The Common Law
Oliver Wendell Holmes, Jr.

Part 2 out of 8

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

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 ail 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.



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

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

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."

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 [9O] 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, docs 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/

But there is no difference in principle between the case where a
natural cause or physical factor intervenes after the act in some
way not to be foreseen, and turns what seemed innocent to harm,
and the case where such a cause or factor intervenes, unknown, at
the time; as, for the matter of that, it did in the English cases
cited. If a man is excused in the one case because he is not to
blame, he must be in the other. The difference taken in Gibbons
v. Pepper, cited above, is not between results which are and
those which are not the consequences of the defendant's acts: it
is between consequences which he was bound as a reasonable man to
contemplate, and those which he was not. Hard spurring is just so
much more likely to lead to harm than merely riding a horse in
the street, that the court thought that the defendant would be
bound to look out for the consequences of the one, while it would
not hold him liable for those resulting merely from the other;
[94] because the possibility of being run away with when riding
quietly, though familiar, is comparatively slight. If, however,
the horse had been unruly, and had been taken into a frequented
place for the purpose of being broken, the owner might have been
liable, because "it was his fault to bring a wild horse into a
place where mischief might probably be done."

To return to the example of the accidental blow with a stick
lifted in self- defence, there is no difference between hitting a
person standing in one's rear and hitting one who was pushed by a
horse within range of the stick just as it was lifted, provided
that it was not possible, under the circumstances, in the one
case to have known, in the other to have anticipated, the
proximity. In either case there is wanting the only element which
distinguishes voluntary acts from spasmodic muscular contractions
as a ground of liability. In neither of them, that is to say, has
there been an opportunity of choice with reference to the
consequence complained of,--a chance to guard against the result
which has come to pass. A choice which entails a concealed
consequence is as to that consequence no choice.

The general principle of our law is that loss from accident must
lie where it falls, and this principle is not affected by the
fact that a human being is the instrument of misfortune. But
relatively to a given human being anything is accident which he
could not fairly have been expected to contemplate as possible,
and therefore to avoid. In the language of the late Chief Justice
Nelson of New York: "No case or principle can be found, or if
found can be maintained, subjecting an individual to liability
for [95] an act done without fault on his part .... All the cases
concede that an injury arising from inevitable accident, or,
which in law or reason is the same thing, from an act that
ordinary human care and foresight are unable to guard against, is
but the misfortune of the sufferer, and lays no foundation for
legal responsibility." /1/ If this were not so, any act would be
sufficient, however remote, which set in motion or opened the
door for a series of physical sequences ending in damage; such as
riding the horse, in the case of the runaway, or even coming to a
place where one is seized with a fit and strikes the plaintiff in
an unconscious spasm. Nay, why need the defendant have acted at
all, and why is it not enough that his existence has been at the
expense of the plaintiff? The requirement of an act is the
requirement that the defendant should have made a choice. But the
only possible purpose of introducing this moral element is to
make the power of avoiding the evil complained of a condition of
liability. There is no such power where the evil cannot be
foreseen. /2/ Here we reach the argument from policy, and I shall
accordingly postpone for a moment the discussion of trespasses
upon land, and of conversions, and will take up the liability for
cattle separately at a later stage.

A man need not, it is true, do this or that act, the term act
implies a choice,- -but he must act somehow. Furthermore, the
public generally profits by individual activity. As action cannot
be avoided, and tends to the public good, there is obviously no
policy in throwing the hazard of what is at once desirable and
inevitable upon the actor. [96] The state might conceivably make
itself a mutual insurance company against accidents, and
distribute the burden of its citizens' mishaps among all its
members. There might be a pension for paralytics, and state aid
for those who suffered in person or estate from tempest or wild
beasts. As between individuals it might adopt the mutual
insurance principle pro tanto, and divide damages when both were
in fault, as in the rusticum judicium of the admiralty, or it
might throw all loss upon the actor irrespective of fault. The
state does none of these things, however, and the prevailing view
is that its cumbrous and expensive machinery ought not to be set
in motion unless some clear benefit is to be derived from
disturbing the status quo. State interference is an evil, where
it cannot be shown to be a good. Universal insurance, if desired,
can be better and more cheaply accomplished by private
enterprise. The undertaking to redistribute losses simply on the
ground that they resulted from the defendant's act would not only
be open to these objections, but, as it is hoped the preceding
discussion has shown, to the still graver one of offending the
sense of justice. Unless my act is of a nature to threaten
others, unless under the circumstances a prudent man would have
foreseen the possibility of harm, it is no more justifiable to
make me indemnify my neighbor against the consequences, than to
make me do the same thing if I had fallen upon him in a fit, or
to compel me to insure him against lightning.

I must now recur to the conclusions drawn from innocent
trespasses upon land, and conversions, and the supposed analogy
of those cases to trespasses against the person, lest the law
concerning the latter should be supposed to lie between two
antinomies, each necessitating with equal cogency an opposite
conclusion to the other.

[97] Take first the case of trespass upon land attended by actual
damage. When a man goes upon his neighbor's land, thinking it is
his own, he intends the very act or consequence complained of. He
means to intermeddle with a certain thing in a certain way, and
it is just that intended intermeddling for which he is sued. /1/
Whereas, if he accidentally hits a stranger as he lifts his staff
in self defence, the fact, which is the gist of the
action,--namely, the contact between the staff and his neighbor's
head,--was not intended, and could not have been foreseen. It
might be answered, to be sure, that it is not for intermeddling
with property, but for intermeddling with the plaintiff's
property, that a man is sued; and that in the supposed cases,
just as much as in that of the accidental blow, the defendant is
ignorant of one of the facts making up the total environment, and
which must be present to make his action wrong. He is ignorant,
that is to say, that the true owner either has or claims any
interest in the property in question, and therefore he does not
intend a wrongful act, because he does not mean to deal with his
neighbor's property. But the answer to this is, that he does
intend to do the damage complained of. One who diminishes the
value of property by intentional damage knows it belongs to
somebody. If he thinks it belongs to himself, he expects whatever
harm he may do to come out of his own pocket. It would be odd if
he were to get rid of the burden by discovering that it belonged
to his neighbor. It is a very different thing to say that he who
intentionally does harm must bear the loss, from saying that one
from whose acts harm follows accidentally, as [98] a consequence
which could not have been foreseen, must bear it.

