meet this waste, he is forcibly prevented from eating. As before, the progress toward death by starvation is inevitable the connection between acts and effects is independent of any alleged theological or political authority. And similarly if, being forced by the whip to labor, no adequate return in food is supplied to him, there are equally certain evils, equally independent of sacred or secular enactment.

Passing now to these actions more commonly thought of as the occasion for rules of conduct, let us assume the man to be continually robbed of that which was given him in exchange for his labor, and by which he was to make up for nerve-muscular expenditure and renew his powers. No less than before is the connection between conduct and consequence rooted in the constitution of things; unchangeable by State-made law, and not needing establishment by empirical generalization. If the action by which the man is affected is a stage further away from the results, or produces results of a less decisive kind, still we see the same basis for morality in the physical order. Imagine that payment for his services is made partly in bad coin; or that it is delayed beyond the date agreed upon; or that what he buys to eat is adulterated with innutritive matter. Manifestly by any of these deeds which we condemn as unjust, and which are punished by law, there is, as before, an interference of the normal adjustment of physiological repair to physiological waste. Nor is it otherwise when we pass to kinds of conduct still more remotely operative. If he is hindered from enforcing his claim if class predominance prevents him from proceeding, or if a bribed judge gives a verdict contrary to evidence, or if a witness swears falsely; have not these deeds, though they affect him more indirectly, the same original cause for their wrongness? Even with actions which work, diffused and indefinite mischiefs it is the same. Suppose that the man, instead of being dealt with fraudulently, is calumniated. There is, as before, a hindrance to the carrying on of life-sustaining activities; for the loss of character detrimentally affects his business. Nor is this all. The mental depression caused partially incapacitates him for energetic activity, and perhaps brings on ill-health. So that maliciously or carelessly propagating false statements, tends to diminish his life and to diminish his ability to maintain life. Hence its flagitiousness. Moreover, if we trace to their ultimate ramifications the effects wrought by any of these acts which morality called intuitive reprobates if we ask what results not to the individual himself only, but also to his belongings - if we observe how impoverishment hinders the rearing of children, by entailing under-feeding or inadequate clothing, resulting perhaps in the death of some and the constitutional injury of others; we see that by the necessary connections of things these acts, besides tending primarily to lower the life of the individual aggressed upon, tend, secondarily, to lower the lives of all his family, and, thirdly, to lower the life of society at large: which is damaged by whatever damages its units."

These conclusions are not less true of the individual who has been deprived of his powers by the loss of a limb, and the deduction is inevitable that those rules of conduct which have for their object the lessening of these evil results are essentially ethical. But the evil having resulted, and the object of ethics being the decrease of pain and the promotion of pleasure, the inquiry naturally extends to the conduct which should follow; taking the situation as it is at any given time, what is the duty demanded by the principles of ethics? Assume that the injury under consideration is caused by the negligence of John Doe, without fault on the part of the party injured. Our object is to determine what mode of conduct is best calculated to reduce the suffering, both physical and mental, and to promote the greatest amount of pleasure, either in the individual or in the community as a whole. It is impossible, in the time which it is practicable to devote to the subject at this time, to follow out all of the ramifications of right and wrong conduct in its relations to the individual and to society at large, but enough may be suggested to make the point clear. We cannot restore the limb, but recognizing that the injury has resulted in decreasing the earning capacity of the man, we may attempt to compensate him for the pain he has endured, as well as for his loss of earning power. This will tend to reduce the mental stress upon the individual; it will tend to prevent want and consequent physical deterioration on the part of those who are dependent upon him, and in a like manner the demands of society will be met. But who shall pay this loss? Shall society pay it, thus making the injured one suffer the humiliation of becoming, not an object of justice, but of charity, and to the extent that it draws from the resources of the general community, entailing upon them burdens which cannot excite pleasurable emotions? Shall society pay it, and thus encourage Doe and others to continue in their disregard of the rights of individuals, entailing pain and suffering, with the burdens which must follow to the community? Obviously not. Shall Doe pay these damages? To do so will cause him to suffer the displeasure which we naturally feel at parting with something which has cost us effort, and for which there is no return, and it may entail upon his family suffering for want of the means of living comfortably, and, following out the process, may inflict loss upon society. But if we assume Doe to be in good health and enjoying all of his faculties, at least in so far as these may have been affected by the injured person, it is plain that he is better prepared, after paying the damages, than the victim of his negligence to meet the demands of society, and if we give due prominence to the deterrent effect of placing a burden upon the person guilty of the wrong, the conclusion must follow that the amount of pain resulting from this latter course will, in the aggregate, be infinitely less than that which must result either from compelling the individual to bear the burden alone, or of society assuming the obligation

entailed upon it by the carelessness of one of its itself as in some measure a check upon aggression; members.

