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ing to His Majesty several rates and duties upon offices and pensions, upon houses, upon windows or lights," etc. This statute consistently referred to its own exactions as “duties," although it referred to “the last assessment of the land tax," that is, the assessment of 1692, and confided its execution to “the commissioners of the land tax.”? The first general income tax law was the younger Pitt's famous statute of 1799,3 three years after the Hylton

This also levied “rates and duties” upon incomes, whether they “shall arise from lands, tenements, or hereditaments” or “from any kind of personal property or other property whatever or from any profession,” etc.

One of the things that is peculiarly striking about these clauses of the Constitution is the small amount of discussion which they apparently provoked at the time, a feature which would seem to indicate both a general recognition of the meaning of the terms used, and that that meaning was one which led to results satis factory to all. The only uniformity of meaning, as has been just stated, is to be found in the British statute book. If the words were used in that meaning, the general acquiescence in the result would be at once explained. It would show that the delegates did not worry about whether a tax on any particular subject of taxation would be regarded as a direct tax or a duty, because the Constitution was not understood to be binding the nation beforehand in any particular as to the selection. The evil feared was a combination of seven states, perhaps the seven small ones, to overassess the property, or lay discriminating duties upon the products, of the other six. The remedy was to prevent any apportionment of taxes otherwise than by the rule of population, and to prevent any levying of duties by a rule which should differ between one state and another. It would show a common understanding, tacitly assumed by everybody, that direct taxes must necessarily, ex vi termini, be laid by some rule of apportionment, so that the only question was what the rule of apportionment should be; while duties, imposts, and excises must as necessarily be levied without apportionment, so that the only question was whether they should be uniform throughout the United States, or whether Congress should be allowed to levy special duties in particular localities.

1 31 Geo. II, c. 22.
2 See also Mr. Pitt's Consolidated Fund Act of 1787, 27 Geo. III, C. 13.
8 39 Geo. III, c. 13.

In other words, the former would be the general property taxes laid according to a general valuation, while the latter would include those on specific property, together with stamp duties, license duties, business duties, and duties on salaries and pensions. Taxes invented in the future (and the general income tax is one of these) would be left to be classified in the future.

Apportioned taxes have turned out a failure. They are difficult enough to assess within the limits of a state, and under control of a state board of equalization. They have been tried by the nation, and each trial was a failure. The last direct tax levied was paid back again. There will probably never be another. Whatever taxes are levied in the future will be levied under the rule of uniformity. If we are to amend the Constitution, a matter now so often discussed, we should not try to tinker it by introducing a specific exception to a broken down general rule. Amendments to the Constitution should conform to its main plan. They should be drawn on broad lines, and not introduce a multitude of special cases. If the apportionment clause is to be touched at all, it is as easy to repeal it altogether. If there are any taxes that ought to be left to the states (and a general tax upon all property at a valuation, a tax which necessarily involves an apportionment in order to avoid variations in the rate of assessment, is one of these), the constitutional amendment should distinctly specify them and simply state that the nation is not to levy them. All taxation not forbidden should be permitted, and it should all be uniform throughout the land.

Edward B. Whitney. New York.

1

157 U. S., at 572–3.
3 Act of March 2, 1891, C. 496.
• See Marshall, C. J., in McCulloch v. Maryland, 4 Wheat. (U. S.), at 407.

THE RIGHT
RIGHT OF BAILEES TO

OF BAILEES TO CONTRACT AGAINST LIABILITY FOR NEGLIGENCE.

BETWEE

ETWEEN the law of bailments as it stands today and as it

stood at the ancient common law is fixed a wide and remarkable gulf, whose broad expanse is bridged only by the everincreasing influence through the centuries of the law of contracts. The object of this article is to trace the progress of the law of bailments through the past and to study its present status, for the purpose of prophesying its probable future and discovering the direction it ought to take.

In the earliest English law there is some question whether the liability of bailees, including common carriers and others pursuing common callings, was that of insurance, or simply that of responsibility for negligence. Justice Holmes maintains that the liability of all bailees was that of insurance, and that the present so-called common law liability of common carriers and innkeepers is a fragmentary survival of the earlier law in regard to all bailees. Professor Beale defends the theory that at first bailees in general were liable only for negligence, and that the special liability of common carriers as insurers was established not even by the case of Coggs v. Bernard, but by the case of Forward v. Pittard." A middle theory holds that, according to the early law of England, all bailees pursuing a common calling were liable for some particular loss as insurers, but only common carriers were absolute insurers, and then not until the time of Lord Holt and Lord Mansfield ; that all bailees were liable in trespass and detinue (and therefore quasi insurers) when they had a cause of action over against the wrongdoer; that after the origin of the writ of trespass on the case bailees were also liable where they had undertaken to do something (assumpsit) and were guilty of misfeasance; and that later, through the confusion of the growing principles of contract with the old principles of tort they were liable for a mere omission as well. But, whatever theory be adopted, it is certain that some time in the history of the common law, by custom and public policy,

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all bailees became liable both for positive acts of misfeasance (negligence ?) and for strict neglects, and that some exceptional bailees were made absolute insurers except for the acts of God and the public enemy.