Next, suppose the act complained of is an exercise of dominion
over the plaintiff's property, such as a merely technical
trespass or a conversion. If the defendant thought that the
property belonged to himself, there seems to be no abstract
injustice in requiring him to know the limits of his own titles,
or, if he thought that it belonged to another, in holding him
bound to get proof of title before acting. Consider, too, what
the defendant's liability amounts to, if the act, whether an
entry upon land or a conversion of chattels, has been unattended
by damage to the property, and the thing has come back to the
hands of the true owner. The sum recovered is merely nominal, and
the payment is nothing more than a formal acknowledgment of the
owner's title; which, considering the effect of prescription and
statutes of limitation upon repeated acts of dominion, is no more
than right. /1/ All semblance of injustice disappears when the
defendant is allowed to avoid the costs of an action by tender or

But suppose the property has not come back to the hands of the
true owner. If the thing remains in the hands of the defendant,
it is clearly right that he should surrender it. And if instead
of the thing itself he holds the proceeds of a sale, it is as
reasonable to make him pay over its value in trover or assumpsit
as it would have been to compel a surrender of the thing. But the
question whether the defendant has subsequently paid over the
proceeds of the sale of a chattel to a third person, cannot
affect the rights of the true owner of the [99] chattel. In the
supposed case of an auctioneer, for instance, if he had paid the
true owner, it would have been an answer to his bailor's claim.
If he has paid his bailor instead, he has paid one whom he was
not bound to pay, and no general principle requires that this
should be held to divest the plaintiff's right.

Another consideration affecting the argument that the law as to
trespasses upon property establishes a general principle, is that
the defendant's knowledge or ignorance of the plaintiff's title
is likely to lie wholly in his own breast, and therefore hardly
admits of satisfactory proof. Indeed, in many cases it cannot
have been open to evidence at all at the time when the law was
settled, before parties were permitted to testify. Accordingly,
in Basely v. Clarkson, /1/ where the defence set up to an action
of trespass quare clausum was that the defendant in mowing his
own land involuntarily and by mistake mowed down some of the
plaintiff's grass, the plaintiff had judgment on demurrer. "For
it appears the fact was voluntary, and his intention and
knowledge are not traversable; they can't be known."

This language suggests that it would be sufficient to explain the
law of trespass upon property historically, without attempting to
justify it. For it seems to be admitted that if the defendant's
mistake could be proved it might be material. /2/ It will be
noticed, further, that any general argument from the law of
trespass upon laud to that governing trespass against the person
is shown to be misleading by the law as to cattle. The owner is
bound at his peril [100] to keep them off his neighbor's
premises, but he is not bound at his peril in all cases to keep
them from his neighbor's person.

The objections to such a decision as supposed in the case of an
auctioneer do not rest on the general theory of liability, but
spring altogether from the special exigencies of commerce. It
does not become unjust to hold a person liable for unauthorized
intermeddling with another's property, until there arises the
practical necessity for rapid dealing. But where this practical
necessity exists, it is not surprising to find, and we do find, a
different tendency in the law. The absolute protection of
property, however natural to a primitive community more occupied
in production than in exchange, is hardly consistent with the
requirements of modern business. Even when the rules which we
have been considering were established, the traffic of the public
markets was governed by more liberal principles. On the continent
of Europe it was long ago decided that the policy of protecting
titles must yield to the policy of protecting trade. Casaregis
held that the general principle nemo plus juris in alium
transferre potest quam ipse habet must give way in mercantile
transactions to possession vaut titre. /1/ In later times, as
markets overt have lost their importance, the Factors' Acts and
their successive amendments have tended more and more in the
direction of adopting the Continental doctrine.

I must preface the argument from precedent with a reference to
what has been said already in the first Lecture about early forms
of liability, and especially about [101] the appeals. It was
there shown that the appeals de pace et plagis and of mayhem
became the action of trespass, and that those appeals and the
early actions of trespass were always, so far as appears, for
intentional wrongs. /1/

The contra pacem in the writ of trespass was no doubt inserted to
lay a foundation for the king's writ; but there seems to be no
reason to attribute a similar purpose to vi et armis, or cum vi
sua, as it was often put. Glanvill says that wounds are within
the sheriff's jurisdiction, unless the appellor adds a charge of
breach of the king's peace. /2/ Yet the wounds are given vi et
armis as much in the one case as in the other. Bracton says that
the lesser wrongs described by him belong to the king's
jurisdiction, "because they are sometimes against the peace of
our lord the king," /3/ while, as has been observed, they were
supposed to be always committed intentionally. It might even
perhaps be inferred that the allegation contra pacem was
originally material, and it will be remembered that trespasses
formerly involved the liability to pay a fine to the king. /4/

If it be true that trespass was originally confined to
intentional wrongs, it is hardly necessary to consider the
argument drawn from the scope of the general issue. In form it
was a mitigation of the strict denial de verbo in verbum of the
ancient procedure, to which the inquest given by the king's writ
was unknown. /5/ The strict form seems to have lasted in England
some time after the trial of the issue by recognition was
introduced. /6/ When [102] a recognition was granted, the inquest
was, of course, only competent to speak to the facts, as has been
said above. /1/ When the general issue was introduced, trespass
was still confined to intentional wrongs.

