PUPPYDOGS' TAILS
B DR. C. K. ALLKN, K.C.
ALL children in the eye of the law are problem children. The few who are not actually young _toughs (technically known as juvenile delinquents) are heirs, or wards of court, or " in need of care and protection," or born too soon or too late (the Divorce Courts lately have had a terrible time with their eccen- tricities in this respect), and sometimes, indeed, they are born when they ought not to have been born at all. To Chancery lawyers the very word "children," especially in wills and settlements, has been the subject of endless controversy, though not altogether un- profitable controversy. In certain text-books, under the heading of "Capacity," you will find Infants (and sometimes, I regret to say, Married Women) classified with Lunatics and Drunken Persons. Apart from the fees which they represent, they are thorough
nuisances to the law. )•
But then, notoriously, they are nuisances to many other persons and things besides the law. The cause, according to theologians, is original sin ; and one of the nicest questions of law is the fair ration of original sin which can be allowed to the ordinary adolescent. The law has to work by averages. It bases many of.its conclusions upon a mythical person known as the Average Reasonable Man. (Curiously enough, you will search the books in vain for a picture of the Average Reasonable Woman.) When it has to deal with the young, it leaves reason aside, and concerns itself with the Average Naughty Child. It knows nothing of boys like Charles Augustus Fortescue. It never assumes that any boy at any time can
Show what anybody might Become by simply doing right.
On the contrary, it assumes that Charles is pretty certain to do wrong, and the question is, How much wrong ? Given the circum- stances of this case (it asks), how tiresomely, how mischievously, would you expect the Average Naughty Child to behave ?
To understand the complications of the problem, it is necessary to grasp the principle that in the English law of negligence the entire human species is divided into three genera, which are called invitees, licensees and trespassers. Far be it from me to attempt to explain what the courts have been explaining for the last hundred years or so, with every prospect of continuing to explain it for the next hundred years. Let me only say that if you think that an invitee is merely a person who has an invitation, or a licensee merely a person who has a licence, then you do not understand legal ways of thinking at all. Trespassers are rather easier. A trespasser is not a person who "will be prosecuted "—that, indeed, if I may borrow a forceful phrase from Mr. B. Wooster, is just what he is anything but. Briefly, he is a person who has no right to be where he is or to be doing what he is doing. Now, while it is not true that you can do anything you like to a trespasser, the general attitude of the law is that if he injures himself by meddling with or on your property, he has only himself to thank, and you are not liable to him.
Not so with the Average Naughty Child. While it would not be accurate to say that all his trespasses are forgiven him, he has an irritating habit of becoming an "implied licensee." The trouble began as long ago as 1841, when it was held that an ordinary boy might be expected to climb, to his hurt, on a horse and cart left unattended in the street. The Chief Justice of the day went so far as to say, in effect, that it was naughtier of the driver to expose the boy to temptation than for the boy (aged seven) to yield to it. This decision has always puzzled me. I do not think that at the age of seven I would, naturally and instinctively, have climbed on any unattended horse and cart which I happened to see ; but this merely means, I suppose, not indeed that I was a Fortescue, but that I lacked the proper spirit of a Finn or a Sawyer. The horse and cart of yesterday is the motor-car of today. Am I tempting youth to its ruin, and exposing myself to heavy damages (quite apart from the attentions of the police), if I leave my car unattended and open ? The question has not yet been settled, but I am not hopeful about it.
At all events, that adventurous urchin of 5841 has had numerous descendants. Whether or not they are trespassers, you must be very careful not to offer them "allurements." If you do, and if , they hurt themselves, it is your fault. For example, if (as is im- probable) you have on your land an old, disused railway turn-table, and you leave an inviting gap in your hedge, it is your fault if the youth of the neighbourhood come and mangle themselves on such an irresistible "allurement." Much learning has been expended on deciding what are fair allurements and what are not. Thus a turn- table is, but a heap of stones is not. No less anxious thought has been devoted to the limits of naughtiness—because, fortunately, there are limits. Drawing on their experience as parents, uncles and men of the world, judges do sometimes say (though perhaps in different language), "No, this is a bit too thick even for the Average Naughty Child." Thus, you cannot be expected to go on for ever warning boys off a moving staircase, or colliery winding-machinery, and if they persist in playing with it when your back is turned, then on their own heads be it—and, unfortunately, on other parts of their fragile frames as well. ./ The latest exploit of the A.N.C. comes to the Privy Council from Canada. It is instructive because it concerns an aspect of"biology which has never before been judicially considered—namely, the well-known fact that every A.N.C. is born and bred a Red Indian. This case has, first and last, exercised the minds of thirteen judges and has caused acute differences of opinion among them. Ah, what a tangled web these A.N.C.s weave !
Mother was ill in bed and gave Willy and Tony, aged 9 and 7% five cents to buy chocolate milk (which apparently is to be dis- tinguished from milk-chocolate). But Willy and Tony were no milksops ; they had been to the pictures and had seen Red Indians burning down stockades with beautiful, flaming torches, probably in Glorious Technicolor. They took a lard-pail to a garage, which sent them away with fleas in their ears. They went to another and said—and here you may think that we reach the borderline of Average Naughtiness—that mother's car was "stuck down the street"; and they asked for five cents' worth, which appears to be about a pint, of gasoline to set it going. The garage man was suspicious. He asked first whether the gasoline was not really wanted for dry cleaning, a purpose for which he was forbidden to sell it. No, it was wanted only to help mother in distress. The garage man yielded to his better nature and his worst judgement. Big Chief and Little Chief then retired to the stockade, soaked a bulrush in the gasoline and lit it with a match, preparatory to incinerating the Palefaces. Unfortunately, there was an unrehearsed effect. The lard-pail, as well as the bulrush, burst into flame, with regrettable consequences: action against the company which employed the too credulous garage attendant, and litigation before a judge, and then the Court of Appeal for Ontario and then the Supreme Court of Canada, and finally the Privy Council. It was a very expensive pint of petrol.
I spare the reader certain technical questions about contributory negligence and a highly complicated thing called a novus actus interveniens. The upshot was that the garage company was held liable for some to,000 dollars damages, and for costs which would need logarithms to calculate. The trial judge had held that Willy, being "mentally alert" and " bright," and having been warned by his father against the dangers of gasoline, had gone beyond the limits of Average Naughtiness, but the higher courts held that he merely had the "mischievous propensities . . . of the normal boy." Hence I fear we must conclude that Average Naughtiness includes not only being a Red Indian of incendiary tendencies, but also telling big, black fibs.
It will be noticed that these legal and moral reflections have been concerned only with boys. I do not remember any case in this branch of the law which has arisen out of the propensities, un- justly described as deadly, of the female of the species. So far as negligence is concerned, the Average Naughty Child is, for all common purposes, the Average Bad Boy. Which only goes to show that, in the eye of the law at least, little boys really arc made of frogs and snails and puppydogs' tails. And the tail, unfortunately, often wags the puppy.
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