goods were carried away by thieves. A few years later, counsel said without dispute 6 1Moo. 543 (1598). The assumpsit is also mentioned in them; but this means, not a contract that they shall be safe, but an undertaking to perform a certain purpose. Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 909, 919. Fitz. Accompt, pl. 111 (1348); 41 E. 3, 3 (1367); 2 R. 3, 14 (1478); Vere v. Smith, 1 Vent. 121 (1661). 9 E. 4, 40 (1469). In an action of account, the court held that robbery could not be pleaded in bar, but if it was an excuse it must be pleaded before the auditor. Danby's remark, that robbery excuses a bailee only if he takes the goods to keep as his own, has no reference to the action itself. Brooke abridges the case under Detinue, 27. "Brinkburn Chartulary, p. 105 (1299). Fitz., Detinue, 59 (1315). According to Southcote's Case and Judge Holmes (Com. Law, p. 176), Fitzherbert states the issue to have been that the goods were delivered outside the chest. Neither the first (1516) edition of Fitzherbert, nor others (1565, 1577) to which I have access, are so. In the printed book (8 E. 2, 275) it is indeed laid down as |