We may now take up the authorities. It will be remembered that
the earlier precedents are of a date when the assize and jurata
had not given place to the modern jury. These bodies spoke from
their own knowledge to an issue defined by the writ, or to
certain familiar questions of fact arising in the trial of a
cause, but did not hear the whole case upon evidence adduced.
Their function was more limited than that which has been gained
by the jury, and it naturally happened that, when they had
declared what the defendant had done, the judges laid down the
standard by which those acts were to be measured without their
assistance. Hence the question in the Year Books is not a loose
or general inquiry of the jury whether they think the alleged
trespasser was negligent on such facts as they may find, but a
well-defined issue of law, to be determined by the court, whether
certain acts set forth upon the record are a ground of liability.
It is possible that the judges may have dealt pretty strictly
with defendants, and it is quite easy to pass from the premise
that defendants have been held trespassers for a variety of acts,
without mention of neglect, to the conclusion that any act by
which another was damaged will make the actor chargeable. But a
more exact scrutiny of the early books will show that liability
in general, then as later, was [103] founded on the opinion of
the tribunal that the defendant ought to have acted otherwise,
or, in other words, that he was to blame.

Returning first to the case of the thorns in the Year Book, /1/
it will be seen that the falling of the thorns into the
plaintiff's close, although a result not wished by the defendant,
was in no other sense against his will. When he cut the thorns,
he did an act which obviously and necessarily would have that
consequence, and he must be taken to have foreseen and not to
have prevented it. Choke, C. J. says, "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
in his power to keep them out"; and both the judges put the
unlawfulness of the entry upon the plaintiff's land as a
consequence of the unlawfulness of dropping the thorns there.
Choke admits that, if the thorns or a tree had been blown over
upon the plaintiff's land, the defendant might have entered to
get them. Chief Justice Crew says of this case, in Millen v.
Fawdry, /2/ that the opinion was that "trespass lies, because he
did not plead that he did his best endeavor to hinder their
falling there; yet this was a hard case." The statements of law
by counsel in argument may be left on one side, although Brian is
quoted and mistaken for one of the judges by Sir William
Blackstone, in Scott v. Shepherd.

The principal authorities are the shooting cases, and, as
shooting is an extra- hazardous act, it would not be surprising
if it should be held that men do it at their peril in public
places. The liability has been put on the general ground of
fault, however, wherever the line of necessary [104] precaution
may be drawn. In Weaver v. Ward, /1/ the defendant set up that
the plaintiff and he were skirmishing in a trainband, and that
when discharging his piece he wounded the plaintiff by accident
and misfortune, and against his own will. On demurrer, the court
says that "no man shall be excused of a trespass, ... except it
may be judged utterly without his fault. As if a man by force
take my hand and strike you, or if here the defendant had said,
that the plaintiff ran cross his piece when it was discharging,
or had set forth the case with the circumstances so as it had
appeared to the court that it had been inevitable, and that the
defendant had committed no negligence to give occasion to the
hurt." The later cases simply follow Weaver v. Ward.

The quotations which were made above in favor of the strict
doctrine from Sir T. Raymond, in Bessey v. Olliot, and from Sir
William Blackstone, in Scott v. Shepherd, are both taken from
dissenting opinions. In the latter case it is pretty clear that
the majority of the court considered that to repel personal
danger by instantaneously tossing away a squib thrown by another
upon one's stall was not a trespass, although a new motion was
thereby imparted to the squib, and the plaintiff's eye was put
out in consequence. The last case cited above, in stating the
arguments for absolute responsibility, was Leame v. Bray. /2/ The
question under discussion was whether the action (for running
down the plaintiff) should not have been case rather than
trespass, the defendant founding his objection to trespass on the
ground that the injury happened through his neglect, but was not
done wilfully. There was therefore no question of absolute
responsibility for one's acts [105] before the court, as
negligence was admitted; and the language used is all directed
simply to the proposition that the damage need not have been done

In Wakeman v. Robinson, /1/another runaway case, there was
evidence that the defendant pulled the wrong rein, and that he
ought to have kept a straight course. The jury were instructed
that, if the injury was occasioned by an immediate act of the
defendant, it was immaterial whether the act was wilful or
accidental. On motion for a new trial, Dallas, C. J. said, "If
the accident happened entirely without default on the part of the
defendant, or blame imputable to him, the action does not lie
....The accident was clearly occasioned by the default of the
defendant. The weight of evidence was all that way. I am now
called upon to grant a new trial, contrary to the justice of the
case, upon the ground, that the jury were not called on to
consider whether the accident was unavoidable, or occasioned by
the fault of the defendant. There can be no doubt that the
learned judge who presided would have taken the opinion of the
jury on that ground, if he had been requested so to do." This
language may have been inapposite under the defendant's plea (the
general issue), but the pleadings were not adverted to, and the
doctrine is believed to be sound.

In America there have been several decisions to the point. In
Brown v. Kendall, /2/ Chief Justice Shaw settled the question for
Massachusetts. That was trespass for assault and battery, and it
appeared that the defendant, while trying to separate two
fighting dogs, had raised his stick over his shoulder in the act
of striking, and had accidentally hit the plaintiff in the eye,
inflicting upon him a [106] severe injury. The case was stronger
for the plaintiff than if the defendant had been acting in
self-defence; but the court held that, although the defendant was
bound by no duty to separate the dogs, yet, if he was doing a
lawful act, he was not liable unless he was wanting in the care
which men of ordinary prudence would use under the circumstances,
and that the burden was on the plaintiff to prove the want of
such care.

In such a matter no authority is more deserving of respect than
that of Chief Justice Shaw, for the strength of that great judge
lay in an accurate appreciation of the requirements of the
community whose officer he was. Some, indeed many, English judges
could be named who have surpassed him in accurate technical
knowledge, but few have lived who were his equals in their
understanding of the grounds of public policy to which all laws
must ultimately be referred. It was this which made him, in the
language of the late Judge Curtis, the greatest magistrate which
this country has produced.

