She moved along to O. W. Holmes Jr.'s survey of the Common Law: "Nowadays a man is bound at his peril to keep his cattle from trespassing, and he is liable for damage if he has notice of a tendency in the brute to do the harm complained of [her emphasis, Dover ed., 20]." Natch, thought Alice, who wanted medically 'certifiable' sorts to have more merely than a diagnosis but also an appraisal of the intrinsic and extrinsic 'at risk' factors constituting 'notice of a tendency'.
Personal liability for failure to maintain fencing is on the books as early as the code of King Ine of Wessex (688-726). Alice saw this as some thirteen hundred years and some odd decades worth of experience, the lesson of which is the need for law to enforce maintenance of that which in disrepair is apt to result in problems (what would happen if suddenly the required elevator inspections were cancelled?). To argue that this jural precept should not apply to the owner of one's mind seems perverted, she thought. Add 'notice of a tendency' and the perversion is upped a few notches to the obscene. If for the same jural principal we turn from omission of propriety to commission of impropriety we encounter the likes of 'subway vigilante' Bernard Goetz waltzing with exposed electronics through drug- and gang-infested territory: "Here, come get me so then I can complain that the authorities don't protect me." More on Mr. Goetz anon.
And if all precautions fail, and a cow ambles on over into a neighboring pasture, the law required the neighbor to practice the stewardship of an ad hoc office: take and care for the cow for a specified time to enable the owner to claim the beast. If the owner was dilatory he could be fined for showing contempt for the law that had preserved his property, and for the rights of the neighbor who was out resources and energy. If for some reason the owner never came, the cow would forfeit to the state, which would with few exceptions give it to the finder for his pains and expense.
Where wrongs are dealt with by fines or forfeiture, the jural ground typically includes 'unjust enrichment' (the charge will undoubtedly be different). If a finder doesn't release the object to the owner according to law, the finder is wrongfully enriched. If the owner finagles release of his property without the finder's expenses accounted for, again there is unjust enrichment. Here is an example from 1871 highlighted by Alice: "Since the owner of a boat has been unjustly enriched by the plaintiff, who found the boat adrift and, at his own expense, took care of it for the owner, the owner must compensate the plaintiff" (Summers & Kelly, Oxford J. Leg. Studies, 1(2) 1981, 214).
For the same case but from the Supreme Judicial Court of Massachusetts: "And the single question is, whether a promise is to be implied by law, from the owner of a boat, upon taking it from a person who has found it adrift on tide water and brought it to shore, to pay him for the necessary expenses of preserving the boat while in his possession. We are of the opinion that such a promise is to be implied" (from the decision, in Lawson, Cases on Quasi-Contracts, 1904, 351). When the law implies a promise it's often called a quasi-contract, she read. What percentage of that category also implied the ad hoc office remained unknown to her, but no matter, the implications were huge regardless.
Because every office implies adverse reliance -- lawfully undertaken risk of harm in reliance of promised (lawful) objectives -- any stewardship violation entails unjust enrichment somewhere. Should the law cease use of such promises/offices, protection from unjust enrichment would cease along with the office. Which Alice inferred to mean that when this happens on a broad scale very many harms ordinarily protected against would leave potential victims exposed and unprotected; as, for example, the public vis-a-vis ticking human time bombs that the law has assured us will be outfitted with powder, flint, and trigger -- oh, and hollow points. "'Nonsense!' said Alice, very loudly and decidedly, and the Queen was silent."
Alice felt that the government's at-the-time rationale was, if innocent, not thought through. The idea seems to have been that the advances making cows and other capricious creatures things of the past would leave us with tamed, domestic material goods under supervision of bright people. Right or not, the vacant logic of this was not lost on her. Man was far more capricious than any beast of burden. Thus the greater the reliance on material objects, the greater, not the lesser, caprice would befall the public from man's irresponsible use or abuse of otherwise innocent toys. With the Industrial Revolution greed was now in the driver's seat; and despite intermittent advances of dignity-based values, it has since continually cycled, ebbing and waning about a high baseline.