since the motive to aggress is checked by the conIf, on the other hand, the injury resulted from the sciousness that a counter-aggression will come, if contributory negligence of the person injured, the not at once, then after a time." As all aggression amount of suffering imposed upon Doe, his family tends to the production of pain and the lessening of and society, if called upon to pay the damages, pleasures, anything which tends to discourage the would be approximately equal to that which would spirit of aggression without destroying the indibe suffered by the injured individual, and as the acci- vidual, has in it the potentiality of ethical advancedent was due to the contributory negligence of the ment. Among human beings in early stages, there injured man, without which it would not have hap- arose not only the practice of revenge but a belief pened, the deterrent lesson would be lost if Doe that revenge was imperative that it was a duty. was called upon to bear the burden. It is obvious, Sir George Grey tells us of the Australians that "the likewise, that there is no more reason why society holiest duty a native is called on to perform is that should pay for the loss than in the other case, since of avenging the death of his nearest relation, for it it would simply tend to encourage carelessness on is his peculiar duty to do so; until he has fulfilled the part of individuals, and thus to increase the sum this task, he is constantly taunted by the old women; of pain and unhappiness in the world. But, if the his wives, if he be married, would soon quit him; if injured individual, by his own carelessness, had put he is unmarried, not a single young woman would himself into a position of danger, and Doe, having speak to him; his mother would constantly cry, the opportunity, had still neglected to preserve the and lament she had ever given birth to so degenerlimb of the injured man, the same rule of right con- ate a son; his father would treat him with conduct which demanded in the first instance compensa- tempt, and reproaches would be constantly sounded tion from the wrongdoer would operate to charge in his ears." This idea of revenge extended among him in ethics with the damages sustained by the vic- the early tribes, not only to crimes as between inditim of his negligence. It is not material, either inviduals, but between tribes. The death or injury of the discussion of ethics or of the law, what particular a member of one tribe must be compensated by the injury is done; the principles are the same whether the loss sustained is of property or of the capacity to earn and accumulate property. Keeping in mind these facts, let us now turn our attention, not to the details, but to the principles of the law of negligence, as they have been unfolded in the gradual adaptation to the needs of a social organization increasing in complexity with each passing year.

death or equal injury of a member of the tribe committing the aggression. In the province of La Isabela, Philippine Islands, the Negrito and Ignorrote tribes keep a regular debtor and creditor account of heads, which is based upon the idea that the tribe must not be placed at the mercy of surrounding tribes by permitting its individuals to be killed off, while those of neighboring tribes increase and multiply.

"Among intelligent creatures the struggle for existence entails aggressions," says Mr. Spencer, We are told by Prof. F. Blumentritt that "blood and aggression leads to counter-aggression. Where vengeance is the sacred law with the Quainganes. If both creatures have powers of offense, they are likely one plebian is killed by another, the matter is settled both to use them; especially where their powers of in a simple manner by killing the murderer or some offense are approximately equal; that is where they one of his family who is likewise a plebian. But if are creatures of the same species; such creatures a prominent man or noble is killed by a plebian. being also those commonly brought into competi- vengeance on the murderer, a mere plebian, is not tion. That results of this kind are inevitable, and enough; the victim of the sin-offering must be an have an ethical basis, will be manifest on remem- equivalent in rank. Another nobleman must fall for bering that among members of the same species, the murdered noble, for their doctrine is: What kind these individuals which have not, in any consider- of an equivalent is it to kill some one who is no able degree, resented aggressions, must have ever better than a dog? Hence the family of the slain tended to disappear, and left behind those which noble looks around to see if it cannot find a relative have with some effect made counter-aggressions. of the murderer to wreak vengeance upon, who is As Mr. Spencer has pointed out in reference to man, also noble; while the murderer himself is ignored.” a certain degree of egoistic activities, a certain In a like manner, the Chinese of to-day think it degree of care for one's self, is necessary to self-sufficient if, in compensation for one of our people preservation, without which there can be no efficient who has been murdered, a victim is delivered up, development of the altruistic attributes, which are no matter whether the victim be the guilty party or essential to the realization of the highest ethical not. standards. So it is that every fight is a succession The element of equality thus early appears; it is of retaliations, a bite, a scratch or a blow being re- not so much the punishment of the criminal, as the turned in kind. These usually follow in quick suc- preservation of the equal standing or strength of the cession, but not always. There is a postponed re- family or tribe that is aimed at, and this is a developtaliation, and this is what we know as revenge.ment of the law of self-preservation, without which 'But the practice, alike of immediate revenge and tribes and families must perish, and the realization postponed revenge," says Mr. Spencer, "establishes of the ethical possibilities of the race would be

to be discharged by the payment of money to the wife or heirs of his victim, and this was the law of England up to the time of George III.

