Chapter III: Front Matter (3)

When a statute punishes the "wilfully and maliciously" injuring another's property, it is arguable, if not clear, that something more is meant. The presumption that the second word was not added without some meaning is seconded by the unreasonableness of making every wilful trespass criminal. /1/ If this reasoning prevails, maliciously is here used in its popular sense, and imports that the motive for the defendant's act was a wish to harm the owner of the property, or the thing itself, if living, as an end, and for the sake of the harm. Malice in this sense has nothing in common with the malice of murder.

Statutory law need not profess to be consistent with itself, or with the theory adopted by judicial decisions. Hence there is strictly no need to reconcile such a statute with the principles which have been explained. But there is no inconsistency. Although punishment must be confined to compelling external conformity to a rule of conduct, so far that it can always be avoided by avoiding or doing certain acts as required, with whatever intent or for whatever motive, still the prohibited conduct may not be hurtful unless it is accompanied by a particular state of feeling.

Common disputes about property are satisfactorily settled by compensation. But every one knows that sometimes secret harm is done by neighbor to neighbor out of [64] pure malice and spite. The damage can be paid for, but the malignity calls for revenge, and the difficulty of detecting the authors of such wrongs, which are always done secretly, affords a ground for punishment, even if revenge is thought insufficient.

How far the law will go in this direction it is hard to say. The crime of arson is defined to be the malicious and wilful burning of the house of another man, and is generally discussed in close connection with malicious mischief. It has been thought that the burning was not malicious where a prisoner set fire to his prison, not from a desire to consume the building, but solely to effect his escape. But it seems to be the better opinion that this is arson, /1/ in which case an intentional burning is malicious within the meaning of the rule. When we remember that arson was the subject of one of the old appeals which take us far back into the early law, /2/ we may readily understand that only intentional burnings were redressed in that way. /3/ The appeal of arson was brother to the appeal de pace et plagis. As the latter was founded on a warlike assault, the former supposed a house-firing for robbery or revenge, /4/ such as that by which Njal perished in the Icelandic Saga. But this crime seems to have had the same history as others. As soon as intent is admitted to be sufficient, the law is on the high-road to an external standard. A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses is burned in consequence. /5/ In this case, an act which would not [65] have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not. If that may be the effect of setting fire to things which a man has a right to burn, so far as they alone are concerned, why, on principle, should it not be the effect of any other act which is equally likely under the surrounding circumstances to cause the same harm. /1/ Cases may easily be imagined where firing a gun, or making a chemical mixture, or piling up oiled rags, or twenty other things, might be manifestly dangerous in the highest degree and actually lead to a conflagration. If, in such cases, the crime is held to have been committed, an external standard is reached, and the analysis which has been made of murder applies here.

There is another class of cases in which intent plays an important part, for quite different reasons from those which have been offered to account for the law of malicious mischief. The most obvious examples of this class are criminal attempts. Attempt and intent, of course, are two distinct things. Intent to commit a crime is not itself criminal. There is no law against a man's intending to commit a murder the day after tomorrow. The law only deals with conduct. An attempt is an overt act. It differs from the attempted crime in this, that the act has failed to bring about the result which would have given it the character of the principal crime. If an attempt to murder results in death within a year and a day, it is murder. If an attempt to steal results in carrying off the owner's goods, it is larceny.

If an act is done of which the natural and probable [66] effect under the circumstances is the accomplishment of a substantive crime, the criminal law, while it may properly enough moderate the severity of punishment if the act has not that effect in the particular case, can hardly abstain altogether from punishing it, on any theory. It has been argued that an actual intent is all that can give the act a criminal character in such instances. /1/ But if the views which I have advanced as to murder and manslaughter are sound, the same principles ought logically to determine the criminality of acts in general. Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them.