Brown v. Kendall has been followed in Connecticut, /1/ in a case
where a man fired a pistol, in lawful self-defence as he alleged,
and hit a bystander. The court was strongly of opinion that the
defendant was not answerable on the general principles of
trespass, unless there was a failure to use such care as was
practicable under the circumstances. The foundation of liability
in trespass as well as case was said to be negligence. The
Supreme Court of the United States has given the sanction of its
approval to the same doctrine. /2/ The language of Harvey v.
Dunlop /3/ has been [107] quoted, and there is a case in Vermont
which tends in the same direction. /1/

Supposing it now to be conceded that the general notion upon
which liability to an action is founded is fault or
blameworthiness in some sense, the question arises, whether it is
so in the sense of personal moral shortcoming, as would
practically result from Austin's teaching. The language of Rede,
J., which has been quoted from the Year Book, gives a sufficient
answer." In trespass the intent" (we may say more broadly, the
defendant's state of mind) "cannot be construed." Suppose that a
defendant were allowed to testify that, before acting, he
considered carefully what would be the conduct of a prudent man
under the circumstances, and, having formed the best judgment he
could, acted accordingly. If the story was believed, it would be
conclusive against the defendant's negligence judged by a moral
standard which would take his personal characteristics into
account. But supposing any such evidence to have got before the
jury, it is very clear that the court would say, Gentlemen, the
question is not whether the defendant thought his conduct was
that of a prudent man, but whether you think it was. /2/

Some middle point must be found between the horns of this

[108 The standards of the law are standards of general
application. The law takes no account of the infinite varieties
of temperament, intellect, and education which make the internal
character of a given act so different in different men. It does
not attempt to see men as God sees them, for more than one
sufficient reason. In the first place, the impossibility of
nicely measuring a man's powers and limitations is far clearer
than that of ascertaining his knowledge of law, which has been
thought to account for what is called the presumption that every
man knows the law. But a more satisfactory explanation is, that,
when men live in society, a certain average of conduct, a
sacrifice of individual peculiarities going beyond a certain
point, is necessary to the general welfare. If, for instance, a
man is born hasty and awkward, is always having accidents and
hurting himself or his neighbors, no doubt his congenital defects
will be allowed for in the courts of Heaven, but his slips are no
less troublesome to his neighbors than if they sprang from guilty
neglect. His neighbors accordingly require him, at his proper
peril, to come up to their standard, and the courts which they
establish decline to take his personal equation into account.

The rule that the law does, in general, determine liability by
blameworthiness, is subject to the limitation that minute
differences of character are not allowed for. The law considers,
in other words, what would be blameworthy in the average man, the
man of ordinary intelligence and prudence, and determines
liability by that. If we fall below the level in those gifts, it
is our misfortune; so much as that we must have at our peril, for
the reasons just given. But he who is intelligent and prudent
does not act at his peril, in theory of law. On the contrary, it
is [109] only when he fails to exercise the foresight of which he
is capable, or exercises it with evil intent, that he is
answerable for the consequences.

There are exceptions to the principle that every man is presumed
to possess ordinary capacity to avoid harm to his neighbors,
which illustrate the rule, and also the moral basis of liability
in general. When a man has a distinct defect of such a nature
that all can recognize it as making certain precautions
impossible, he will not be held answerable for not taking them. A
blind man is not required to see at his peril; and although he
is, no doubt, bound to consider his infirmity in regulating his
actions, yet if he properly finds himself in a certain situation,
the neglect of precautions requiring eyesight would not prevent
his recovering for an injury to himself, and, it may be presumed,
would not make him liable for injuring another. So it is held
that, in cases where he is the plaintiff, an infant of very
tender years is only bound to take the precautions of which an
infant is capable; the same principle may be cautiously applied
where he is defendant. /1/ Insanity is a more difficult matter to
deal with, and no general rule can be laid down about it. There
is no doubt that in many cases a man may be insane, and yet
perfectly capable of taking the precautions, and of being
influenced by the motives, which the circumstances demand. But if
insanity of a pronounced type exists, manifestly incapacitating
the sufferer from complying with the rule which he has broken,
good sense would require it to be admitted as an excuse.

Taking the qualification last established in connection with the
general proposition previously laid down, it will [110] now be
assumed that, on the one hand, the law presumes or requires a man
to possess ordinary capacity to avoid harming his neighbors,
unless a clear and manifest incapacity be shown; but that, on the
other, it does not in general hold him liable for unintentional
injury, unless, possessing such capacity, he might and ought to
have foreseen the danger, or, in other words, unless a man of
ordinary intelligence and forethought would have been to blame
for acting as he did. The next question is, whether this vague
test is all that the law has to say upon the matter, and the same
question in another form, by whom this test is to be applied.

Notwithstanding the fact that the grounds of legal liability are
moral to the extent above explained, it must be borne in mind
that law only works within the sphere of the senses. If the
external phenomena, the manifest acts and omissions, are such as
it requires, it is wholly indifferent to the internal phenomena
of conscience. A man may have as bad a heart as he chooses, if
his conduct is within the rules. In other words, the standards of
the law are external standards, and, however much it may take
moral considerations into account, it does so only for the
purpose of drawing a line between such bodily motions and rests
as it permits, and such as it does not. What the law really
forbids, and the only thing it forbids, is the act on the wrong
side of the line, be that act blameworthy or otherwise.