A quaint survival of the weregild, with the early law in reference to lesser injuries, is told in Hugo Grotius' Introduction to Dutch Jurisprudences, written while that great master of the law was confined as a State prisoner in the Castle of Loevestein in 1620, and it will be best appreciated in his own language:

4

checked in its progress. The principle of compensation in law makes its first appearance as a substitute for this personal retaliation, and the doctrine of the modern law of negligence is but a natural evolution from this germ. In Thurn in his account of the Guiana tribes tells us that "the smallest injury done by one Indian to another, even if unintentional, must be atoned for by suffering a similar injury," but enlightened jurisprudence has recognized the fact that this method of adjustment, lessening the economic value of the citizens and increasing the "If any one had been wilfully murdered, the burdens of society, is not called for where the corpse was brought before the judge, and, a commotive back of the injury is lacking in criminal plaint having been lodged on behalf of the deceased intent. This is the natural result of that higher by his nearest relatives, the living criminal, if appreorganization of society which depends for its wel- hended in the act, was led to the corpse, and therefare upon the industrial life of the community, and upon the relatives were reconciled to the criminal. it is not strange that in the ruder stages of develop- But, if the criminal was not to be found, the corpse nient, with the dissolving of the family or tribal had, nevertheless, to be inspected and an examinaorganization and the growth of the national idea, tion made as to whether the man had died by the when men became valuable to the State, either as act of man. When the complaint was afterward artisans or as warriors in a common cause, some-made, the corpse had to be produced in court thing of the nature of the Anglo-Saxon weregild naked, for no trial could take place, either in Holshould be found in nearly all systems of law. The weregild, according to Sir Matthew Hale, was a rate set down upon the head of persons of several ranks; and, if any of them were killed, the offender was to make good that rate to the kindred of the party slain." This weregild was usually divided into three parts, the first of which was called frith bete, and was paid to the king for the loss of his subject; the lord had another part for the loss of his man, and this was called man-bete, and the "kin of the slain for their loss had a third part, which was called mag-bete." By the laws of Ina the weregild differed according to the rank and degree of the person killed from thirty to one hundred and twenty sovereigns. Mr. Rapin suggests that this commutation was allowed only in the case of simple homicide, or at most manslaughter, which would be nearly analogous to our former statutory action for negligence resulting in death, but in view of the leniency shown by the law of England to those who were able to read like the clergy in cases of equal gravity, it is not difficult to suppose that the law contemplated wilful murder, except in those cases where it was by statute otherwise provided, as in the laws of Canute where a person who "should lie in wait for the life of the king" or commit a public notorious murder, was to suffer death, without redemption. But," says Sir Matthew Hale in his Pleas of the Crown, although the custom of weregild is abrogated here in England, and by the laws of this kingdom the punishment of homicide is regularly death, as shall hereafter be shown; yet, since there are in England two kinds of proceedings in punishing of homicide, the one at the suit of the heir or wife by appeal, the other at the suit of the king by indictment, the capital punishment of the offender may be discharged by all parties interested, namely, by the appellant by release, and by the king by his pardon," which would seem to indicate a system by which the murderer might hope

land or in the neighboring countries (especially in the province of Utrecht, where the custom was only abolished in the year 1349), except after complaint and in the presence of the corpse. Later on, however, as legal proceedings were protracted longer than in early times, so that a trial could not be finished before sunset or before dusk, it was arranged that the hand of the corpse should be cut off by the nearest relative to represent the corpse, and later still the avarice of officials introduced the custom of buying out the dead hand for money. The complainant was the nearest relative of the deceased, as the representative of the four quarters of the deceased, who, together with four other relations chosen by the relatives of the accused or by the judge, had to swear four times that he would accuse no man unjustly, after which, having publicly shouted his war-cry over the grave prepared for the deceased, he made his complaint to the God of Heaven, the Count of Holland, the bailiff of the place and all good men and true, stating how, where, when and by whose wilful act the deceased received his death wound in breach of the peace of the God of Heaven, the Count of Holland and the bailiff, and of all such peace as every innocent man was entitled to from others whom he had not injured, and demanding that the wrong should be redressed. After all this had been done the criminal was outlawed, and thereupon any relative of the deceased related to him within the degree of second cousins (for more remote consanguinity was not regarded as relationship) might strike the criminal, and, even if he killed him, he might make satisfaction by paying four pennings and placing the weapon with which he had slain him on his belly. Whoever assisted or attempted to assist the criminal, and whoever harbored or concealed the criminal forfeited the highest fine to the lord. The Count of Holland could not be reconciled to the criminal without the relatives, nor the relatives