It may be true that in the region of attempts, as elsewhere, the law began with cases of actual intent, as those cases are the most obvious ones. But it cannot stop with them, unless it attaches more importance to the etymological meaning of the word attempt than to the general principles of punishment. Accordingly there is at least color of authority for the proposition that an act is punishable as an attempt, if, supposing it to have produced its natural and probable effect, it would have amounted to a substantive crime. /2/

But such acts are not the only punishable attempts. There is another class in which actual intent is clearly necessary, and the existence of this class as well as the name (attempt) no doubt tends to affect the whole doctrine. Some acts may be attempts or misdemeanors which [67] could not have effected the crime unless followed by other acts on the part of the wrong-doer. For instance, lighting a match with intent to set fire to a haystack has been held to amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he was watched. /1/ So the purchase of dies for making counterfeit coin is a misdemeanor, although of course the coin would not be counterfeited unless the dies were used. /2/

In such cases the law goes on a new principle, different from that governing most substantive crimes. The reason for punishing any act must generally be to prevent some harm which is foreseen as likely to follow that act under the circumstances in which it is done. In most substantive crimes the ground on which that likelihood stands is the common working of natural causes as shown by experience. But when an act is punished the natural effect of which is not harmful under the circumstances, that ground alone will not suffice. The probability does not exist unless there are grounds for expecting that the act done will be followed by other acts in connection with which its effect will be harmful, although not so otherwise. But as in fact no such acts have followed, it cannot, in general, be assumed, from the mere doing of what has been done, that they would have followed if the actor had not been interrupted. They would not have followed it unless the actor had chosen, and the only way generally available to show that he would have chosen to do them is by showing that he intended to do them when he did what he did. The accompanying intent in that case renders the otherwise [68] innocent act harmful, because it raises a probability that it will be followed by such other acts and events as will all together result in harm. The importance of the intent is not to show that the act was wicked, but to show that it was likely to be followed by hurtful consequences.

It will be readily seen that there are limits to this kind of liability. The law does not punish every act which is done with the intent to bring about a crime. If a man starts from Boston to Cambridge for the purpose of committing a murder when he gets there, but is stopped by the draw and goes home, he is no more punishable than if he had sat in his chair and resolved to shoot somebody, but on second thoughts had given up the notion. On the other hand, a slave who ran after a white woman, but desisted before he caught her, has been convicted of an attempt to commit rape. /1/ We have seen what amounts to an attempt to burn a haystack; but it was said in the same case, that, if the defendant had gone no further than to buy a box of matches for the purpose, he would not have been liable.

Eminent judges have been puzzled where to draw the line, or even to state the principle on which it should be drawn, between the two sets of cases. But the principle is believed to be similar to that on which all other lines are drawn by the law. Public policy, that is to say, legislative considerations, are at the bottom of the matter; the considerations being, in this case, the nearness of the danger, the greatness of the harm, and the degree of apprehension felt. When a man buys matches to fire a haystack, or starts on a journey meaning to murder at the end of it, there is still a considerable chance that he will [69] change his mind before he comes to the point. But when he has struck the match, or cocked and aimed the pistol, there is very little chance that he will not persist to the end, and the danger becomes so great that the law steps in. With an object which could not be used innocently, the point of intervention might be put further back, as in the case of the purchase of a die for coining.

The degree of apprehension may affect the decision, as well as the degree of probability that the crime will be accomplished. No doubt the fears peculiar to a slaveowning community had their share in the conviction which has just been mentioned.

There is one doubtful point which should not be passed over. It has been thought that to shoot at a block of wood thinking it to be a man is not an attempt to murder, /1/ and that to put a hand into an empty pocket, intending to pick it, is not an attempt to commit larceny, although on the latter question there is a difference of opinion. /2/ The reason given is, that an act which could not have effected the crime if the actor had been allowed to follow it up to all results to which in the nature of things it could have led, cannot be an attempt to commit that crime when interrupted. At some point or other, of course, the law must adopt this conclusion, unless it goes on the theory of retribution for guilt, and not of prevention of harm.

But even to prevent harm effectually it will not do to be too exact. I do not suppose that firing a pistol at a man with intent to kill him is any the less an attempt to murder because the bullet misses its aim. Yet there the act has produced the whole effect possible to it in the [70] course of nature. It is just as impossible that that bullet under those circumstances should hit that man, as to pick an empty pocket. But there is no difficulty in saying that such an act under such circumstances is so dangerous, so far as the possibility of human foresight is concerned, that it should be punished. No one can absolutely know, though many would be pretty sure, exactly where the bullet will strike; and if the harm is done, it is a very great harm. If a man fires at a block, no harm can possibly ensue, and no theft can be committed in an empty pocket, besides that the harm of successful theft is less than that of murder. Yet it might be said that even such things as these should be punished, in order to make discouragement broad enough and easy to understand.

There remain to be considered certain substantive crimes, which differ in very important ways from murder and the like, and for the explanation of which the foregoing analysis of intent in criminal attempts and analogous misdemeanors will be found of service.