Again, any legal standard must, in theory, be one which would
apply to all men, not specially excepted, under the same
circumstances. It is not intended that the public force should
fall upon an individual accidentally, or at the whim of any body
of men. The standard, that is, [111] must be fixed. In practice,
no doubt, one man may have to pay and another may escape,
according to the different feelings of different juries. But this
merely shows that the law does not perfectly accomplish its ends.
The theory or intention of the law is not that the feeling of
approbation or blame which a particular twelve may entertain
should be the criterion. They are supposed to leave their
idiosyncrasies on one side, and to represent the feeling of the
community. The ideal average prudent man, whose equivalent the
jury is taken to be in many cases, and whose culpability or
innocence is the supposed test, is a constant, and his conduct
under given circumstances is theoretically always the same.

Finally, any legal standard must, in theory, be capable of being
known. When a man has to pay damages, he is supposed to have
broken the law, and he is further supposed to have known what the
law was.

If, now, the ordinary liabilities in tort arise from failure to
comply with fixed and uniform standards of external conduct,
which every man is presumed and required to know, it is obvious
that it ought to be possible, sooner or later, to formulate these
standards at least to some extent, and that to do so must at last
be the business of the court. It is equally clear that the
featureless generality, that the defendant was bound to use such
care as a prudent man would do under the circumstances, ought to
be continually giving place to the specific one, that he was
bound to use this or that precaution under these or those
circumstances. The standard which the defendant was bound to come
up to was a standard of specific acts or omissions, with
reference to the specific circumstances in which he found
himself. If in the whole department of [112] unintentional wrongs
the courts arrived at no further utterance than the question of
negligence, and left every case, without rudder or compass, to
the jury, they would simply confess their inability to state a
very large part of the law which they required the defendant to
know, and would assert, by implication, that nothing could be
learned by experience. But neither courts nor legislatures have
ever stopped at that point.

>From the time of Alfred to the present day, statutes and
decisions have busied themselves with defining the precautions to
be taken in certain familiar cases; that is, with substituting
for the vague test of the care exercised by a prudent man, a
precise one of specific acts or omissions. The fundamental
thought is still the same, that the way prescribed is that in
which prudent men are in the habit of acting, or else is one laid
down for cases where prudent men might otherwise be in doubt.

It will be observed that the existence of the external tests of
liability which will be mentioned, while it illustrates the
tendency of the law of tort to become more and more concrete by
judicial decision and by statute, does not interfere with the
general doctrine maintained as to the grounds of liability. The
argument of this Lecture, although opposed to the doctrine that a
man acts or exerts force at his peril, is by no means opposed to
the doctrine that he does certain particular acts at his peril.
It is the coarseness, not the nature, of the standard which is
objected to. If, when the question of the defendant's negligence
is left to a jury, negligence does not mean the actual state of
the defendant's mind, but a failure to act as a prudent man of
average intelligence would have done, he is required to conform
to an objective standard at his [113] peril, even in that case.
When a more exact and specific rule has been arrived at, he must
obey that rule at his peril to the same extent. But, further, if
the law is wholly a standard of external conduct, a man must
always comply with that standard at his peril.

Some examples of the process of specification will be useful. In
LL. Alfred, 36, /1/ providing for the case of a man's staking
himself on a spear carried by another, we read, "Let this
(liability) be if the point be three fingers higher than the
hindmost part of the shaft; if they be both on a level, ... be
that without danger."

The rule of the road and the sailing rules adopted by Congress
from England are modern examples of such statutes. By the former
rule, the question has been narrowed from the vague one, Was the
party negligent? to the precise one, Was he on the right or left
of the road? To avoid a possible misconception, it may be
observed that, of course, this question does not necessarily and
under all circumstances decide that of liability; a plaintiff may
have been on the wrong side of the road, as he may have been
negligent, and yet the conduct of the defendant may have been
unjustifiable, and a ground of liability. /2/ So, no doubt, a
defendant could justify or excuse being on the wrong side, under
some circumstances. The difference between alleging that a
defendant was on the wrong side of the road, and that he was
negligent, is the difference between an allegation of facts
requiring to be excused by a counter allegation of further facts
to prevent their being a ground of liability, and an allegation
which involves a conclusion of law, and denies in advance the
existence of an [114] excuse. Whether the former allegation ought
not to be enough, and whether the establishment of the fact ought
not to shift the burden of proof, are questions which belong to
the theory of pleading and evidence, and could be answered either
way consistently with analogy. I should have no difficulty in
saying that the allegation of facts which are ordinarily a ground
of liability, and which would be so unless excused, ought to be
sufficient. But the forms of the law, especially the forms of
pleading, do not change with every change of its substance, and a
prudent lawyer would use the broader and safer phrase.

The same course of specification which has been illustrated from
the statute- book ought also to be taking place in the growth of
judicial decisions. That this should happen is in accordance with
the past history of the law. It has been suggested already that
in the days of the assize and jurata the court decided whether
the facts constituted a ground of liability in all ordinary
cases. A question of negligence might, no doubt, have gone to the
jury. Common sense and common knowledge are as often sufficient
to determine whether proper care has been taken of an animal, as
they are to say whether A or B owns it. The cases which first
arose were not of a kind to suggest analysis, and negligence was
used as a proximately simple element for a long time before the
need or possibility of analysis was felt. Still, when an issue of
this sort is found, the dispute is rather what the acts or
omissions of the defendant were than on the standard of conduct.
/1/ The [115] distinction between the functions of court and jury
does not come in question until the parties differ as to the
standard of conduct. Negligence, like ownership, is a complex
conception. Just as the latter imports the existence of certain
facts, and also the consequence (protection against all the
world) which the law attaches to those facts; the former imports
the existence of certain facts (conduct) and also the consequence
(liability) which the law attaches to those facts. In most cases
the question is upon the facts, and it is only occasionally that
one arises on the consequence.

It will have been noticed how the judges pass on the defendant's
acts (on grounds of fault and public policy) in the case of the
thorns, and that in Weaver v. Ward /1/it is said that the facts
constituting an excuse, and showing that the defendant was free
from negligence, should have been spread upon the record, in
order that the court might judge. A similar requirement was laid
down with regard to the defence of probable cause in an action
for malicious prosecution. /2/ And to this day the question of
probable cause is always passed on by the court. Later evidence
will be found in what follows.

