CJornpll IGavu ^rfynnl IGibtaty 
 
Cornell University Library 
 KD 1949.3.P63 
 
 Two__chapters in the law of torfs.by Fran 
 
 TWO CHAPT 
 
 -Lspss^r 
 
 IN THE 
 
 LAW OF TORTS. 
 
 l.—THE REASONABLE MAN. 
 II.— THE UNKNOWN WORKMAN. 
 
 FRANCIS TAYLOR PIGGOTT, 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; PROCUREUR AND ADVOCATE- 
 GENERAL, MAURITIUS; LATE LEGAL ADVISER 
 TO THE JAPANESE CABINET. 
 
 LONDON: 
 
 WILLIAM CLOWES AND SONS, LIMITED, 
 
 Hafo ^ubltejm ant) Uooltjscllcrs, 
 
 27, FLEET STREET. 
 
 1898. 
 Price One Shilling and Sixpence. 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022348399 
 
TWO CHAPTERS 
 
 LAW OF TORTS. 
 
BY THE SAME AUTHOR. 
 
 THE LAW AND PRACTICE 
 OF THE COURTS OF THE UNITED KINGDOM 
 
 RELATING TO 
 
 FOREIGN JUDGMENTS 
 
 AND 
 
 PARTIES OUT OF THE JURISDICTION. 
 Second Edition, Revised and Enlarged. Price 3CW. 
 
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 Royal 8vo, cloth. 2\s. 
 
 PRINCIPLES OF THE LAW OF TORTS. 
 
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TWO CHAPTERS 
 
 IN THE 
 
 LAW OF TORTS 
 
 I.— THE REASONABLE MAN. 
 U.— TBE UNKNOWN WORKMAN. 
 
 FRANCIS TAYLOR PIGGOTT, 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; PROCUREUR AND ADVOCATE- 
 GENERAL, MAURITIUS; LATE LEGAL ADVISER 
 TO THE JAPANESE CABINET. 
 
 LONDON: 
 
 WILLIAM -CLOWES AND SONS, LIMITED, 
 
 Safe publishers anil Uoohscilcrs, 
 
 27, FLEET STREET. 
 
 1898. 
 
NOTE BY AUTHOR. 
 
 These two chapters in the Law of Torts were 
 
 delivered as Lectures to the students of the 
 English Law School in Tokyo, Japan. They 
 deal with two personages who have figured 
 largely in the evolution of the English Law of 
 Torts. The study of their characters is, I think, 
 of sufficient interest to English students to 
 excuse the publication of this little treatise. 
 
 F. T P. 
 
 Mauritius, 
 June, 1898. 
 
TWO CHAPTERS IN THE 
 LAW OF TORTS. 
 
 i. 
 
 THE REASONABLE MAN. 
 
 I have accepted, with the greatest possible pleasure, 
 the invitation of your President to address you to-day ; 
 but I will freely confess that that pleasure has not been 
 wholly unalloyed, for, giving me the whole range of 
 Law, he desired me to choose my own subject. There- 
 upon a whole army of subjects presented themselves for 
 my consideration ; there came flitting by me ghosts of 
 ideas which once had half persuaded me to discuss them, 
 but which had died of inanition when my good intentions 
 had sunk into the pavement of the nether world. I was 
 tempted to talk to you of the history and tradition of our 
 law, and to excite your admiration for a system which 
 compels us to seek its doctrines in books written in a 
 quite forgotten language, and in characters which have 
 long since passed into obscurity and which only those 
 may read who loiter by the way. Or to expatiate to you 
 on the subtle beauties of a law whose perfect whole is 
 
8 TWO CHAPTERS IN THE LA W OF TORTS. 
 
 divided into two parts, that which is known and has 
 already been expounded, and that which is only unknown 
 because the occasion for its exposition has not yet arisen. 
 The charm and perfection of the matter is that this 
 unknown part always remains the greater ; fifteen years' 
 study finds me not much further from the threshold than 
 you who have but just opened our text-books. Yet 
 this unknown law is a written law, as you well know, 
 the roll of it being variously and curiously described 
 as "The Clouds," or "The Judicial Bosom." I was 
 tempted, too, to discuss the merits of an unwritten law 
 as compared with those of a Code : but though I can 
 scarcely avoid touching on the question, I am in public 
 duty bound to say nothing that should in any way tend 
 to make you dissatisfied with the great projects of your 
 Government in the matter of Codes, even if I thought, 
 which assuredly I do not, that there existed any better 
 way of dealing with so momentous a national problem. 
 Again, I was tempted to unravel for you some of those 
 written mysteries which are to be found in what is 
 facetiously termed " The Statute Book," but which after 
 much patient revision and excision of dead parts is hardly 
 to be contained in five-and-twenty very ponderous and 
 portly volumes : but I could do nothing which should in 
 the slightest degree incite the principes and sapientes of 
 this Eastern Kingdom to follow the example of the 
 British legislator who makes of the path of duty a 
 labyrinth wherein not even the wariest can walk with 
 safety. I trust that the Japanese lawyers will never 
 have this means furnished to them for growing rich. 
 
THE REASONABLE MAN. 9 
 
 But, because I am an English lawyer who is not a little 
 proud of his law, and because you are Japanese who are 
 eager to study it, I felt that I must talk to you somewhat 
 more specifically of the great Common Law of England. 
 For in spite of the cohort of Continental lawyers who, 
 most harmoniously I feel sure, have assisted your own 
 lawyers in the perfection and elaboration of your new 
 Codes, I believe that the study of English law, in the 
 peculiar method of its training, will work for much good 
 to you who have willingly subjected yourselves to it ; 
 and in the results of that method, when you have attained 
 the goals of your ambition, will work for infinite benefit 
 to the community, who will derive assistance and receive 
 judgment at your hands. I mean in this to pay some- 
 thing more than a passing compliment to your school. I 
 believe, that when that good time comes, and your 
 Sovereign looks for "such as know the law and mean 
 duly to observe it " to represent him in his courts, and to 
 do the right on his behalf between his people, between 
 those who owe him full allegiance and those who owe 
 him temporary allegiance, he will choose many of them 
 from among those who studied English law in this school 
 and have received their diplomas from its distinguished 
 professors. For the peculiar methods of thought, which 
 the duty of ascertaining the law applicable to any given 
 set of circumstances under an unwritten law imposes, are 
 those which go far to make up the qualifications of a 
 good judge. Every case that presents itself for opinion 
 comes as a problem in favour of whose solution either 
 way there are instances without end to be cited. An 
 
io TWO CHAPTERS IN THE LAW OF TORTS. 
 
 acute advocate could argue for either side, citing case 
 upon case in favour of his various contentions ; but the 
 advice which he has to give in his chambers upon the 
 case, and the judgment which the judge has to pronounce 
 upon it from the bench, demand equally a calm and dis- 
 passionate holding of the balance between the conflict of 
 opposing analogies. And therefore it is that the judicial 
 habit of mind has to be assumed by English lawyers 
 with the very first brief with which it is their good 
 fortune to be entrusted. 
 