The type of these is larceny. Under this name acts are punished which of themselves would not be sufficient to accomplish the evil which the law seeks to prevent, and which are treated as equally criminal, whether the evil has been accomplished or not. Murder, manslaughter, and arson, on the other hand, are not committed unless the evil is accomplished, and they all consist of acts the tendency of which under the surrounding circumstances is to hurt or destroy person or property by the mere working of natural laws.

In larceny the consequences immediately flowing from the act are generally exhausted with little or no harm to the owner. Goods are removed from his possession by [71] trespass, and that is all, when the crime is complete. But they must be permanently kept from him before the harm is done which the law seeks to prevent. A momentary loss of possession is not what has been guarded against with such severe penalties. What the law means to prevent is the loss of it wholly and forever, as is shown by the fact that it is not larceny to take for a temporary use without intending to deprive the owner of his property. If then the law punishes the mere act of taking, it punishes an act which will not of itself produce the evil effect sought to be prevented, and punishes it before that effect has in any way come to pass.

The reason is plain enough. The law cannot wait until the property has been used up or destroyed in other hands than the owner's, or until the owner has died, in order to make sure that the harm which it seeks to prevent has been done. And for the same reason it cannot confine itself to acts likely to do that harm. For the harm of permanent loss of property will not follow from the act of taking, but only from the series of acts which constitute removing and keeping the property after it has been taken. After these preliminaries, the bearing of intent upon the crime is easily seen.

According to Mr. Bishop, larceny is "the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the intent to deprive such owner of his ownership therein; and perhaps it should be added, for the sake of some advantage to the trespasser, a proposition on which the decisions are not harmonious." /1/

There must be an intent to deprive such owner of his [72] ownership therein, it is said. But why? Is it because the law is more anxious not to put a man in prison for stealing unless he is actually wicked, than it is not to hang him for killing another? That can hardly be. The true answer is, that the intent is an index to the external event which probably would have happened, and that, if the law is to punish at all, it must, in this case, go on probabilities, not on accomplished facts. The analogy to the manner of dealing with attempts is plain. Theft may be called an attempt to permanently deprive a man of his property, which is punished with the same severity whether successful or not. If theft can rightly be considered in this way, intent must play the same part as in other attempts. An act which does not fully accomplish the prohibited result may be made wrongful by evidence that but for some interference it would have been followed by other acts co-ordinated with it to produce that result. This can only be shown by showing intent. In theft the intent to deprive the owner of his property establishes that the thief would have retained, or would not have taken steps to restore, the stolen goods. Nor would it matter that the thief afterwards changed his mind and returned the goods. From the point of view of attempt, the crime was already complete when the property was carried off.

It may be objected to this view, that, if intent is only a makeshift which from a practical necessity takes the place of actual deprivation, it ought not to be required where the actual deprivation is wholly accomplished, provided the same criminal act produces the whole effect. Suppose, for instance, that by one and the same motion a man seizes and backs another's horse over a precipice. The whole evil which the law seeks to prevent is the natural and manifestly [73] certain consequence of the act under the known circumstances. In such a case, if the law of larceny is consistent with the theories here maintained, the act should be passed upon according to its tendency, and the actual intent of the wrong-doer not in any way considered. Yet it is possible, to say the least, that even in such a case the intent would make all the difference. I assume that the act was without excuse and wrongful, and that it would have amounted to larceny, if done for the purpose of depriving the owner of his horse. Nevertheless, if it was done for the sake of an experiment, and without actual foresight of the destruction, or evil design against the owner, the trespasser might not be held a thief.

The inconsistency, if there is one, seems to be explained by the way in which the law has grown. The distinctions of the common law as to theft are not those of a broad theory of legislation; they are highly technical, and very largely dependent upon history for explanation. /1/

The type of theft is taking to one's own user It used to be, and sometimes still is, thought that the taking must be lucri catesa, for the sake of some advantage to the thief. In such cases the owner is deprived of his property by the thief's keeping it, not by its destruction, and the permanence of his loss can only be judged of beforehand by the intent to keep. The intent is therefore always necessary, and it is naturally stated in the form of a self-regarding intent. It was an advance on the old precedents when it was decided that the intent to deprive the owner of his property was sufficient. As late as 1815 the English judges stood only six to five in favor of the proposition [74] that it was larceny to take a horse intending to kill it for no other purpose than to destroy evidence against a friend. /1/ Even that case, however, did not do away with the universality of intent as a test, for the destruction followed the taking, and it is an ancient rule that the criminality of the act must be determined by the state of things at the time of the taking, and not afterwards. Whether the law of larceny would follow what seems to be the general principle of criminal law, or would be held back by tradition, could only be decided by a case like that supposed above, where the same act accomplishes both taking and destruction. As has been suggested already, tradition might very possibly prevail.