There is, however, an important consideration, which has not yet
been adverted to. It is undoubtedly possible that those who have
the making of the law should deem it "wise to put the mark higher
in some cases than the point established by common practice at
which blameworthiness begins. For instance, in Morris v. Platt,
/2/ the court, while declaring in the strongest terms that, in
general, [116] negligence is the foundation of liability for
accidental trespasses, nevertheless hints that, if a decision of
the point were necessary, it might hold a defendant to a stricter
rule where the damage was caused by a pistol, in view of the
danger to the public of the growing habit of carrying deadly
weapons. Again, it might well seem that to enter a man's house
for the purpose of carrying a present, or inquiring after his
health when he was ill, was a harmless and rather praiseworthy
act, although crossing the owner's boundary was intentional. It
is not supposed that an action would lie at the present day for
such a cause, unless the defendant had been forbidden the house.
Yet in the time of Henry VIII. it was said to be actionable if
without license, "for then under that color my enemy might be in
my house and kill me." /1/ There is a clear case where public
policy establishes a standard of overt acts without regard to
fault in any sense. In like manner, policy established exceptions
to the general prohibition against entering another's premises,
as in the instance put by Chief Justice Choke in the Year Book,
of a tree being blown over upon them, or when the highway became
impassable, or for the purpose of keeping the peace. /2/

Another example may perhaps be found in the shape which has been
given in modern times to the liability for animals, and in the
derivative principle of Rylands v. Fletcher, /3/ that when a
person brings on his lands, and collects and keeps there,
anything likely to do mischief if it escapes, he must keep it in
at his peril; and, if he does not do so, is prima facie
answerable for all the [117] damage which is the natural
consequence of its escape. Cases of this sort do not stand on the
notion that it is wrong to keep cattle, or to have a reservoir of
water, as might have been thought with more plausibility when
fierce and useless animals only were in question. /1/ It may even
be very much for the public good that the dangerous accumulation
should be made (a consideration which might influence the
decision in some instances, and differently in different
jurisdictions); but as there is a limit to the nicety of inquiry
which is possible in a trial, it may be considered that the
safest way to secure care is to throw the risk upon the person
who decides what precautions shall be taken. The liability for
trespasses of cattle seems to lie on the boundary line between
rules based on policy irrespective of fault, and requirements
intended to formulate the conduct of a prudent man.

It has been shown in the first Lecture how this liability for
cattle arose in the early law, and how far the influence of early
notions might be traced in the law of today, Subject to what is
there said, it is evident that the early discussions turn on the
general consideration whether the owner is or is not to blame.
/2/ But they do not stop there: they go on to take practical
distinctions, based on common experience. Thus, when the
defendant chased sheep out of his land with a dog, and as soon as
the sheep were out called in his dog, but the dog pursued them
into adjoining land, the chasing of the sheep beyond the
defendant's line was held no trespass, because "the nature of a
dog is such that he cannot be ruled suddenly." /3/

[118] It was lawful in ploughing to turn the horses on adjoining
land, and if while so turning the beasts took a mouthful of
grass, or subverted the soil with the plough, against the will of
the driver, he had a good justification, because the law will
recognize that a man cannot at every instant govern his cattle as
he will. /1/ So it was said that, if a man be driving cattle
through a town, and one of them goes into another man's house,
and he follows him, trespass does not lie for this. /2/ So it was
said by Doderidge, J., in the same case, that if deer come into
my land out of the forest, and I chase them with dogs, it is
excuse enough for me to wind my horn to recall the dogs, because
by this the warden of the forest has notice that a deer is being
chased. /3/

The very case of Mason v. Keeling, /4/ which is referred to in
the first Lecture for its echo of primitive notions, shows that
the working rules of the law had long been founded on good sense.
With regard to animals not then treated as property, which in the
main were the wilder animals, the law was settled that, "if they
are of a tame nature, there must be notice of the ill quality;
and the law takes notice, that a dog is not of a fierce nature,
but rather the contrary." /5/ If the animals "are such as are
naturally [119] mischievous in their kind, he shall answer for
hurt done by them, without any notice." /1/ The latter principle
has been applied to the case of a bear, /2/ and amply accounts
for the liability of the owner of such animals as horses and oxen
in respect of trespasses upon land, although, as has been seen,
it was at one time thought to stand upon his ownership. It is
said to be the universal nature of cattle to stray, and, when
straying in cultivated land, to do damage by trampling down and
eating the crops, whereas a dog does no harm. It is also said to
be usual and easy to restrain them. /3/ If, as has been
suggested, the historical origin of the rule was different, it
does not matter.

Following the same line of thought, the owner of cattle is not
held absolutely answerable for all damage which they may do the
person. According to Lord Holt in the alcove opinion, these
animals, "which are not so familiar to mankind" as dogs, "the
owner ought to confine, and take all reasonable caution that they
do no mischief.... But ... if the owner puts a horse or an ox to
grass in his field, which is adjoining to the highway, and the
horse or the ox breaks the hedge and runs into the highway, and
kicks or gores some passenger, an action will not lie against the
owner; otherwise, if he had notice that they had done such a
thing before."