 The soul of English law finds expression in one 
 word, Precedent : and I believe that the rule of law is 
 stronger when it is based on a law of precedent than it 
 is when it depends on a law of rules. Precedent must 
 always be weak when the Court seeks the law in the 
 rule and not in the example. The form in which a case 
 presents itself to the mind of the judge is : Does the case 
 come within a given rule of law ? He is disinclined, 
 unless he is obliged, to look at other cases to which 
 other judges have applied the rule. With us the 
 question is : Does the case come within such and such 
 an interpretation of a given rule ? The judge is bound 
 to follow in the steps of those of equal or higher degree 
 who have had the same question before them. And 
 if, as I was half persuaded to, I had made my address 
 to you one "in praise of English law," I should have 
 set this rule of precedent in the foremost place. For 
 it is in this respect, I believe I am not wrong in saying, 
 that the administration of English law differs so consider- 
 ably from that of the law of other European nations. 
 
THE REASONABLE MAN. n 
 
 Again I come back to that interesting question, What 
 influence can the study of English law have on Japanese 
 law ? I have answered it once : it will train good judges. 
 I now give a second answer : it may help to make the 
 rule of precedent the guiding principle for the interpre- 
 tation of the Codes. 
 
 I propose, however, to discuss with you to-day the 
 spirit of the English Common Law. 
 
 And to this end I shall talk to you about a most 
 interesting person who is the creation of that law and 
 who probably is not altogether unfamiliar to you : he 
 is called the reasonable man. His character, however, 
 is not yet fully developed : and the reason for this will 
 be apparent from what I have already said : but the 
 Courts are busy the year through, the long summer days 
 excepted, in perfecting it. Not a day passes but some 
 fresh quality is added to, or some fresh example is given 
 of his already delightful character. Who and what is 
 he ? He is a man only of average intellect and intelli- 
 gence, and not transcendently wise. He is very human : 
 his wisdom is only of the common worldly sort ; he 
 cannot foresee the unexpected ; though he learns from 
 past experience, he is not one of whom we say con- 
 temptuously he is wise after the event ; acting circum- 
 spectly himself, he is not extreme with his neighbours, 
 requiring them to be more than careful ; he begs them 
 only to act circumspectly too ; he is most particular not 
 to do harm to his fellows deliberately ; and when he 
 does injure them we cannot blame him, for we know that 
 it must have been from sheer necessity, or that it was 
 
12 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 unintentional and that things could scarcely have 
 happened otherwise. Indeed, he will often avoid causing 
 people trouble which after all every one would have said 
 had served them right. Do you not recognize him in 
 this sketch ? Let me fill in some details from some very 
 familiar examples of his behaviour in everyday life. He 
 sees a donkey tied up in the middle of the Ginza, and 
 tied up too by some very careless person ; he does not 
 drive over it, you may be sure ; he will avoid it if he 
 possibly can, and so spare the donkey's feelings, its 
 master's purse, and his own carriage. When he orders a 
 workman to come to his house to repair the paper of the 
 shoji, he will be careful not only to tell his boy to close 
 the trap-door in the passage, but he will see to it himself 
 lest the workman should be unfortunate enough to trip 
 over it. If he is stopping at the Fujiya at Miyanoshita, 
 he will not ask a pretty nesan to fetch the gun he has 
 left upstairs, unless he is quite sure that it is not loaded : 
 does he not know that nesan are inquisitive little maidens ? 
 and it would be cruel, unwise, unreasonable, to put so ■ 
 frail a daughter of Eve (Isanami is, I think, our first 
 mother's Japanese name) in so imminent and great a 
 danger. He digs a well close to the highway. He 
 knows that many people come and go along it by night 
 and day, and some less warily than others, according 
 to their nature ; and though the well is in his own plot 
 of land, he is careful to fence it round lest the unwary 
 stumble and fall into it. And if he speaks of others 
 concerning their credit he will speak discreetly, saying 
 only such things as he knows or believes to be true, 
 
THE REASONABLE MAN. 13 
 
 lest the person who has questioned him should act to his 
 own or to that other's detriment. But sometimes in this 
 matter of spreading evil report, a sense of duty will 
 compel him to speak, though he is not sure that the 
 report is true ; yet in such cases he will speak 
 without malice, and only to such persons as have a 
 direct interest in knowing the report whether it be 
 true or false. And so, less particularly, he keeps his 
 savage dog securely chained up, lest it rush out and 
 bite the passers-by ; his vicious horse is kept within his 
 paddock, lest it stray upon the highway and kick the 
 neighbour's children at their play ; his bridges that span 
 public roads are well looked after, lest the mortar should 
 decay with time, and the bricks, being shaken, fall on 
 inoffensive heads ; his wire fences are always in good 
 repair, lest his neighbours' cattle eat the rusty strands and 
 die, or get through and, after their nature, fight his own 
 beasts so that both are injured. These and such-like 
 things you know the reasonable man will assuredly do. 
 But, as I have said, he is only a reasonable man, not a 
 very reasonable man ; and therefore there are many 
 things which you cannot expect him to do. Thus, if he 
 digs a well in his garden, but at some distance from the 
 highway, he will warn those who come upon his land 
 legitimately and whom he may expect to come there ; 
 but he will not necessarily fence it, for those who do not 
 come there by his leave or on his business are trespassers, 
 and with such he has no concern. He is not careful of 
 those who know of dangers and deliberately incur the 
 risks. He does not fence in the roof of his house when 
 
14 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 he tells a workman to mend the tiles, or gives an artist 
 leave to sit there to take a bird's-eye view of the great 
 city below. 
 