Another crime in which the peculiarities noticed in larceny are still more clearly marked, and at the same time more easily explained, is burglary. It is defined as breaking and entering any dwelling-house by night with intent to commit a felony therein. /2/ The object of punishing such a breaking and entering is not to prevent trespasses, even when committed by night, but only such trespasses as are the first step to wrongs of a greater magnitude, like robbery or murder. /3/ In this case the function of intent when proved appears more clearly than in theft, but it is precisely similar. It is an index to the probability of certain future acts which the law seeks to prevent. And here the law gives evidence that this is the true explanation. For if the apprehended act did follow, then it is no longer necessary to allege that the breaking and entering was with that intent. An indictment for burglary which charges that [75] the defendant broke into a dwelling-house and stole certain property, is just as good as one which alleges that he broke in with intent to steal. /1/

It is believed that enough has now been said to explain the general theory of criminal liability, as it stands at common law. The result may be summed up as follows. All acts are indifferent per se.

In the characteristic type of substantive crime acts are rendered criminal because they are done finder circumstances in which they will probably cause some harm which the law seeks to prevent.

The test of criminality in such cases is the degree of danger shown by experience to attend that act under those circumstances.

In such cases the mens rea, or actual wickedness of the party, is wholly unnecessary, and all reference to the state of his consciousness is misleading if it means anything more than that the circumstances in connection with which the tendency of his act is judged are the circumstances known to him. Even the requirement of knowledge is subject to certain limitations. A man must find out at his peril things which a reasonable and prudent man would have inferred from the things actually known. In some cases, especially of statutory crimes, he must go even further, and, when he knows certain facts, must find out at his peril whether the other facts are present which would make the act criminal. A man who abducts a girl from her parents in England must find out at his peril whether she is under sixteen.

[76] In some cases it may be that the consequence of the act, under the circumstances, must be actually foreseen, if it is a consequence which a prudent man would not have foreseen. The reference to the prudent man, as a standard, is the only form in which blameworthiness as such is an element of crime, and what would be blameworthy in such a man is an element;--first, as a survival of true moral standards; second, because to punish what would not be blameworthy in an average member of the community would be to enforce a standard which was indefensible theoretically, and which practically was too high for that community.

In some cases, actual malice or intent, in the common meaning of those words, is an element in crime. But it will be found that, when it is so, it is because the act when done maliciously is followed by harm which would not have followed the act alone, or because the intent raises a strong probability that an act, innocent in itself, will be followed by other acts or events in connection with which it will accomplish the result sought to be prevented by the law.

[77]

LECTURE III. -- TORTS.--TRESPASS AND NEGLIGENCE.

The object of the next two Lectures is to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is. Supposing the attempt to succeed, it will reveal the general principle of civil liability at common law. The liabilities incurred by way of contract are more or less expressly fixed by the agreement of the parties concerned, but those arising from a tort are independent of any previous consent of the wrong-doer to bear the loss occasioned by his act. If A fails to pay a certain sum on a certain day, or to deliver a lecture on a certain night, after having made a binding promise to do so, the damages which he has to pay are recovered in accordance with his consent that some or all of the harms which may be caused by his failure shall fall upon him. But when A assaults or slanders his neighbor, or converts his neighbor's property, he does a harm which he has never consented to bear, and if the law makes him pay for it, the reason for doing so must be found in some general view of the conduct which every one may fairly expect and demand from every other, whether that other has agreed to it or not.

Such a general view is very hard to find. The law did not begin with a theory. It has never worked one out. The point from which it started and that at which I shall [78] try to show that it has arrived, are on different planes. In the progress from one to the other, it is to be expected that its course should not be straight and its direction not always visible. All that can be done is to point out a tendency, and to justify it. The tendency, which is our main concern, is a matter of fact to be gathered from the cases. But the difficulty of showing it is much enhanced by the circumstance that, until lately, the substantive law has been approached only through the categories of the forms of action. Discussions of legislative principle have been darkened by arguments on the limits between trespass and case, or on the scope of a general issue. In place of a theory of tort, we have a theory of trespass. And even within that narrower limit, precedents of the time of the assize and jurata have been applied without a thought of their connection with a long forgotten procedure.

