The Common Law. Oliver Wendell Holmes

that it was reasonable that the law should do so. The reader will observe that they do not say simply that it is reasonable on grounds of policy to [30] sacrifice justice to the owner to security for somebody else but that it is reasonable to deal with the vessel as an offending thing. Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language.

      Let us now go on to follow the peculiarities of the maritime law in other directions. For the cases which have been stated are only parts of a larger whole.

      By the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability. The rule already prevailed, which has been borrowed and adopted by the English statutes and by our own act of Congress of 1851, according to which the owner 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 had earned. By the doctrines of agency he would be personally liable for the whole damage. If the origin of the system of limited liability which is believed to be so essential to modern commerce is to be attributed to those considerations of public policy on which it would now be sustained, that system has nothing to do with the law of collision. But if the limit of liability here stands on the same ground as the noxoe deditio, confirms the explanation already given of the liability of the ship for wrongs done by it while out of the owner's hands, and conversely existence of that liability confirms the argument here.

      Let us now take another rule, for which, as usual, there is a plausible explanation of policy. Freight, it is said, the mother of wages; for, we are told, "if the ship perished, [31] if the mariners were to have their wages in such cases, they would not use their endeavors, nor hazard their lives, for the safety of the ship." /1/ The best commentary on this reasoning is, that the law has recently been changed by statute. But even by the old law there was an exception inconsistent with the supposed reason. In case of shipwreck, which was the usual case of a failure to earn freight, so long as any portion of the ship was saved, the lien of the mariners remained. I suppose it would have been said, because it was sound policy to encourage them to save all they could. If we consider that the sailors were regarded as employed by the ship, we shall understand very readily both the rule and the exception. "The ship is the debtor," as was said in arguing a case decided in the time of William III. /2/ If the debtor perished, there was an end of the matter. If a part came ashore, that might be proceeded against.

      Even the rule in its modern form, that freight is the mother of wages, is shown by the explanation commonly given to have reference to the question whether the ship is lost or arrive safe. In the most ancient source of the maritime law now extant, which has anything about the matter, so far as I have been able to discover, the statement is that the mariners will lose their wages when the ship is lost. /3/ In like manner, in what is said by its English [32] editor, Sir Travers Twiss, to be the oldest part of the Consulate of the Sea, /1/ we read that "whoever the freighter may be who runs away or dies, the ship is bound to pay: the mariners." /2/ I think we may assume that the vessel was bound by the contract with the sailors, much in the same way as it was by the wrongs for which it was answerable, just as the debtor's body was answerable for his debts, as well as for his crimes, under the ancient law of Rome.

      The same thing is true of other maritime dealings with the vessel, whether by way of contract or otherwise. If salvage service is rendered to a vessel, the admiralty court will hold the vessel, although it has been doubted whether an action of contract would lie, if the owners were sued at law. So the ship is bound by the master's contract to carry cargo, just as in case of collision, although she was under lease at the time. In such cases, also, according to our Supreme Court, the master may bind the vessel when he cannot bind the general owners. /4/ "By custom the ship is bound to the merchandise, and the merchandise to the ship." /5/ "By the maritime law every contract of the master implies an hypothecation." /6/ It might be urged, no doubt, with force, that, so far as the usual maritime contracts are concerned, the dealing must be on the security of the ship or merchandise in many cases, and therefore [33] that it is policy to give this security in all cases; that the risk to which it subjects ship-owners is calculable, and that they must take it into account when they let their vessels. Again, in many cases, when a party asserts a maritime lien by way of contract, he has improved the condition of the thing upon which the lien is claimed, and this has been recognized as a ground for such a lien in some systems. But this is not true universally, nor in the most important cases. It must be left to the reader to decide whether ground has not been shown for believing that the same metaphysical confusion which naturally arose as to the ship's wrongful acts, affected the way of thinking as to her contracts. The whole manner of dealing with vessels obviously took the form which prevailed in the eases first mentioned. Pardessus, a high authority, says that the lien for freight prevails even against the owner of stolen goods, "as the master deals less with the person than the thing." /2/ So it was said in the argument of a famous English case, that "the ship is instead of the owner, and therefore is answerable." /3/ In many cases of contract, as well as tort, the vessel was not only the security for the debt, but the limit of the owner's liability.

      The principles of the admiralty are embodied in its form of procedure. A suit may be brought there against a vessel by name, any person interested in it being at liberty to come in and defend, but the suit, if successful, ending in a sale of the vessel and a payment of the plaintiff's claim out of the proceeds. As long ago as the time of James I. it was said that "the libel ought to be only [34] against the ship and goods, and not against the party." /1/ And authority for the statement was cited from the reign of Henry VI., the same reign when, as we have seen, the Admiral claimed a forfeiture of ships for causing death. I am bound to say, however, that I cannot find such an authority of that date.

      We have now followed the development of the chief forms of liability in modern law for anything other than the immediate and manifest consequences of a man's own acts. We have seen the parallel course of events in the two parents—the Roman law and the German customs, and in the offspring of those two on English soil with regard to servants, animals, and inanimate things. We have seen a single germ multiplying and branching into products as different from each other as the flower from the root. It hardly remains to ask what that germ was. We have seen that it was the desire of retaliation against the offending thing itself. Undoubtedly, it might be argued that many of the rules stated were derived from a seizure of the offending thing as security for reparation, at first, perhaps, outside the law. That explanation, as well as the one offered here; would show that modern views of responsibility had not yet been attained, as the owner of the thing might very well not have been the person in fault. But such has not been the view of those most competent to judge. A consideration of the earliest instances will show, as might have been expected, that vengeance, not compensation, and vengeance on the offending thing, was the original object. The ox in Exodus was to be stoned. The axe in the Athenian law was to be banished. The tree, in Mr. Tylor's instance, was to be chopped to pieces. The [35] slave under all the systems was to be surrendered to the relatives of the slain man, that they might do with him what they liked. /1/ The deodand was an accursed thing. The original limitation of liability to surrender, when the owner was before the court, could not be accounted for if it was his liability, and not that of his property, which was in question. Even where, as in some of the cases, expiation seems to be intended rather than vengeance, the object is equally remote from an extrajudicial distress.

      The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

      On the other hand, in substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle