§ 149 Vicarious Responsibility
Hitherto we have dealt exclusively with the conditions of liability, and it is needful now to consider its incidence. Normally and naturally the person who is liable for a wrong is he who does it. Yet both ancient and modern law admit instances of vicarious liability in which one man is made answerable for the acts of another. Criminal responsibility, indeed, is never vicarious at the present day, except in very special circumstances and in certain of its less serious forms.397 In more primitive systems, however, the impulse to extend vicariously the incidence of liability receives free scope in a manner altogether alien to modern notions of justice. It is in barbarous times considered a very natural thing to make every man answerable for those who are of kin to him. In the Mosaic legislation it is deemed necessary to lay down the express rule that “The fathers shall not be put to death for the children; neither shall the children be put to death for the fathers; every man shall be put to death for his own sin.”398 Plato in his Laws does not deem it needless to emphasise the same principle.399 Furthermore, so long as punishment is conceived rather as expiative, retributive, and vindictive, than as deterrent and reformative, there seems no reason why the incidence of liability should not be determined by consent, and therefore why a guilty man should not provide a substitute to bear his penalty and to provide the needful satisfaction to the law. Guilt must be wiped out by punishment, but there is no reason why the victim should be one person rather than another. Such modes of thought have long since ceased to pervert the law; but that they were at one time natural is rendered sufficiently evident by their survival in popular theology.
Modern civil law recognises vicarious liability in two chief classes of cases. In the first place, masters are responsible for the acts of their servants done in the course of their employment. In the second place, representatives of dead men are liable for deeds done in the flesh by those whom they represent. We shall briefly consider each of these two forms.
It has been sometimes said that the responsibility of a master for his servant has its historical source in the responsibility of an owner for his slave. This, however, is certainly not the case. The English doctrine of employer’s liability is of comparatively recent growth. It has its origin in the legal presumption, gradually become conclusive, that all acts done by a servant in and about his master’s business are done by his master’s express or implied authority, and are therefore in truth the acts of the master for which he may be justly held responsible.400 No employer will be allowed to say that he did not authorise the act complained of, or even that it was done against his express injunctions, for he is liable none the less. This conclusive presumption of authority has now, after the manner of such presumptions, disappeared from the law, after having permanently modified it by establishing the principle of employer’s liability. Historically, as we have said, this is a fictitious extension of the principle, Qui facit per alium facit per se. Formally, it has been reduced to the laconic maxim, Respondeat superior.
The rational basis of this form of vicarious liability is in the first place evidential. There are such immense difficulties in the way of proving actual authority, that it is necessary to establish a conclusive presumption of it. A word, a gesture, or a tone may be a sufficient indication from a master to his servant that some lapse from the legal standard of care or honesty will be deemed acceptable service. Yet who could prove such a measure of complicity? Who could establish liability in such a case, were evidence of authority required, or evidence of the want of it admitted?
A further reason for the vicarious responsibility of employers is that employers usually are, while their servants usually are not, financially capable of the burden of civil liability. It is felt, probably with justice, that a man who is able to make compensation for the hurtful results of his activities should not be enabled to escape from the duty of doing so by delegating the exercise of these activities to servants or agents from whom no redress can be obtained. Such delegation confers upon impecunious persons means and opportunities of mischief which would otherwise be confined to those who are financially competent. It disturbs the correspondence which would otherwise exist between the capacity of doing harm and the capacity of paying for it. It is requisite for the efficacy of civil justice that this delegation of powers and functions should be permitted only on the condition that he who delegates them shall remain answerable for the acts of his servants, as he would be for his own.
A second form of vicarious responsibility is that of living representatives for the acts of dead men. There is no doubt that criminal responsibility must die with the wrongdoer himself, but with respect to penal redress the question is not free from difficulty. For in this form of liability there is a conflict between the requirements of the two competing principles of punishment and compensation. The former demands the termination of liability with the life of the wrongdoer, while the latter demands its survival. In this dispute the older common law approved the first of those alternatives. The received maxim was: Actio personalis moritur cum persona. A man cannot be punished in his grave; therefore it was held that all actions for penal redress, being in their true nature instruments of punishment, must be brought against the living offender and must die with him. Modern opinion rejects this conclusion, and by various statutory provisions the old rule has been in great part abrogated. It is considered that although liability to afford redress ought to depend in point of origin upon the requirements of punishment, it should depend in point of continuance upon those of compensation. For when this form of liability has once come into existence, it is a valuable right of the person wronged; and it is expedient that such rights should be held upon a secure tenure, and should not be subject to extinction by a mere irrelevant accident such as the death of the offender. There is no sufficient reason for drawing any distinction in point of survival between the right of a creditor to recover his debt and the right of a man who has been injured by assault or defamation to recover compensation for the loss so suffered by him.
As a further argument in the same sense, it is to be observed that it is not strictly true that a man cannot be punished after his death. Punishment is effective not at the time it is inflicted, but at the time it is threatened. A threat of evil to be inflicted upon a man’s descendants at the expense of his estate will undoubtedly exercise a certain deterrent influence upon him; and the apparent injustice of so punishing his descendants for the offences of their predecessor is in most cases no more than apparent. The right of succession is merely the right to acquire the dead man’s estate, subject to all charges which, on any grounds, and apart altogether from the interests of the successors themselves, may justly be imposed upon it.
There is a second application of the maxim, Actio personalis moritur cum persona, which seems equally destitute of justification. According to the common law an action for penal redress died not merely with the wrongdoer but also with the person wronged. This rule has been abrogated by statute in part only. There can, however, be little doubt that in all ordinary cases, if it is right to punish a person at all, his liability should not cease simply by reason of the death of him against whom his offence was committed. The right of the person injured to receive redress should descend to his representatives like any other proprietary interest.