Since the ancient forms of action have disappeared, a broader treatment of the subject ought to be possible. Ignorance is the best of law reformers. People are glad to discuss a question on general principles, when they have forgotten the special knowledge necessary for technical reasoning. But the present willingness to generalize is founded on more than merely negative grounds. The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago.

[79] The business of the law of torts is to fix the dividing lines between those cases in which a man is liable for harm which he has done, and those in which he is not. But it cannot enable him to predict with certainty whether a given act under given circumstances will make him liable, because an act will rarely have that effect unless followed by damage, and for the most part, if not always, the consequences of an act are not known, but only guessed at as more or less probable. All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm--that is, the conduct which a man pursues at his peril. The only guide for the future to be drawn from a decision against a defendant in an action of tort is that similar acts, under circumstances which cannot be distinguished except by the result from those of the defendant, are done at the peril of the actor; that if he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event.

If, therefore, there is any common ground for all liability in tort, we shall best find it by eliminating the event as it actually turns out, and by considering only the principles on which the peril of his conduct is thrown upon the actor. We are to ask what are the elements, on the defendant's side, which must all be present before liability is possible, and the presence of which will commonly make him liable if damage follows.

The law of torts abounds in moral phraseology. It has much to say of wrongs, of malice, fraud, intent, and negligence. Hence it may naturally be supposed that the risk of a man's conduct is thrown upon him as the result of some moral short-coming. But while this notion has been [80] entertained, the extreme opposite will be found to have been a far more popular opinion;--I mean the notion that a man is answerable for all the consequences of his acts, or, in other words, that he acts at his peril always, and wholly irrespective of the state of his consciousness upon the matter.

To test the former opinion it would be natural to take up successively the several words, such as negligence and intent, which in the language of morals designate various well-understood states of mind, and to show their significance in the law. To test the latter, it would perhaps be more convenient to consider it under the head of the several forms of action. So many of our authorities are decisions under one or another of these forms, that it will not be safe to neglect them, at least in the first instance; and a compromise between the two modes of approaching the subject may be reached by beginning with the action of trespass and the notion of negligence together, leaving wrongs which are defined as intentional for the next Lecture.

Trespass lies for unintentional, as well as for intended wrongs. Any wrongful and direct application of force is redressed by that action. It therefore affords a fair field for a discussion of the general principles of liability for unintentional wrongs at common law. For it can hardly be supposed that a man's responsibility for the consequences of his acts varies as the remedy happens to fall on one side or the other of the penumbra which separates trespass from the action on the case. And the greater part of the law of torts will be found under one or the other of those two heads.

It might be hastily assumed that the action on the case [81] is founded on the defendant's negligence. But if that be so, the same doctrine must prevail in trespass. It might be assumed that trespass is founded on the defendant's having caused damage by his act, without regard to negligence. But if that be true, the law must apply the same criterion to other wrongs differing from trespass only in some technical point; as, for instance, that the property damaged was in the defendant's possession. Neither of the above assumptions, however, can be hastily permitted. It might very well be argued that the action on the case adopts the severe rule just suggested for trespass, except when the action is founded on a contract. Negligence, it might be said, had nothing to do with the common-law liability for a nuisance, and it might be added that, where negligence was a ground of liability, a special duty had to be founded in the defendant's super se assumpsit, or public calling. /1/ On the other hand, we shall see what can be said for the proposition, that even in trespass there must at least be negligence. But whichever argument prevails for the one form of action must prevail for the other. The discussion may therefore be shortened on its technical side, by confining it to trespass so far as may be practicable without excluding light to be got from other parts of the law.

As has just been hinted, there are two theories of the common-law liability for unintentional harm. Both of them seem to receive the implied assent of popular textbooks, and neither of them is wanting in plausibility and the semblance of authority.

The first is that of Austin, which is essentially the theory of a criminalist. According to him, the characteristic [82] feature of law, properly so called, is a sanction or detriment threatened and imposed by the sovereign for disobedience to the sovereign's commands. As the greater part of the law only makes a man civilly answerable for breaking it, Austin is compelled to regard the liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows from this, according to the prevailing views of penal law, that such liability ought only to be based upon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that negligence means a state of the party's mind. /1/ These doctrines will be referred to later, so far as necessary.

The other theory is directly opposed to the foregoing. It seems to be adopted by some of the greatest common law authorities, and requires serious discussion before it can be set aside in favor of any third opinion which may be maintained. According to this view, broadly stated, under the common law a man acts at his peril. It may be held as a sort of set-off, that he is never liable for omissions except in consequence of some duty voluntarily undertaken. But the whole and sufficient ground for such liabilities as he does incur outside the last class is supposed to be that he has voluntarily acted, and that damage has ensued. If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor.

In order to do justice to this way of looking at the subject, we must remember that the abolition of the common-law forms of pleading has not changed the rules of substantive law. Hence, although pleaders now generally [83] allege intent or negligence, anything which would formerly have been sufficient to charge a defendant in trespass is still sufficient, notwithstanding the fact that the ancient form of action and declaration has disappeared.

In the first place, it is said, consider generally the protection given by the law to property, both within and outside the limits of the last-named action. If a man crosses his neighbor's boundary by however innocent a mistake, or if his cattle escape into his neighbor's field, he is said to be liable in trespass quare clausum fregit. If an auctioneer in the most perfect good faith, and in the regular course of his business, sells goods sent to his rooms for the purpose of being sold, he may be compelled to pay their full value if a third person turns out to be the owner, although he has paid over the proceeds, and has no means of obtaining indemnity.

Now suppose that, instead of a dealing with the plaintiff's property, the case is that force has proceeded directly from the defendant's body to the plaintiff's body, it is urged that, as the law cannot be less careful of the persons than of the property of its subjects, the only defences possible are similar to those which would have been open to an alleged trespass on land. You may show that there was no trespass by showing that the defendant did no act; as where he was thrown from his horse upon the plaintiff, or where a third person took his hand and struck the plaintiff with it. In such cases the defendant's body is file passive instrument of an external force, and the bodily motion relied on by the plaintiff is not his act at all. So you may show a justification or excuse in the conduct of the plaintiff himself. But if no such excuse is shown, and the defendant has voluntarily acted, he must answer [84] for the consequences, however little intended and however unforeseen. If, for instance, being assaulted by a third person, the defendant lifted his stick and accidentally hit the plaintiff, who was standing behind him, according to this view he is liable, irrespective of any negligence toward the party injured.

The arguments for the doctrine under consideration are, for the most part, drawn from precedent, but it is sometimes supposed to be defensible as theoretically sound. Every man, it is said, has an absolute right to his person, and so forth, free from detriment at the hands of his neighbors. In the cases put, the plaintiff has done nothing; the defendant, on the other hand, has chosen to act. As between the two, the party whose voluntary conduct has caused the damage should suffer, rather than one who has had no share in producing it.

We have more difficult matter to deal with when we turn to the pleadings and precedents in trespass. The declaration says nothing of negligence, and it is clear that the damage need not have been intended. The words vi et armis and contra pacere, which might seem to imply intent, are supposed to have been inserted merely to give jurisdiction to the king's court. Glanvill says it belongs to the sheriff, in case of neglect on the part of lords of franchise, to take cognizance of melees, blows, and even wounds, unless the accuser add a charge of breach of the king's peace (nisi accusator adjiciat de pace Domini Regis infracta). /1/ Reeves observes, "In this distinction between the sheriff's jurisdiction and that of the king, we see the reason of the allegation in modern indictments and writs, vi et amis, of 'the king's crown and dignity,' 'the king's [85] peace,' and 'the peace,'--this last expression being sufficient, after the peace of the sheriff had ceased to be distinguished as a separate jurisdiction." /1/

Again, it might be said that, if the defendant's intent or neglect was essential to his liability, the absence of both would deprive his act of the character of a trespass, and ought therefore to be admissible under the general issue. But it is perfectly well settled at common law that "Not guilty" only denies the act. /2/

