[176] The language and decisions of the courts are perfectly clear; and there we find the German tradition kept alive for several centuries.  I begin with the time of Edward II., about 1315.  In detinue the plea was that the plaintiff delivered the defendant a chest locked with his key, that the chattels were in the chest, and that they were taken from the defendant together with his own goods by robbery.  The replication was that the goods were delivered to the defendant out of enclosure, and Fitzherbert says the party was driven to that issue; 1 which implies that, if not in the chest, but in the defendant’s custody, he was liable.  Lord Holt, in Coggs v.  Bernard, 2 denies that the chest would make any difference; but the old books agree that there is no delivery if the goods are under lock and key; and this is the origin of the distinction as to carriers breaking bulk in modern criminal law. 3 In the reign of Edward III., 4 the case of a pledge came up, which seems always to have been regarded as a special bailment to keep as one’s own goods.  The defence was, that the goods were stolen with the defendant’s own.  The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. 5 Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable.

Next I take a case of the time of Henry VI., A.D. 1455. 6 [177] was an action of debt against the Marshal of the Marshalsea, or jailer of the King’s Bench prison, for an escape of a prisoner.  Jailers in charge of prisoners were governed by the same law as bailees in charge of cattle.  The body of the prisoner was delivered to the jailer to keep under the same liabilities that cows or goods might have been. 1 He set up in defence that enemies of the king broke into the prison and carried off the prisoner, against the will of the defendant.  The question was whether this was a good defence.  The court said that, if alien enemies of the king, for instance the French, released the prisoner, or perhaps if the burning of the prison gave him a chance to escape, the excuse would be good, “because then [the defendant] has remedy against no one.”  But if subjects of the king broke the prison, the defendant would be liable, for they are not enemies, but traitors, and then, it is implied, the defendant would have a right of action against them, and therefore would himself be answerable.  In this case the court got very near to the original ground of liability, and distinguished accordingly.  The person intrusted was liable in those cases where he had a remedy over against the wrong-doer (and in which, originally, he was the only person who had such a remedy); and, on the other hand, his liability, being founded on that circumstance, ceased where the remedy ceased.  The jailer could not sue the soldiers of an invading army of Frenchmen; but in theory he could sue any British subject who carried off the prisoner, however little it was likely that he would get much satisfaction in that way.