 I think these few examples of the good he does, and 
 the evils we cannot blame him for, will suffice to remind 
 you of the position which this interesting personage fills 
 in English law. His character is the model to which 
 on all occasions we have to conform in our everyday 
 life and dealings with our neighbours. I say on all 
 occasions deliberately, although, as you well know, in 
 many parts of the Common Law the duties laid down 
 are of a character more precise than that of conforming 
 to what perhaps is after all only an imperfectly defined 
 ideal. That part of the law which deals with contracts 
 lends itself more readily to the formation of precise 
 rules ; in commercial affairs the circumstances of one 
 case are often identical with those of another. What 
 happens to-day when A contracts with B will happen 
 to-morrow when B contracts with C, the next day when 
 C contracts with D, and so on through the year and 
 through the alphabet. So in the Law of Torts, con- 
 cerning the many things which, alas for poor humanity, 
 are happening every day (in Europe, at least), the 
 assaults and batteries, the frauds, the libels, the con- 
 versions, and the trespasses, it has been possible to lay 
 down and elaborate many precise rules, which are 
 practically the legal translation of the sixth, seventh, 
 eighth, and ninth paragraphs of the old Jewish Law ; 
 and when you study the law applicable to these 
 special subjects, you are studying the thousand and one 
 
THE REASONABLE MAN. 15 
 
 illustrations of the way in which these simple duties 
 have been broken by the weaker brethren. You learn, 
 for example, that a threat, even when there is no actual 
 violence, may be an assault ; that the least touching 
 of another in anger is a battery ; that to tell a trades- 
 man he may trust your friend whom you know to be 
 insolvent is fraudulent ; that to say of a barrister, "He 
 is no lawyer," is to slander him ; that to withhold 
 another's property amounts to a conversion ; and that 
 to walk in another man's garden is a trespass. But 
 though these elementary rules of the Law of Torts, 
 and the equally elementary rules of the Law of Con- 
 tract, are simple, well-known, and precise, they are none 
 the less the rules by which the reasonable man will 
 regulate his behaviour. They are not arbitrary, nor 
 are they difficult either to understand or conform to. 
 In judging of men who have violated them, it is not 
 necessary to make a direct appeal to our ideal, simply 
 because long experience has taught us that they are of 
 the very essence of his daily regard for his neighbours. 
 But when you get away from these simple rules and begin, 
 in either of the two great branches of the Common Law, 
 to inquire more deeply into any of these special matters, 
 to examine the limits and exceptions to the fundamental 
 rules, you come at once to the appeal to the ideal, you 
 find at once the question of right and wrong determined 
 upon by direct reference to the standard of the reason- 
 able man. Take for example so simple a case in the 
 Law of Contracts as the interpretation of the rule you 
 doubtless are very familiar with, that " Time is not of the 
 
1 6 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 essence of the Contract : " this means not only that goods 
 must be paid for if they are delivered within reasonable 
 time whether so soon as they are wanted or not ; but 
 also that they need not be taken unless they are so 
 delivered : " reasonable time " meaning, of course, the 
 time which our friend the reasonable man, if he had the 
 order, would have taken to deliver the goods. And so 
 it is in the specific branches of the Law of Torts. Such 
 a threat as "If you are not quiet I will blow your brains 
 out," will be an assault or not according as the fear of 
 bodily harm which the words engender is or is not 
 reasonable. The law only allows a person assaulted to 
 lay gentle hands on his assailant ; and if he is unreason- 
 able in his defence he is himself guilty of an assault and 
 battery. A statement made in answer to a question, as to 
 a man's credit, for instance, though untrue, is not fraudu- 
 lent if the speaker had reasonable grounds for believing 
 it to be true. The whole of that part of the Law of 
 Libel which deals with privilege, and which exempts 
 from liability those who speak what is false concerning 
 others, makes the privilege depend on whether in speak- 
 ing they have behaved reasonably or not. A conver- 
 sion is justified if there were reasonable grounds for 
 believing that the goods belonged to a third person. 
 A trespass even is justified by necessity, which means 
 nothing else than a reasonable necessity ; as where a 
 certain river overflowed and had rendered the towpaths 
 impassable, the towers were held justified in going on 
 to the adjoining field, yet only on that part of it next 
 the river. 
 
THE REASONABLE MAN. 17 
 
 But these well-known and specific branches of the 
 Law of Torts do not contain the expression of the 
 whole duty of man to his neighbours. There is, as 
 you well know, a very large portion of that law which, 
 under the head of Negligence, deals with all those 
 thousand and one complex incidents of daily life which 
 give rise to what are called accidents, but as to which 
 it is impossible to lay down any precise definitions of 
 duty. The law does not say, for example, and indeed 
 it could not say, you may not drive a carriage through 
 the street, in the same way that it says you may not 
 strike another ; it does not say you may not keep a 
 restive horse in your field, in the same way that it says 
 you may not walk in another man's garden. But what 
 it does say is, if you do drive a carriage through the 
 street, you must drive it carefully — that is, without 
 negligence ; if you do keep a restive horse in your 
 field, you must take proper precautions to keep him 
 from straying out of it. A number of similar examples 
 will occur to all of you who have learnt the elements 
 merely of the law of negligence. In the two that I 
 have given, and in the many which you will remember, 
 there occur certain expressions which so far as ordinary 
 language goes are perfectly intelligible, but which, when 
 we come to look more deeply into the matter, we find 
 are wanting in the precision which ought to characterize 
 legal language, more especially when it is dealing with 
 matters so important as right and duty. These 
 expressions are : carelessly, improperly, recklessly, negli- 
 gently, and so on. But if the breach of duty be thus 
 
18 TWO CHAPTERS IN THE LAW OF TOUTS. 
 
 expressed, the duty itself must also be capable of expres- 
 sion in corresponding terms, thus : on such and such 
 occasions to act with care, properly, heedfully, or without 
 negligence. But what does acting properly mean unless 
 there is somewhere to be found a standard of propriety ? 
 or what does acting negligently mean unless we know 
 of some standard enabling us to draw a line on the 
 one side of which will lie acts to be deemed wrongful 
 as being done with negligence, and on the other side 
 acts to be deemed not wrongful as being done without 
 negligence? It is this standard which the English law 
 supplies in the person of the reasonable man ; and its 
 broad canon of behaviour is, on all occasions, at all times 
 and in all seasons, to conform to this standard. 
 
