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are two kinds of unjust things,' he says, that which one does, and that which one, being able to prevent, suffers to be done. He who does not undertake the defence of the oppressed, and does not oppose injustice when able, is as worthy of blame as if he had deserted his father, his country, his friends. “I could wish,' says the Chancellor de l'Hôpital, that an action was given not only against the perpetrators of, but against all who, being called upon for aid and succor, have used no endeavor to prevent, but have pretended not to see, outrages, excesses, and indignities, and that such dissimulators and deserters of their brother Christians should be punished in gross amends. A text also of the canon law is cited, which might sanction this doctrine, and undoubtedly legislation would take a step in advance in reaching what one author calls ó some grave delicts of inertia.
“ But neither the Roman law, nor the law of modern times, looks upon the simple refraining as constituting a ground of action. By a contrary rule, he who heard one attacked by robbers call for succor and did not render aid, he who passed by without extinguishing a fire which might spread to a neighboring house, would be responsible for the wounds or death even of the person assaulted, or for the fire which communicated to the house. Such a doctrine is too general. Domat says, “He who can hinder a damage, and is obliged by some duty to do so, and does not do it, is liable.'
“It is, then, only when it is one's duty to hinder the harmful act of another,— that is, when a duty is imposed upon him by law or by contract, — that he is guilty of a wrong of omission. If the stranger, instead of extinguishing the fire, keep on his way, undoubtedly he has been wanting in humanity and in Christian charity ; but he has not failed in any legal duty, because he was neither held by an obligation imposed by law or by contract to watch over the safety of the house. In this regard there is no distinction whether his omission was the result of simple negligence, or whether it took place because he foresaw and intended the result. Even in this last case he would have violated no legal duty.
“ There is no contradiction between this and what has been said before. He who, out of many ways of exercising his right, has chosen that which, without utility for himself, has injured another, is liable, because the damage is the immediate and direct result of the fault he has committed. On the contrary, in the present hypothesis the damage does not result primarily from the omission to act. It is the direct result of the act of a third person, — of the assassin, of the robber, of the incendiary. The apathy of him who has not brought aid to the victim, who has not put himself out of his way to extinguish the fire, has had, without doubt, an influence upon' the event, but it is as a cause secondary and uncertain.
“ What is said upon the subject of negligence, as furnishing grounds for an action, may be summed up as follows: An act which is not in itself illicit may cause damage to another, and be actionable, if the harmful con
sequences of such act are due to the imprudence or negligence of the person doing it, and not to something unavoidable. It is to be remarked that the consequences of the choice which one can make among many ways of exercising his right, one of which is harmful and another harmless, are different, according as the choice of the harmful mode is made intentionally or unintentionally. In the first case there is an actionable wrong. But if the act, in itself lawful, from which the damage flows is not doue with an intention to injure; if it is to be imputed only to the author of the act that he chose one manner of exercising his right instead of another less harmful, without any motive for doing so, then the elements of responsibility do not appear to exist. It is rather a case for the rigorous application of the rule of Paul : “ Nemo damnum facit, nisi qui id fecit quod facere jus non habet.'
“ Chance (cas fortuit) and vis major (la force majeure) are in effect equally exclusive of that fault which lays the foundation for responsibility. By chance and vis major is understood every thing which follows from a cause foreign to the defendant, independent of his will, and which he can neither hinder nor avoid. In this category can be placed the accidents of nature and the acts of persons and the results of things for which we are not responsible. The law 23 D. Reg. juris gives the following examples of chance and vis major: 'Animalium verò casus, mortes, quæque sine culpâ accidunt, fuge servorum qui custodiri non solent, rapine, tumultus, incendia, aquarum magnitudines, impetus prædonum, à nullo præstantur.' So when a tile, blown by the wind and detached from the roof, falls and wounds a passer-by, it is a case of chance. In order that chance or vis major shall be exclusive of responsibility, it is necessary that they shall not be preceded by a fault on the part of him who attempts to excuse himself by them, in such manner that he can be said to have exposed himself to them voluntarily. For example, if a carrier attacked and despoiled of his goods by robbers has chosen a roundabout way, known to be subject to night attacks, when he could have taken another, he will be responsible for the loss of the goods. The innkeeper, who is not responsible for the goods of his guests when they have been carried away by armed force, is held to pay the value when the robbery has been committed by his domestics, or by persons going and coming in his inn. He should have exercised a more rigorous surveillance.”
That in the French law which must chiefly strike an American is the ample redress which that law affords the citizen against the government.