Next comes the argument from authority. I will begin with an early and important case. /3/ It was trespass quare clausum. The defendant pleaded that he owned adjoining land, upon which was a thorn hedge; that he cut the thorns, and that they, against his will (ipso invito), fell on the plaintiff's land, and the defendant went quickly upon the same, and took them, which was the trespass complained of. And on demurrer judgment was given for the plaintiff. The plaintiff's counsel put cases which have been often repeated. One of them, Fairfax, said: "There is a diversity between an act resulting in a felony, and one resulting in a trespass.... If one is cutting trees, and the boughs fall on a man and wound him, in this case he shall have an action of trespass, &c., and also, sir, if one is shooting at butts, and his bow shakes in his hands, and kills a man, ipso invito, it is no felony, as has been said, [86] &c.; but if he wounds one by shooting, he shall have a good action of trespass against him, and yet the shooting was lawful, &c., and the wrong which the other receives was against his will, &c.; and so here, &c." Brian, another counsel, states the whole doctrine, and uses equally familiar illustrations. "When one does a thing, he is bound to do it in such a way that by his act no prejudice or damage shall be done to &c. As if I am building a house, and when the timber is being put up a piece of timber falls on my neighbor's house and breaks his house, he shall have a good action, &c.; and yet the raising of the house was lawful, and the timber fell, me invito, &c. And so if one assaults me and I cannot escape, and I in self-defence lift my stick to strike him, and in lifting it hit a man who is behind me, in this case he shall have an action against me, yet my raising my stick was lawful in self-defence, and I hit him, me invito, &c.; and so here, &C."

"Littleton, J. to the same intent, and if a man is damaged he ought to be recompensed.... If your cattle come on my land and eat my grass, notwithstanding you come freshly and drive them out, you ought to make amends for what your cattle have done, be it more or less.... And, sir, if this should be law that he might enter and take the thorns, for the same reason, if he cut a large tree, he might come with his wagons and horses to carry the trees off, which is not reason, for perhaps he has corn or other crops growing, &c., and no more here, for the law is all one in great things and small.... Choke, C. J. to the same intent, for when the principal thing was not lawful, that which depends upon it was not lawful; for when he cut the thorns and they fell on my land, [87] this falling was not lawful, and therefore his coming to take them out was not lawful. As to what was said about their falling in ipso invito, that is no plea, but he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out."

Forty years later, /1/ the Year Books report Rede, J. as adopting the argument of Fairfax in the last case. In trespass, he says, "the intent cannot be construed; but in felony it shall be. As when a man shoots at butts and kills a man, it is not felony et il ser come n'avoit l'entent de luy tuer; and so of a tiler on a house who with a stone kills a man unwittingly, it is not felony. /2/ But when a man shoots at the butts and wounds a man, though it is against his will, he shall be called a trespasser against his intent."

There is a series of later shooting cases, Weaver v. Ward, /3/ Dickenson v. Watson, /4/ and Underwood v. Hewson, /5/ followed by the Court of Appeals of New York in Castle v. Duryee, /6/ in which defences to the effect that the damage was done accidentally and by misfortune, and against the will of the defendant, were held insufficient.

In the reign of Queen Elizabeth it was held that where a man with a gun at the door of his house shot at a fowl, and thereby set fire to his own house and to the house of his neighbor, he was liable in an action on the case generally, the declaration not being on the custom of the realm, [88] "viz. for negligently keeping his fire." "For the injury is the same, although this mischance was not by a common negligence, but by misadventure." /1/

The above-mentioned instances of the stick and shooting at butts became standard illustrations; they are repeated by Sir Thomas Raymond, in Bessey v. Olliot, /2/ by Sir William Blackstone, in the famous squib case, /3/ and by other judges, and have become familiar through the textbooks. Sir T. Raymond, in the above case, also repeats the thought and almost the words of Littleton, J., which have been quoted, and says further: "In all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering." Sir William Blackstone also adopts a phrase from Dickenson v. Watson, just cited: "Nothing but inevitable necessity" is a justification. So Lord Ellenborough, in Leame v. Bray: /4/ "If the injury were received from the personal act of another, it was deemed sufficient to make it trespass"; or, according to the more frequently quoted language of Grose, J., in the same case: "Looking into all the cases from the Year Book in the 21 H. VII. down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass." Further citations are deemed unnecessary.