 It is of the utmost importance that you should fully 
 appreciate the way this standard is arrived at, and I 
 beg your attention most particularly to this matter, as 
 it is a little confusing, and many writers have not suc- 
 ceeded in making the principle perfectly plain. A very 
 learned American author puts this case : " Suppose a 
 blacksmith were to find a watch by the roadside, and 
 discovering it to be full of dirt and gathering rust, 
 should attempt to clean it and put it in order, and in 
 doing so, though exercising the greatest care, should 
 injure the watch ; if we have to answer the question, 
 did he act as a prudent man in his situation might 
 have done ? the answer could not but be in the 
 affirmative, for a watchmaker would have done the 
 same thing." This does seem at first sight to be 
 the result of the reference to an ideal. But in truth 
 
' THE REASONABLE MAN. 19 
 
 the answer would be in the negative. In the inquiries 
 did this person act reasonably? or, did he act as a 
 reasonable man would have done under the same 
 circumstances ? the point, as I understand the law, at 
 which we wish to arrive is, assuming him to be a 
 reasonable man, did he act reasonably or unreasonably 
 on this occasion ? To determine whether a blacksmith 
 acted reasonably or not under certain circumstances, 
 we do not compare his conduct with that of reasonable 
 men in the abstract, nor with that of reasonable 
 specialists in the concrete ; but simply with reason- 
 able blacksmiths. In inquiring whether that blacksmith 
 did act reasonably or not, we are compelled, it is true, 
 to set up an ideal ; but it is an ideal blacksmith, and 
 nothing else. And so, to bring this question down to 
 matters of more frequent occurrence, such as driving 
 in thoroughfares, it seems clear that what would be 
 reasonable for one might be unreasonable for another. 
 For example, what would be reasonable for a man to 
 do in an emergency who was skilled in the management 
 of horses, would very probably be unreasonable for one 
 unskilled to attempt. The ideals would be, in the first 
 case, the conduct of the reasonable skilled man ; in the 
 second, the conduct of the reasonable unskilled man. 
 And generally, in order to determine whether what 
 a man has done is reasonable or not, we must put 
 in his place and under precisely the same conditions 
 a reasonable man, and endeavour to ascertain what he 
 would have done under the circumstances. If what 
 the man in fact did does not conform to this standard, 
 
2o TWO CHAPTERS IN THE LAW OF TORTS. 
 
 then the law says that he has acted unreasonably, and 
 is guilty of negligence. 
 
 The method by which the standard is arrived at is 
 an interesting one ; both judge and jury have a share 
 in determining it. The cases are easily divisible into 
 three classes. In the first we find the judge declaring 
 that the case speaks for itself, that on the face of it the 
 duty was clear, and therefore that no special evidence 
 of negligence is necessary. As. where two trains come 
 into collision, it is evident that some one has blundered, 
 and it is for the defendant to show the contrary if he 
 can. In the second class of cases we find the judge 
 declaring that on the facts before the Court there is no 
 evidence of a breach of duty : these are cases which in 
 common language we should call accidents. A man is 
 driving slowly down the street on a dark night, another 
 is crossing with all due care, but he slips and falls under 
 the horses' feet. There is no negligence here, and an 
 action would inevitably end in a nonsuit. The third 
 class of cases lies midway between the other two : and 
 as to these I cannot do more now than state the rule by 
 which they are governed, leaving it to you to trace its 
 application in your private studies. It is the duty of 
 the judge to say whether any facts have been established 
 by evidence from which negligence may be reasonably 
 inferred : the jury has then to say whether, from those 
 facts, negligence ought to be inferred. So, then, you 
 have these three classes of cases — those in which 
 negligence must be found ; those in which it cannot 
 be found ; and those in which it may be found : or, 
 
THE REASONABLE MAN. 21 
 
 those in which it is clear that a reasonable man would 
 not have acted as the defendant did ; those in which 
 it is equally clear that a reasonable man would have 
 acted as the defendant did ; and those in which it is 
 doubtful as to how a reasonable man would have acted, 
 and the assistance of a jury (presumed themselves to be 
 reasonable men) has to be invoked to determine the 
 matter. I have given you in this sketch the merest 
 outline of the law concerning reasonable men, but the 
 outline would be incomplete if I did not trespass still 
 further on your patience and show you how the same 
 idea runs through that branch of the law which you 
 know as " Contributory Negligence." Many an accident 
 is brought about through the carelessness of the injured 
 person himself. If a man, for example, runs recklessly 
 across a street in which there are many carriages, and 
 gets knocked down by one of them, whose fault is it 
 but his own ? He will have to pay the doctor's bill 
 himself. But this does not dispose of the whole matter. 
 The law, in requiring all men to conform to the standard 
 of reason, requires it on all occasions, even when they 
 have to deal with foolish and unreasonable people. A 
 reasonable man, if it is possible, will avoid injuring even 
 an unreasonable man. And therefore, in the case I have 
 supposed of a man running across a crowded thorough- 
 fare, it is the duty of a driver, even though he is not 
 driving recklessly, to pull out of the way if he can. If 
 he could have avoided running over the man, and 
 did not, the blame and the doctor's bill will rest 
 with him. 
 
22 TWO CHAPTERS IN THE LAW OF TOUTS. 
 
 Once again I must enunciate the rule and leave the 
 application of it to you : first, a plaintiff cannot recover 
 if with ordinary care he could have avoided the con- 
 sequences of the defendant's negligence ; secondly, a 
 plaintiff can recover if the defendant with ordinary care 
 could have avoided the consequences of the plaintiff's 
 negligence. 
 