The state, by the common law of France, is subject in all respects to the same obligations arising either from contract or tort that a private individual is. Notably the law as to the lia
bility of a master for the torts of his servant is applicable to its full extent when the state is the master.
“ As to the state itself, its immunity extends only to punishment; the purely civil liability exists in respect to it as in respect to every other employer of agents.
“ The tort, the fault imputable to the agent personally, is sometimes the effect of the imprudence and negligence of the superior authority; in all cases the selection of the agent may constitute a fault. It was just that the legal presumption established against employers in general, to force them to employ only agents of whom they are sure, should be extended to the state, represented by the different departments of administration. Public interest demanded this more strongly, inasmuch as the powers with which such agents are clothed, by reason of their peculiar functions, may render their faults more harmful to others than are the faults of private persons.
“ Is it objected that this responsibility may endanger the public resources ? The danger is not real ; but if it were so, if judgments pronounced against the state should become so frequent as to compromise the public patrimony, such a result would indicate disorders in the administrative body, the only effective remedy for which would be exactly this, — to force the state, by a rigid application of the rules of responsibility, to make choice of agents more intelligent and more devoted to the public interest.”
The Court of Cassation has announced by numerous decrees that “the rules laid down by articles 1382, 1383, 1384 of the Code Napoléon are applicable without exception in every case where any act causes, by the fault of its author, damage to another, and that the state, represented by the different branches of public administration, is liable in damages for the acts, the negligence, or the imprudence of its agents.” The Council of State has many times applied the same principle, and all writers on law recognize it.
The state has been held liable in damages for a homicide committed by a custom-house agent, upon the ground that it had intrusted a gun to a man who did not know how to use it, or who could not confine himself in the use of it to proper occasions. So the tax department has been held liable under the same circumstances, by reason of a homicide committed by one of its employés upon a person whom he suspected of perpetrating a fraud.
But particular laws sometimes limit the general common-law liability. When this is the case, such particular laws are construed strictly. For instance, the post-office department is, by common law, responsible for the loss of the private letters with which it is intrusted by the citizen. But an express law limits this responsibility. Unless the letter is registered and double postage paid in advance, the department is not liable for its loss. When the letter is so registered and prepaid, the liability is limited to fifty francs, payable to the person to whom the letter was addressed, if demanded within thirty days, and in default of such demand, payable to the sender.
A letter containing annuity coupons of Naples, payable to bearer, was sent from Genoa by M. Quartara, directed to M. Todros at Paris. It never arrived. M. Vandermarcy, a Paris banker, afterwards received the coupons in a letter sent by a pretended Count Levi, with an order to sell and remit the proceeds to M. Levi at Aix, by letter, to be left till called for. The coupons were sold, and the proceeds sent. M. Todros not having received his letter, an investigation was instituted. It was discovered that the letter had been stolen by a post-office clerk, who was convicted of the fact and sentenced to fifteen years penal servitude. An action was brought against the government for the conversion of the coupons, valued at thirty thousand francs. The “ Cour d'Assises ” “ rejected the demand," upon the ground that the law above referred to — the letter pot having been registered — freed the administration from all liability. The plaintiff appealed, and the Court of Cassation, by the following judgment, reversed the decision :
“Whereas the terms of art. 1384, Code Napoléon, upon the responsibility of masters and employers in regard to damage caused by their employés in the functions in which they are employed, are applicable to the administration of the post-office, except when exceptions have been made by special laws; whereas, if art. 14 of the law 5 Nivose, An. 5, prescribes that there is due from the post-office department but the sum of fifty francs in case of the loss of a registered letter, and that no indemnity is due in case of the loss of an unregistered letter, still the word loss used in that article can be only understood of something involuntary or accidental. It cannot be extended to voluntary acts which are crimes or torts, such as thefts by post-office employés. Such things, not being enumerated in the special law, are remitted to the common law, and leave the department to its liability under the general rules of law.”
The Court of Appeals of Paris adopted the same view:“ Whereas, if it is true that the law of the year 5 protects the department from the results of the errors, negligence, and imprudence even, of its employés in the discharge of their duties, it is not less true that it does not extend the same favor to things designedly done, nor to embezzlement, theft, or crimes committed by employés in the course of their duty, to the prejudice of the public, who, forced to trust to the post-office department for the transmission of their letters, have a right to rely upon it for their faithful and regular transmission.”
The citizen of the United States has less remedy in cases where he is wronged by the government than the citizen of any country of Europe. Would it be unreasonable, if the general government is to undertake the management of telegraph lines, and if state governments are to own and manage railroads, that some provision should be made in this country also, subjecting the government to the legal liabilities of other corporations engaged in the same service?