More was lost with the blessings of private autonomy than merely the ad hoc office. An invaluable, if inchoate, philosophy of law was at risk. When wayward cows appeared on the law's radar it was to the law of bailments that their fate redounded. Unjust enrichment regarding owners and finders was likewise grist for bailment law -- "[F]inders of lost property on land are entitled to receive full compensation for all reasonable and necessary expenses incurred about the things found and preserved by them." This is from Commentaries on the Law of Bailments by Joseph Story, as in the Justice, published posthumously in 1863 (8th ed, p. 627).
With legally sanction worship of all things private, the bailment survived in piecemeal; its theory -- capable of delivering the jural roots of most of tort, criminal, and public law, and all of contracts -- arrived as detritus in the land of desuetude, prefiguring an apt locution: 'The day the law died'. Bailments were nothing if not the synecdoche for all that the 'Law of the Office' could be. Nothing before or since reflects the concepts of office that made bailments the ideal springboard to modern law.
It was as if the concept and rule book of baseball were marginalized by a wild uptick in tiddlywinks, leaving ball, gloves, uniforms, bases and bats strewn about, whereat the law gathered them up and, as if de novo, created -- a composite of cricket and lacrosse! (modern torts and contracts). "What we possess, if this view is true," opined Alasdaire MacIntyre, "are the fragments of a conceptual scheme, parts which now lack those contexts from which their significance derived" (After Virtue, 1981, 2).
One cannot blithely neglect to protect the public from mental illness (or pollution, or...) without having first dismissed what bailment law tried to bequeath to legal posterity. And because most of these jural concepts were within equity jurisprudence (in fact gave rise to it) and thus not to the advantage of wealthy capitalists -- who prefer to exert influence on the making of positive law and then advocating rigorous adherence to it with all the conviction of a spiritual fundamentalist -- law was left with accepting governmental agency regulations (sort of) and inviolable private cowboy shoot-'em-up prerogatives. The latter not only gave rise to the specter of institutional abuse of the mentally ill, but then underwrote giving these same sick souls all the privileges of the capitalist gods.
Law careened from one extremity to the other, a sure sign that the fundamentals had been lost. They remain lost. And the legal community? They not only haven't been to the clue store, they have yet to realize its existence. Only the psychiatric profession has a worse track record (part of which, to be fair, has in the last decade been patched up -- at the inexcusable tardiness of a mere fifty years).
Alice identifies the two paths to ruin
All of this must inevitably lead, thought Alice, to the first of two dreadful conclusions. First, unjust enrichment would be replaced with 'unjust degradation' (what Alice's Gryphon called Uglification), the inevitable outcome of unabridged, unmitigated, and unregulated adverse reliance in which a largely defenseless public lies prostrate before a small but determined army of self-absorbed corporate gifts of God. Alice took notes: "I don't think they play at all fairly and they quarrel so dreadfully and they don't seem to have any rules in particular."
Such is the atmosphere that encouraged rascals to sideline whomever they cared to define as difficult or troubled; the same that sold us on the idea that zombies were better off just as they were. The second road to ruin could only be the litigiousness expected when private will is licensed to self-police, to define excess and then duck behind hired lawyers once the stench is unbearable. Alice recollected the words of Fury to Mouse: "We must have a trial; for really this morning I've nothing to do." Law had become almost as glib in its prepossession as its corporate clients. Pollution causing cancer? "Well, it's them or us; you choose". Fall-out from financial panic? "You just don't get it, do you?" Mass killings? "Have to have guns, son, just the cost of doing business."
In the event, the public found improvements to their protection slow coming and hard-fought for when arriving. Bye the bye the Chamber Pot (as Alice had taken to calling them) recognized implied warranties, thus briefly resurrecting the ad hoc office; belatedly it recognized the private and public right to sue corporations, whence the fictive 'personhood'; and belatedly it responded -- piecemeal over fifteen years -- to outrage over false imprisonment of incorrigibles and mistreatment of those otherwise justly constrained.
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