 Apply these rules for yourselves to the case of the 
 donkey tied up in the middle of the Ginza, and you will 
 find that under some circumstances, if the axle of the 
 carriage is broken in driving over the animal, the 
 donkey-man will have to pay : and under other circum- 
 stances, if the donkey's leg is broken, the driver of the 
 carriage will have to pay. And if I held the brief for 
 a poor little nesan who has been injured by the loaded 
 gun she has been sent to fetch, and Mr. Masujima for 
 the defendant should urge that it was her own fault, 
 that her inquisitiveness was to blame and not his client, 
 I should answer him thus : it is the height of unreason 
 first, to leave loaded guns about at all ; and secondly, 
 to send a not too reasonable, though delightful, attendant 
 to fetch such a thing ; thirdly, if he would do these 
 things, not to foresee that what happened was almost 
 inevitable, unless the little cherub who looks after the 
 lives of nesan had providentially diverted the bullet in 
 its course. I can see in your faces that his client would 
 receive short shrift from you, were you his judges, and 
 that O Kiku-san would get her verdict with substantial 
 damages : and you may find good cause for your 
 judgment if you learn with diligence those chapters in 
 
THE REASONABLE MAN. 23 
 
 the Book of our Law, which are entitled "Contributory 
 Negligence" and "Remoteness of Damage." This, 
 then, is the substance of the whole matter. The English 
 law, in judging of men's behaviour whether it is right 
 or wrong, refers it to an ideal, but not to a very lofty 
 one. Having so much to do with the petty affairs of 
 everyday life — with the walking and the talking, with 
 the driving along the streets, and the keeping of dogs 
 and monkeys— it endeavours to ascertain and appreciate 
 the springs which influence the smallest of human 
 actions ; it endeavours to understand the weaker as 
 well as the stronger side of human nature, and with the 
 materials thus gathered, makes of its ideal quite a simple 
 ordinary mortal ; having to judge of things which 
 happen in the byways as well as in the highways of 
 existence, it endows him with the characters of those 
 who saunter along village lanes, as well as of those 
 whose life is spent in the busy throng of cities. It does 
 not insist on his leading the life of a recluse, rejoicing 
 rather to see him mix with the throng, and going where 
 his fellows most do congregate. And having thus 
 created an ideal it sets him to work to infuse a sweet 
 reasonableness into the lives of men. His is a character 
 which I think should be especially appreciated by 
 Japanese, for, as you will have observed, in many things 
 it much resembles theirs. 
 
 Let me, in conclusion, express a hope that those who 
 administer your Codes and those to whom your Consti- 
 tution gives authority will find you all, if not perfectly 
 reasonable, at least not unreasonable men. 
 
II. 
 
 THE UNKNOWN WORKMAN. 
 
 On the last occasion when I had the honour of address- 
 ing you, I spoke at some length concerning the reason- 
 able man. To-day I propose to talk to you about the 
 position which another prominent person in everyday 
 life holds in English law. Him I call the Unknown 
 Workman. 
 
 In my former lecture I endeavoured to show you 
 that the English Common Law, unscientific, chaotic, 
 as many of its critics contend that it is, does rest, if we 
 tread the track through a very forest of decisions, on a 
 substantial basis of principle. On this basis all the great 
 edifice of our case law has been reared : to this principle 
 all the appalling array of our rules has an ultimate 
 reference. The English law, in establishing its great 
 canon that all men must at all times and in all seasons 
 conform to the standard of reason, and in leaving the 
 standard itself to be determined by twelve men drawn 
 promiscuously from the reasonable community, en- 
 deavours to fulfil the great function of law ; in order 
 that the right or the wrong of any human action may 
 be determined, to appreciate the springs of human 
 actions in general, and above all to study the weak 
 
THE UNKNOWN WORKMAN. 25 
 
 side of human nature as well as the strong. And so our 
 law requires conformity to a standard which is no 
 Utopian ideal, but is based on the common course of 
 conduct among the community to which the person 
 belongs whose action has to be judged. A deep insight 
 into the lives ruled can alone give satisfactory rules 
 of living. This intimate connection between law and 
 life it is which gives vitality to the law — a vitality 
 evidenced not by the multitude of the occasions on 
 which its majestic existence is made manifest by rigorous 
 enforcement, but by the silent unconscious everyday 
 obedience to it. A closer connection between the 
 springs of law and the springs of life it is impossible 
 to find, look we the whole world over, than in the great 
 Common Law of England. 
 
 It is on the silent obedience to the spirit of the 
 law that I dwell to-day, on its necessity in all the 
 unobserved, the unseen actions of the work-a-day world, 
 and on the complete dependence of the well-being of 
 the community upon it. The consideration of this 
 question brings into very strong relief the weakness 
 of the law : its powerlessness to enforce obedience to 
 its rules on a thousand occasions on which disobedience 
 to them may work incalculable harm, may bring death 
 or disaster to many. In cases innumerable the actual 
 wrong-doer cannot be discovered ; he is one among the 
 hundred who have contributed to the creation of the 
 machine, for example, which has suddenly broken 
 down, but it would pass the wit of man to dis- 
 cover him and bring his negligence home. So the 
 
26 TWO CHAPTERS IN THE LA W OF TORTS. 
 
 wrong-doer goes unpunished, and if there is no vicarious 
 liability in another person, or if some other negligent 
 person has not intervened to change the natural or 
 probable current of events, the person injured has no 
 redress. 
 
 This weakness is common both to codified and 
 uncodified bodies of law, and the one is not more elastic 
 than the other. 
 
 I pause for a moment to correct in anticipation an 
 erroneous conclusion which I know that some of you 
 will draw from some of my remarks, and to refute a 
 statement which has recently appeared in print. You 
 know at once to what I allude : it is inevitable that I 
 should touch incidentally upon it ; it is the attitude of 
 English lawyers towards codification. 
 
 A learned author has said by implication — somewhat 
 irrelevantly, it must be confessed, to the question then 
 in hand — that English lawyers oppose codification 
 because it would touch their pockets. From so wise 
 a mouth never yet came so unwise an utterance. It 
 will not be out of place, however, that you, students 
 of English law, should fully understand the opinions of 
 English lawyers on a subject which is of such importance 
 to your own country. 
 