[120] Perhaps the most striking authority for the position that
the judge's duties are not at an end when the question of
negligence is reached, is shown by the discussions concerning the
law of bailment. Consider the judgment in Coggs v. Bernard, /1/
the treatises of Sir William Jones and Story, and the chapter of
Kent upon the subject. They are so many attempts to state the
duty of the bailee specifically, according to the nature of the
bailment and of the object bailed. Those attempts, to be sure,
were not successful, partly because they were attempts to engraft
upon the native stock a branch of the Roman law which was too
large to survive the process, but more especially because the
distinctions attempted were purely qualitative, and were
therefore useless when dealing with a jury. /2/ To instruct a
jury that they must find the defendant guilty of gross negligence
before he can be charged, is open to the reproach that for such a
body the word "gross" is only a vituperative epithet. But it
would not be so with a judge sitting in admiralty without a jury.
The Roman law and the Supreme Court of the United States agree
that the word means something. /3/ Successful or not, it is
enough for the present argument that the attempt has been made.

The principles of substantive law which have been established by
the courts are believed to have been somewhat obscured by having
presented themselves oftenest in the form of rulings upon the
sufficiency of evidence. When a judge rules that there is no
evidence of negligence, he does something more than is embraced
in an ordinary ruling that there is no evidence of a fact. He
rules that [121] acts or omissions proved or in question do not
constitute a ground of legal liability, and in this way the law
is gradually enriching itself from daily life, as it should.
Thus, in Crafton v. Metropolitan Railway Co., /1/ the plaintiff
slipped on the defendant's stairs and was severely hurt. The
cause of his slipping was that the brass nosing of the stairs had
been worn smooth by travel over it, and a builder testified that
in his opinion the staircase was unsafe by reason of this
circumstance and the absence of a hand-rail. There was nothing to
contradict this except that great numbers of persons had passed
over the stairs and that no accident had happened there, and the
plaintiff had a verdict. The court set the verdict aside, and
ordered a nonsuit. The ruling was in form that there was no
evidence of negligence to go to the jury; but this was obviously
equivalent to saying, and did in fact mean, that the railroad
company had done all that it was bound to do in maintaining such
a staircase as was proved by the plaintiff. A hundred other
equally concrete instances will be found in the text-books.

On the other hand, if the court should rule that certain acts or
omissions coupled with damage were conclusive evidence of
negligence unless explained, it would, in substance and in truth,
rule that such acts or omissions were a ground of liability, /2/
or prevented a recovery, as the case might be. Thus it is said to
be actionable negligence to let a house for a dwelling knowing it
to be so infected with small-pox as to be dangerous to health,
and concealing the knowledge. /3/ To explain the acts or
omissions in such a [122] case would be to prove different
conduct from that ruled upon, or to show that they were not,
juridically speaking, the cause of the damage complained of. The
ruling assumes, for the purposes of the ruling, that the facts in
evidence are all the facts.

The cases which have raised difficulties needing explanation are
those in which the court has ruled that there was prima facie
evidence of negligence, or some evidence of negligence to go to
the jury.

Many have noticed the confusion of thought implied in speaking of
such cases as presenting mixed questions of law and fact. No
doubt, as has been said above, the averment that the defendant
has been guilty of negligence is a complex one: first, that he
has done or omitted certain things; second, that his alleged
conduct does not come up to the legal standard. And so long as
the controversy is simply on the first half, the whole complex
averment is plain matter for the jury without special
instructions, just as a question of ownership would be where the
only dispute was as to the fact upon which the legal conclusion
was founded. /1/ But when a controversy arises on the second
half, the question whether the court or the jury ought to judge
of the defendant's conduct is wholly unaffected by the accident,
whether there is or is not also a dispute as to what that conduct
was. If there is such a dispute, it is entirely possible to give
a series of hypothetical instructions adapted to every state of
facts which it is open to the jury to find. If there is no such
dispute, the court may still take their opinion as to the
standard. The problem is [123] to explain the relative functions
of court and jury with regard to the latter.

When a case arises in which the standard of conduct, pure and
simple, is submitted to the jury, the explanation is plain. It is
that the court, not entertaining any clear views of public policy
applicable to the matter, derives the rule to be applied from
daily experience, as it has been agreed that the great body of
the law of tort has been derived. But the court further feels
that it is not itself possessed of sufficient practical
experience to lay down the rule intelligently. It conceives that
twelve men taken from the practical part of the community can aid
its judgment. /1/ Therefore it aids its conscience by taking the
opinion of the jury.

But supposing a state of facts often repeated in practice, is it
to be imagined that the court is to go on leaving the standard to
the jury forever? Is it not manifest, on the contrary, that if
the jury is, on the whole, as fair a tribunal as it is
represented to be, the lesson which can be got from that source
will be learned? Either the court will find that the fair
teaching of experience is that the conduct complained of usually
is or is not blameworthy, and therefore, unless explained, is or
is not a ground of liability; or it will find the jury
oscillating to and fro, and will see the necessity of making up
its mind for itself. There is no reason why any other such
question should not be settled, as well as that of liability for
stairs with smooth strips of brass upon their edges. The
exceptions would mainly be found where the standard was rapidly
changing, as, for in. stance, in some questions of medical
treatment. /2/

[124] If this be the proper conclusion in plain cases, further
consequences ensue. Facts do not often exactly repeat themselves
in practice; but cases with comparatively small variations from
each other do. A judge who has long sat at nisi prius ought
gradually to acquire a fund of experience which enables him to
represent the common sense of the community in ordinary instances
far better than an average jury. He should be able to lead and to
instruct them in detail, even where he thinks it desirable, on
the whole, to take their opinion. Furthermore, the sphere in
which he is able to rule without taking their opinion at all
should be continually growing.

It has often been said, that negligence is pure matter of fact,
or that, after the court has declared the evidence to be such
that negligence may be inferred from it, the jury are always to
decide whether the inference shall be drawn. /1/ But it is
believed that the courts, when they lay down this broad
proposition, are thinking of cases where the conduct to be passed
upon is not proved directly, and the main or only question is
what that conduct was, not what standard shall be applied to it
after it is established.