These common law doctrines, as found in their advanced form, were inherited by the commonwealths of the United States.?

We start, then, with this common law liability of bailees, liability imposed by the sound public policy of the ages, for this it was which created the duty on the part of those who received property belonging to others to keep it with diligence and return it or deliver it over at the end of the bailment. Independently of the agreement of the parties the law indicated where men should not be negligent. This marked the climax in the development of the principles of tort law so far as the subject of bailments is concerned. To use the language of evolution, it was the perfection of a species. From that time the law worked along another line, for the development of the species of contract in bailments. While in early English history, therefore, bailments was regarded as a tort subject and the duties of the relation were created by law independently of the agreement of the parties, it was soon realized that assumpsit was not the legitimate field of torts. The subject of contracts was made distinct and characteristic by the successive actions of debt, covenant, and assumpsit, and further and further invaded the territory of bailments and carriers, until now it is natural to ask whether there is longer left in bailments and carriers any law of torts. Yes, it has not been supplanted. Its application is sometimes simply co-ordinate with that of contracts, sometimes still exclusive of contracts; but always, in the absence of agreement, there continues to rest upon the bailees of the different classes the general duty, created by the common law, to exercise slight, ordinary, or high diligence, or to insure, as the

1 Holmes, The Common Law, 164-205; 11 Harv. L. Rev. 158–168; Coggs v. Bernard, 2 Ld. Raym. 909; Doorman v. Jenkins, 2 Ad. & El. 256; Schiells v. Blackburne, 1 H. Blk. 158; Vaughan v. Menlove, 3 Bing. N. C. 468 ; Handford v. Palmer, 2 Brod. & Bing: 359; Searle v. Laverick, L. R. 9 Q. B. 122 ; Calye's Case, 8 Coke 32; Forward v. Pittard, 1 T. R. 27 ; Story, Bailments, $ 332.

2 Tracy v. Wood, 3 Mason (U. S.) 132; Eldridge v. Hill, 97 U. S. 92 ; Preston v. Prather, 137 U. S. 604; Spooner v. Mattoon, 40 Vt. 300 ; Thompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Wood v. McClure, Ind. 155; Commercial Bank v. Martin, I La. Ann. 344 ; Stewart v. Western, etc., Co., 4 Biss. (U. S.) 362; Cutler v. Bonney, 30 Mich. 259; Black v. Chicago, etc., Co., 30 Neb. 197; McPadden v. Central, etc., Co., 44 N. Y. 478.

case may be. So that, ordinarily, a bailor may elect to sue in either tort or contract. This is right. It registers the common opinion as to the diligence such parties ought to exercise, and where they have not particularized as to the diligence they desire, it prevents the parties from escaping from all diligence. Every man owes a duty to every other not intentionally, or negligently, to injure him.

But a more difficult question concerns us here. Granting that, in the absence of particular agreement, the tort duties still survive, if the parties so desire; can and should they be allowed by contract to lay aside all these tort duties and themselves determine just what their duties, rights, and liabilities to each other shall be?

Answering the first half of the question, so far as English law is concerned, although there are very few cases involving gratuitous and ordinary bailees, and the difficulty of tracing the development of the freedom of contract is consequently enhanced, yet there is no difficulty in knowing what the final outgrowth of the development has been. All liability for negligence may be excused. To that extent the parties may make any terms they desire.?

In the United States the history of the growth of the power of contract, like that of all other branches of the law, reveals a condition of strange perplexity. Every possible holding here finds an exponent, a champion. While, as in England, most of the instances of contract encroachments occur in connection with the exceptional bailments, doubtless because of the greater anxiety to get away from the more stringent common law liability there, yet the few existing cases on the unexceptional bailments cannot be styled harmonious. Almost unanimously it is held that bailees may increase the duty which they would otherwise be under, but to what extent they may decrease that duty is not clear. However, if the expression “gross negligence" be understood to include only wilful acts, probably a majority of the courts in the United States hold that the parties to the bailments under consideration may substitute for the common law any liability they may agree upon, except to excuse fraud, or wilful wrongdoing, or to violate any positive prohibitions of law. This would allow them to stipulate against liability for negligence in any degree.3

1 Holmes, The Common Law; Pollock & Maitland, Hist. of Eng. Law; Bigelow, Torts; State v. Chew Muck You, 20 Ore. 215.

2 Walter v. Railroad, 2 E. & B. 750; Van Toll v. Railroad, 12 C. B. (n. s.) 75. 8 Lee v. Baldwin, 10 Ga. 208; Marks v. New Orleans Cold Storage Co., 107 La.

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