 A lawyer would forfeit his claim to sanity if he 
 opposed codification simply. The merits of codification 
 are not to be discussed generally, but specially with a 
 view to the necessities of any given country. Now, with 
 regard to codification for England, there are some who 
 doubt whether it is practical, and there are others who 
 
THE UNKNOWN WORKMAN. 27 
 
 doubt whether any specific good would come of it in the 
 way of making the law clearer or reducing the amount 
 of litigation ; for a Code, after all, is not a royal road for 
 making people behave themselves and preventing them 
 quarrelling. Well, as I say, some English lawyers may 
 hold strong views on the subject of codification for 
 England ; but that subject has no interest at all for you : 
 it has nothing whatever to do with the question of codi- 
 fication for Japan. And if your admiration for English 
 law is so great as to lead you to think that at this 
 momentous time of your national history it would have 
 been better to do without Codes, that you might now 
 safely wait till a fabric of law like our Common Law has 
 been built by your diligence and erudition, believe me 
 you are profoundly in error. Codes in Japan were 
 inevitable, and not regrettable. But what I said to you 
 before, I say to you again : the virtue of what you 
 are so intelligently learning, the efficacy of the skilful 
 training you are receiving in English law, will reveal 
 themselves when the good time comes, and the joy 
 of argumentative strife waxes fast and furious round 
 the articles of your Codes, and the big briefs roll in 
 upon you. 
 
 Let us now go back to our subject — the unknown 
 workman — and study some familiar illustrations of the 
 consequences of his carelessness, and the way in which 
 the law deals with them. You are walking in the street ; 
 a cask rolls out upon your head from the upper window 
 of a godown. As you are going into a shop a pile of 
 packages set up in the doorway tumbles down upon 
 
28 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 you, or a piece of glass falls from the window of a 
 neighbouring shop which has been broken by a ladder 
 falling against it. Some one evidently must have set the 
 cask down, or piled up the packages, or left the ladder 
 standing carelessly ; or some one must deliberately or 
 negligently have knocked them down. The chances are 
 that in such case it was some careless workman who has 
 gone home to his dinner, and it is beyond your power to 
 find him. Well, the law helps you to redress by making 
 an assumption. Neither barrels, nor cases, nor ladders 
 fall of their own accord : there must have been negligence 
 somewhere. Therefore, where it is reasonable to assume 
 that this negligence was that of the servants of the owner 
 of the premises, the law says " the thing speaks for 
 itself; " it holds the master liable unless he can rebut the 
 presumption, as by showing that an earthquake had 
 tumbled them over. This is the principle res ipsa 
 loquitur ; and its application to the three cases just 
 mentioned is as follows. The owner of the godown will 
 be liable because they are his servants only who touch the 
 barrels stored there. For the same reason the shopman 
 will be liable, because none but his servants can have 
 stacked the cases at his door. But the owner of the 
 adjoining premises whose windows were broken by the 
 falling ladder will not be liable, for some one else over 
 whom he had no control, for whose acts he is not 
 vicariously liable, may have left it in an insecure position 
 or kicked it over : the ladder was not necessarily used in 
 his own business, and therefore the assumption of law 
 cannot be applied, the facts of themselves do not warrant 
 
THE UNKNOWN WORKMAN. 29 
 
 any definite conclusion. You have no redress unless you 
 can find the wrong-doer. Here, then, is an instance of 
 the unknown workman going scot-free, and no one being 
 liable on his behalf. 
 
 Let us take another case which is dealt with on 
 another principle. A man is walking along the highway 
 and passes under a railway bridge. A brick falls out 
 of the bridge and injures him. It may have been 
 loosened by frost, but it must have been the frost of 
 many nights, not of one, and therefore only one con- 
 clusion is possible : the railway company were bound 
 to keep their bridges in repair ; the bridge was out of 
 repair and caused damage ; therefore they must take the 
 consequences. This is another example of res ipsa loquitur. 
 But the company works through inspectors, foremen, 
 common workmen, often by contractors, and they in 
 their turn by foremen and workmen. The brick is 
 loose owing to the negligence of one or more of these 
 many subordinates, but which will remain unknown. 
 The negligence of the unknown workman is covered 
 by the breach of the initial duty laid on the company. 
 Thus in this case redress to the injured party is granted, 
 not by reason of any assumption of vicarious liability, 
 but by an appeal to the broad duty laid on the company 
 which excludes any consideration of the actual wrong- 
 doer, whether he be a servant, an independent contractor, 
 or a contractor's servant. The books are full of such 
 cases ; the chapters on the laws of Negligence and of 
 Master and Servant teem with them ; it is unnecessary 
 for me to elaborate them for you. I have given you 
 
30 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 sufficient examples of the first principle which deals 
 with the unknown workman. If it can be assumed 
 that he was the servant of another, and was engaged 
 in his master's business when he acted negligently, his 
 master is liable. And again, if it can be shown that 
 there was a duty to do without negligence what the 
 unknown workman has done negligently, or to do what 
 he has failed to do, then he will be liable on whom the 
 duty falls. The unknown workman is ignored. But 
 because he is ignored he is none the less liable for his 
 own misdeed, only he cannot be traced. We know 
 that some one has blundered, but we cannot find the 
 blunderer. 
 
 The second principle which affects him tells in his 
 favour, and would protect him even if he were not 
 unknown. It springs from the operation of the law of 
 Remoteness of Damage. Known or unknown, a man's 
 liability for the consequences of a negligent or any 
 other wrongful act ceases at a certain point. When 
 these consequences, causes and consequences, have 
 ceased to follow one another in a natural, probable, or 
 reasonably-to-be-expected manner, the act which set 
 them in motion ceases to be considered in the eye of 
 the law as the cause. That which has unexpectedly 
 intervened and directed the sequence of events into a 
 new channel is the cause, and again the unknown work- 
 man drops out of consideration. The intervening cause 
 may be inanimate, and then the unknown workman 
 goes scot-free ; or the intervening cause may be an 
 animate being, whence arises some chance of redress : 
 
THE UNKNOWN WORKMAN. 31 
 
 for the new act may be itself negligent or otherwise 
 wrongful, and then its author is liable. Curiously enough 
 the law does not discriminate between the two wrongful 
 acts, attributing the effects carefully to their two authors, 
 but in many cases makes the later wrong-doer responsible 
 for all. Take this case. The workmen of a carriage- 
 builder fit the parts of a wheel together negligently. 
 A coachman drives negligently and runs over some one, 
 but the injuries are considerably aggravated by the 
 fact that the badly made wheel breaks down at the 
 critical moment. The coachman, or his master, is liable, 
 although the unknown workman has very materially 
 contributed to the disaster. 
 