In spite, however, of all the arguments which may be [89] urged for the rule that a man acts at his peril, it has been rejected by very eminent courts, even under the old forms of action. In view of this fact, and of the further circumstance that, since the old forms have been abolished, the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent, probably many lawyers would be surprised that any one should think it worth while to go into the present discussion. Such is the natural impression to be derived from daily practice. But even if the doctrine under consideration had no longer any followers, which is not the case, it would be well to have something more than daily practice to sustain our views upon so fundamental a question; as it seems to me at least, the true principle is far from being articulately grasped by all who are interested in it, and can only be arrived at after a careful analysis of what has been thought hitherto. It might be thought enough to cite the decisions opposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with admitted doctrines and sound policy. But we may go further with profit, and inquire whether there are not strong grounds for thinking that the common law has never known such a rule, unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction. Conciliating the attention of those who, contrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once more that there are weighty decisions to be cited adverse to it, and that, if they have involved an innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic, I [90] think I may assert that a little reflection will show that it was required not only by policy, but by consistency. I will begin with the latter.

The same reasoning which would make a man answerable in trespass for all damage to another by force directly resulting from his own act, irrespective of negligence or intent, would make him answerable in case for the like damage similarly resulting from the act of his servant, in the course of the latter's employment. The discussions of the company's negligence in many railway cases would therefore be wholly out of place, for although, to be sure, there is a contract which would make the company liable for negligence, that contract cannot be taken to diminish any liability which would otherwise exist for a trespass on the part of its employees.

More than this, the same reasoning would make a defendant responsible for all damage, however remote, of which his act could be called the cause. So long, at least, as only physical or irresponsible agencies, however unforeseen, co-operated with the act complained of to produce the result, the argument which would resolve the case of accidentally striking the plaintiff, when lifting a stick in necessary self-defence, adversely to the defendant, would require a decision against him in every case where his act was a factor in the result complained of. The distinction between a direct application of force, and causing damage indirectly, or as a more remote consequence of one's act, although it may determine whether the form of action should be trespass or case, does not touch the theory of responsibility, if that theory be that a man acts at his peril.

[91] As was said at the outset, if the strict liability is to be maintained at all, it must be maintained throughout. A principle cannot be stated which would retain the strict liability in trespass while abandoning it in case. It cannot be said that trespass is for acts alone, and case for consequences of those acts. All actions of trespass are for consequences of acts, not for the acts themselves. And some actions of trespass are for consequences more remote from the defendant's act than in other instances where the remedy would be case.

An act is always a voluntary muscular contraction, and nothing else. The chain of physical sequences which it sets in motion or directs to the plaintiff's harm is no part of it, and very generally a long train of such sequences intervenes. An example or two will make this extremely clear.

When a man commits an assault and battery with a pistol, his only act is to contract the muscles of his arm and forefinger in a certain way, but it is the delight of elementary writers to point out what a vast series of physical changes must take place before the harm is done. Suppose that, instead of firing a pistol, he takes up a hose which is discharging water on the sidewalk, and directs it at the plaintiff, he does not even set in motion the physical causes which must co-operate with his act to make a battery. Not only natural causes, but a living being, may intervene between the act and its effect. Gibbons v. Pepper, /1/ which decided that there was no battery when a man's horse was frightened by accident or a third person and ran away with him, and ran over the plaintiff, takes the distinction that, if the rider by spurring is the cause of [92] the accident, then he is guilty. In Scott v. Shepherd, /1/ already mentioned, trespass was maintained against one who had thrown a squib into a crowd, where it was tossed from hand to hand in self-defence until it burst and injured the plaintiff. Here even human agencies were a part of the chain between the defendant's act and the result, although they were treated as more or less nearly automatic, in order to arrive at the decision.

Now I repeat, that, if principle requires us to charge a man in trespass when his act has brought force to bear on another through a comparatively short train of intervening causes, in spite of his having used all possible care, it requires the same liability, however numerous and unexpected the events between the act and the result. If running a man down is a trespass when the accident can be referred to the rider's act of spurring, why is it not a tort in every case, as was argued in Vincent v. Stinehour, /2/ seeing that it can always be referred more remotely to his act of mounting and taking the horse out?

Why is a man not responsible for the consequences of an act innocent in its direct and obvious effects, when those consequences would not have followed but for the intervention of a series of extraordinary, although natural, events? The reason is, that, if the intervening events are of such a kind that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so. It seems to be admitted by the English judges that, even on the question whether the acts of leaving dry trimmings in hot weather by the side of a railroad, and then sending an engine over the track, are [93] negligent,--that is, are a ground of liability,--the consequences which might reasonably be anticipated are material. /1/ Yet these are acts which, under the circumstances, can hardly be called innocent in their natural and obvious effects. The same doctrine has been applied to acts in violation of statute which could not reasonably have been expected to lead to the result complained of. /2/