over by

foundation and first principle of all the others. For the losses and all the damages which may happen this law, which commands man to search after and by the act of any person, whether out of imprudto love the sovereign good, being common to all ence, rashness, ignorance of what one ought to mankind, it implies a second law, which obliges know or other faults of the like nature, however them to unity among themselves, and to the love trivial they may be, ought to be repaired by him of one another; because, being destined to be united whose imprudence or other fault has given occasion in the possession of one only good, which is to to it. For it is a wrong he has done, even although make their common happiness, and to be united in he had no intention to do harm." He likewise lays it so straitly, that it is said that they shall be but down the rule that "those who, having it in their one, they cannot be worthy of that union in the power to prevent a damage, which some duty possession of their common end, if they do not obliged them to prevent, have neglected to do it, begin their union by linking themselves together may be made answerable for it according to the by the tie of mutual love in the way that leads them circumstances. Thus, a master who sees and sufto it. And there is no other law which commands fers the damage done by his servant, when he every one to love himself, because no one can love might have hindered it, is answerable for it," and himself better than by keeping the first law, and this rule is applied in our modern jurisprudence by steering the course of his life toward the fruition where persons or corporations are held liable for of that good to which it calls us. Although man injuries resulting to persons who have, by their was made to know and to love the sovereign good, own negligence, been placed in positions of danger, yet God did not put him immediately in possession but who might have been spared the injury by the of that end, but placed him first in this life as the exercise of reasonable care on the part of way to attain to it. And seeing man cannot move the person or corporation after the situation of the toward any objects by other steps than the light injured person was discovered, as in the case of a of his understanding and the motions of his will,, little child who was picked up on the fender of a God hath made the clear knowledge and the un- street car and carried along for some distance changeable love of the sovereign good, in which the and then allowed to fall off and be run happiness of the mind and heart of man does con- the car. sist, to depend on man's obedience to the law which commands him to mediate on and to love that only good, as much as he is able in this life, which He gives him for no other end but that he may employ it wholly in the pursuit of this object, the only one that is worthy to employ all his thoughts and to satisfy all his desires." Having carefully of conditions between the injured and those who laid his premises, Domat traces through many pages the evolution of the law among these lines, and tells us that under the civil law "he who inhabits a house, whether he be the proprietor of it, tenant or other, is liable for the damage which is caused by anything thrown out or poured out of any place of the said house, whether by day or by night. And he ought to answer for it to him who shall have suffered the damage, whether it was he himself who threw it out or any of his family or domestics, even though it were in his absence or without his knowledge." And so, "if an ox has a trick of pushing with his horns and wounds any one or causes any other damage, the master who has neglected to shut up this ox or to give such warning that people might avoid him, shall be answerable for the harm he shall do." This appears at this distance, a much more rational rule than that of the early Jews, who, if an ox gored a man, killed the ox and abstained from eating its flesh, while the English, in the time of Alfred, compensated the wounded man by giving him the ox.

Time and the patience of this audience forbids that we go into the many statements of the law which Domat has given us, in which all of the limitations and exceptions to the rules found in modern jurisprudence are suggested or stated, but he sums up the question concisely as follows: "All

If we cross the channel into England, turning back the time to the Elizabethan period, we shall still find the rules of law, based upon the rules of ethics, seeking to deter aggressions, either positive or negative, which shall result in injury or wrong to the individual, and which look to the equalizing

are responsible for the injury, without the weakening of the body politic more than is necessary to this end. "So," says Lord Bacon, "if a man be killed by misadventure, as by an arrow at butts, this hath a pardon, of course; but, if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will, and he shall be punished for the same as deeply as if he had done it of malice," for "in civil trespasses and injuries that are of an inferior nature, the law doth rather consider the damage of the party wronged than the malice of him that was the wrongdoer."

Puffendorf lays down, as among the absolute duties, or such as oblige all men antecedent to any human institutions, as not only the widest of all in its extent, but, comprehending all men on the bare account of their being men, the duty "that no man hurt another, and that in case of any hurt or damage done by him, he fail not to make reparation," and it is by a recognition of this duty that the law, as to-day administered, has resulted in advancing the ethical and material welfare of the community, in spite of the abuses which have been developed and the fallibility of human machinery to effectuate the ends of equal and exact justice. It is necessary, in our complex society, that rapid transit should exist; it has been thought necessary that great