 It would occupy all the time allotted to me if I were 
 to trace these principles by example through all their 
 ramifications : two more well-known cases will be quite 
 sufficient. There is a portico in front of a railway 
 station ; its roof is being mended ; through a hole in 
 it a plank and a roll of zinc fall on an unsuspecting 
 passenger much to his hurt ; at the moment of the 
 accident he looks up and just catches sight through 
 the aperture of a man's legs. Both parties to the 
 quarrel seem to have taken it for granted that the 
 plank and the zinc fell in consequence of something 
 this man did upon the roof: but the man himself had 
 passed among his fellows and had become the unknown 
 workman, whom neither lawyer nor layman could dis- 
 cover. Once more. A ship is in dry dock having 
 her hull painted ; the dock-owner supplies the staging 
 and all the necessary appliances ; the ropes of the 
 
32 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 staging give way, and one of the painters is thrown 
 to the bottom of the dock and suffers grievous bodily 
 harm. It is not difficult to see the unknown work- 
 man scamping his work, talking politics perhaps to his 
 mates, instead of seeing that the ropes were sound 
 before they were handed over. But who he was, by 
 reason of his being one of the great unknown, has 
 become as unimportant as the matter he was discussing. 
 The question of redressing the wrong has to be fought 
 on other grounds : relief has to be given, if at all, as 
 against somebody who did not do the actual wrong. 
 Now, see how fine a distinction separates the case in 
 which relief is given from that in which it is withheld. 
 Arguments of the subtlest kind evolved out of the facts 
 of a ship cast a duty on the dock-owner which he him- 
 self had broken. A duty on the dock-owner, mind you. 
 Intervening contracts removed the question of vicarious 
 liability as between master and servant. The duty on 
 the person who had supplied the dock-owner with the 
 staging to supply it sound and good according to his 
 contract, and its evident breach, was passed over. 
 The dock-owner had practically invited the person 
 injured to use the dock appliances provided for the 
 work as incident to the use of the dock ; the invita- 
 tion raised the duty of taking reasonable care that the 
 appliances were in a state fit to be used : and the 
 findings of the jury showed that this duty had been 
 violated. 
 
 Arguments no less subtle failed in the railway case 
 either to evolve out of the facts any breach of an 
 
THE UNKNOWN WORKMAN. 33 
 
 analogous duty on the railway company or to attach to 
 it vicarious liability. 
 
 Think, then, with regard to the actual cause of all the 
 mischief, how powerless the law is : technical objections 
 innumerable stand in the way of launching writs pro- 
 miscuously and fishing for causes of action : the barriers 
 between the unknown workman and his unfortunate 
 victim are almost insuperable. The question underlies 
 the whole course of daily existence ; but the law reaches 
 only the fringe of the difficulty, applying to it principles 
 which do not even consider the actual wrong-doer. The 
 unknown workman touches us at every point. How 
 many do you think have assisted in bringing me from 
 my house to this lecture-hall ? How many in making 
 the journey from Tokyo to Yokohama as easy as it is ? 
 How many in constructing the ship that will shortly 
 take me home to England ? Five minutes careless 
 work on the part of any one of them might do incalcul- 
 able harm to those who have to rely upon their work ; 
 perhaps bring swift destruction upon them. And yet, 
 though the remedy is imperfect, we accept the risks 
 every day without thinking, basing our acceptance on 
 nothing but a reliance on the steadiness of a hundred 
 and more workmen of whom we know absolutely 
 nothing. 
 
 There is, however, a compensating element to this 
 incapacity of the law to reach the actual wrong-doer. 
 The British workman, in spite of certain curious crooks 
 in his character, is a most estimable person. Take him 
 all round he is not a careless workman : accidents will 
 
34 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 happen, of course, but he never yet was known delibe- 
 rately to scamp his work. If he were going out on 
 strike at noon, he would be found doing his best work 
 at half-past eleven. And why ? Because he knows, 
 it has been drilled into him from the earliest days of 
 his apprenticeship, that human lives may depend on the 
 excellence of his work: he knows that the public have 
 confidence in him and feel that they travel with security. 
 Not one of the ten thousand artificers who have helped 
 to build a train — the carpenters, the joiners, the iron- 
 smiths — but knows what depends upon him, and works 
 with a direct sense of individual responsibility, in spite 
 of the fact that he knows too that a fault can never 
 be brought home to him. And we, the public, know 
 of this sense of responsibility and acquire corresponding 
 confidence. And thus out of the very powerlessness 
 of the law have sprung, by action and reaction, that 
 sense of responsibility and the feeling of confidence 
 which are absolutely essential to the well-being and 
 security of the community. 
 
 I speak now, through you, to a wider audience. 
 
 Can you not see the connection between this branch of 
 the Law of Negligence and the phrase I originally chose 
 as the text of my lecture, shikata ga nai?* English 
 children are told in their earliest years of a certain man 
 who was called " Don't care," and who ultimately came 
 to a bad end — he was hanged, I think. And " Don't 
 care " had a numerous family about whose fate nursery 
 history is not so precise, though there can be little doubt 
 * " It cannot be helped ; " lit., there is nothing to be done. 
 
THE UNKNOWN WORKMAN. 35 
 
 that they too suffered the extreme penalty of the law, 
 for their deserts were no greater than their father's. 
 They were christened, "Never mind," "What does it 
 matter?" "Can't be helped," and many other similar 
 names. One of them was born in France ; he had a 
 nasty trick of shrugging his shoulders, and was called 
 " Tant pis!' But this expression, shikata get itai, the 
 world has come to take as representative of one queer 
 side of the Japanese character ; and there is not much 
 difference between not caring for consequences after 
 they have happened, and not caring for consequences 
 before they happen. For all observers they stand in the 
 same plane. 
 
 The march of Japan from her own civilization to the 
 civilization of the West is marked by the usual incidents : 
 steamboats, railways, omnibuses, telegraphs, electric 
 lights, have appeared one after the other. But some- 
 thing more is necessary. The repose of Western civili- 
 zation depends on that perfect confidence I have been 
 talking to you about : the perfect confidence of the 
 public in the unknown workmen on whom the safe 
 conduct of these vehicles, the safe transmission of these 
 dangerous elements depend. 
 
 This confidence can only be bred of the experience 
 of many years. Does it exist in Japan ? It is for you 
 to answer, not for me. If I had to answer, I do not 
 think it would be in the negative. Indeed, I am dis- 
 posed to say that the wonder which Japan has forced 
 from the nations of the West arises, not from the mere 
 adoption of their appliances, but from the fact that, 
 
36 TWO CHAPTERS IN THE LAW OF TORTS. 
 
 certainly with regard to all public works, this confidence 
 and this repose have already come into being. Does it 
 extend any deeper ? It would be premature as yet to 
 insist upon an answer. It is for the unknown workmen 
 to determine whether by-and-by it shall be yes or no. 
 
 But just as the Law of Negligence covers more than 
 mere negligence in the ordinary sense, and includes 
 neglect of proper precaution, recklessness, and heedless- 
 ness ; so the feeling which shikata ga nai expresses may 
 engender all the different forms of disregard of conse- 
 quences. And just as the duties which the Law of 
 Negligence deals with are precisely identical in point of 
 principle with the duties which, under more definite 
 names, are scattered through the whole law, dealing 
 with every phase of life, and concerning every incident 
 of it ; so the spirit of shikata ga nai may influence for 
 evil any and every action wherein care is necessary, 
 forethought, right dealing, scrupulous behaviour, honesty 
 of purpose, and consideration for others. And this 
 whether in the narrow spheres of individual life or in 
 the wider scope of public duty. 
 
 Young men of Japan, I have something to say to 
 you before I leave your shores. In your hands lies all 
 the future destiny of your country. The generation 
 that is passing away has begun the work : it is but 
 begun, and it is for you to carry it forward to its legiti- 
 mate end. Are you fit, are you fitting yourselves, for 
 the task that the old men have laid upon your shoulders ? 
 Or is your work cramped by that influence for evil of 
 which I have just been talking? Again it is not for 
 
THE UNKNOWN WORKMAN. 37 
 
 me to find the answer ; it is for you to be prepared to 
 give it when the nation asks it of you. 
 
 There is a cry current among you, Japan for the 
 Japanese : it is for you to show that it is not a mere 
 empty babbling to the air. It springs from the best 
 spirit in the world ; it is one with which an Englishman 
 must always be in sympathy, for in many a page of his 
 own history the cry of England for the English is 
 written larger than life itself. But perverted, it will 
 hurl the shouters into a sea of troubles. It is well for 
 you that you should know that even in the minds 
 of those foreigners who have your country's best 
 interests at heart — believe me they are many — those 
 who see the springs at work beneath the surface, there 
 is a doubt whether the young men of Japan are equal 
 to the stress and strain of the days that lie ahead. 
 They see young men full of high purpose sacrificing 
 themselves and their careers to the cause they have 
 at heart ; they see others sacrificing the public good 
 to serve their own ambition ! Among your younger 
 officials are many who have realized that a career of 
 usefulness cannot even be begun until they have been 
 as little children in teachableness. But there are others, 
 full of the pride of a newly acquired but somewhat 
 slender stock of learning, who rebel at the presence 
 of foreign advisers in their midst, whose years of study 
 number more than the months of those they have come 
 to guide. There is a magnificent conceit about the 
 possessors of a little knowledge : above all they court 
 public recognition of it ; they would be amusing fellows, 
 
3S TWO CHAPTERS TN THE LAW OF TORTS. 
 
 and an interesting study were they not so dangerous. 
 They at least will never consent to be among the 
 unknown workmen. 
 
 But in the work which any State demands, many 
 must be content to remain unknown : and in this State, 
 more than in any, it is necessary that what the unknown 
 workmen do should be done thoroughly, with earnestness 
 of purpose, with a view to the public good, and with a 
 complete effacement of the private aim. 
 
 Remember that here, of necessity, young men under- 
 take offices which, in the countries lying to the far 
 east of Japan, are filled by men only after they have 
 reached their riper years of learning and experience. 
 There is no one but wishes success to attend their 
 labours. 
 
 As I come to this sheet of my notes I find them 
 much scored and corrected. I had in my mind many 
 harsh and critical things to say : but they are better 
 hinted at than said ; for it is ill to leave a country 
 wherein one has been at least half guest with 
 an ungracious word upon the lips. But the other, 
 the adviser half of me, would leave a duty unfulfilled 
 if I did not pray in aid of the good work which 
 so many of your young men are doing a little less 
 self-assertion on the part of some, a little more 
 restraint of that spirit of shikata ga nai which must 
 deflect the good from its ultimate aim, the better. 
 What Japan has done in the past, what she is doing 
 to-day, is enough to make her wonder whether it is 
 
THE UNKNOWN WORKMAN. 39 
 
 really nothing to all those who pass by. The nations 
 of the West are very busy with their own affairs, but 
 they are watching, and are ready to admit that it is 
 indeed something to be proud of. But what Japan will 
 do to-morrow concerns her and them more. The time 
 to serve up butter before you on a lordly dish has 
 passed away ; it is the time for criticism of the hardest, 
 sternest sort — criticism, not of what the old men have 
 done, but of what the young are doing. Men of the 
 greater sort never yet shrunk from criticism, never yet 
 regretted to admit that they were far the better for it. 
 
 Students of the English Law School of Japan, you 
 too will soon have your part to play in public life. 
 When you come, as some of you must come, to 
 administer the laws of your country, I trust you will 
 never shake off the influence of the great Common 
 Law of England whose principles you have been so 
 eager to understand, nor forget to follow in the footsteps 
 of the great Judges who have established them. 
 
LONDON : 
 
 PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, 
 
 STAMFORD STREET AND CHARIKG CROSS. 
 

 
 
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