Most cases which go to the jury on a ruling that there is
evidence from which they may find negligence, do not go to them
principally on account of a doubt as to the standard, but of a
doubt as to the conduct. Take the case where the fact in proof is
an event such as the dropping of a brick from a railway bridge
over a highway upon the plaintiff, the fact must be inferred that
the dropping was [125] due, not to a sudden operation of weather,
but to a gradual falling out of repair which it was physically
possible for the defendant to have prevented, before there can be
any question as to the standard of conduct. /1/

So, in the case of a barrel falling from a warehouse window, it
must be found that the defendant or his servants were in charge
of it, before any question of standard can arise. /2/ It will be
seen that in each of these well-known cases the court assumed a
rule which would make the defendant liable if his conduct was
such as the evidence tended to prove. When there is no question
as to the conduct established by the evidence, as in the case of
a collision between two trains belonging to the same company, the
jury have, sometimes at least, been told in effect that, if they
believed the evidence, the defendant was liable. /3/

The principal argument that is urged in favor of the view that a
more extended function belongs to the jury as matter of right, is
the necessity of continually conforming our standards to
experience. No doubt the general foundation of legal liability in
blameworthiness, as determined by the existing average standards
of the community, should always be kept in mind, for the purpose
of keeping such concrete rules as from time to time may be laid
down conformable to daily life. No doubt this conformity is the
practical justification for requiring a man to know the civil
law, as the fact that crimes are also generally sins is one of
the practical justifications for requiring a man to know the
criminal law. But these considerations only lead to [126] the
conclusion that precedents should be overruled when they become
inconsistent with present conditions; and this has generally
happened, except with regard to the construction of deeds and
wills. On the other hand, it is very desirable to know as nearly
as we can the standard by which we shall be judged at a given
moment, and, moreover, the standards for a very large part of
human conduct do not vary from century to century.

The considerations urged in this Lecture are of peculiar
importance in this country, or at least in States where the law
is as it stands in Massachusetts. In England, the judges at nisi
prius express their opinions freely on the value and weight of
the evidence, and the judges in banc, by consent of parties,
constantly draw inferences of fact. Hence nice distinctions as to
the province of court and jury are not of the first necessity.
But when judges are forbidden by statute to charge the jury with
respect to matters of fact, and when the court in banc will never
hear a case calling for inferences of fact, it becomes of vital
importance to understand that, when standards of conduct are left
to the jury, it is a temporary surrender of a judicial function
which may be resumed at any moment in any case when the court
feels competent to do so. Were this not so, the almost universal
acceptance of the first proposition in this Lecture, that the
general foundation of liability for unintentional wrongs is
conduct different from that of a prudent man under the
circumstances, would leave all our rights and duties throughout a
great part of the law to the necessarily more or less accidental
feelings of a jury.

It is perfectly consistent with the views maintained in this
Lecture that the courts have been very slow to withdraw questions
of negligence from the jury, without distinguishing [127] nicely
whether the doubt concerned the facts or the standard to be
applied. Legal, like natural divisions, however clear in their
general outline, will be found on exact scrutiny to end in a
penumbra or debatable land. This is the region of the jury, and
only cases falling on this doubtful border are likely to be
carried far in court. Still, the tendency of the law must always
be to narrow the field of uncertainty. That is what analogy, as
well as the decisions on this very subject, would lead us to

The growth of the law is very apt to take place in this way. Two
widely different cases suggest a general distinction, which is a
clear one when stated broadly. But as new eases cluster around
the opposite poles, and begin to approach each other, the
distinction becomes more difficult to trace; the determinations
are made one way or the other on a very slight preponderance of
feeling, rather than of articulate reason; and at last a
mathematical line is arrived at by the contact of contrary
decisions, which is so far arbitrary that it might equally well
have been drawn a little farther to the one side or to the other,
but which must have been drawn somewhere in the neighborhood of
,where it falls. /1/

In this way exact distinctions have been worked out upon
questions in which the elements to be considered are few. For
instance, what is a reasonable time for presenting negotiable
paper, or what is a difference in kind and what a difference only
in quality, or the rule against perpetuities.

An example of the approach of decisions towards each other from
the opposite poles, and of the function of the jury midway, is to
be found in the Massachusetts adjudications, [128] that, if a
child of two years and four months is unnecessarily sent
unattended across and down a street in a large city, he cannot
recover for a negligent injury; /1/ that to allow a boy of eight
to be abroad alone is not necessarily negligent; /2/ and that the
effect of permitting a boy of ten to be abroad after dark is for
the jury; /3/ a coupled with the statement, which may be ventured
on without authority, that such a permission to a young man of
twenty possessed of common intelligence has no effect whatever.

Take again the law of ancient lights in England. An obstruction
to be actionable must be substantial. Under ordinary
circumstances the erection of a structure a hundred yards off,
and one foot above the ground, would not be actionable. One
within a foot of the window, and covering it, would be, without
any finding of a jury beyond these facts. In doubtful cases
midway, the question whether the interference was substantial has
been left to the jury. /4/ But as the elements are few and
permanent, an inclination has been shown to lay down a definite
rule, that, in ordinary cases, the building complained of must
not be higher than the distance of its base from the dominant
windows. And although this attempt to work out an exact line
requires much caution, it is entirely philosophical in spirit.

The same principle applies to negligence. If the whole evidence
in the case was that a party, in full command of [129] senses and
intellect, stood on a railway track, looking at an approaching
engine until it ran him down, no judge would leave it to the jury
to say whether the conduct was prudent. If the whole evidence was
that he attempted to cross a level track, which was visible for
half a mile each way, and on which no engine was in sight, no
court would allow a jury to find negligence. Between these
extremes are cases which would go to the jury. But it is obvious
that the limit of safety in such cases, supposing no further
elements present, could be determined to a foot by mathematical

The trouble with many cases of negligence is, that they are of a
kind not frequently recurring, so as to enable any given judge to
profit by long experience with juries to lay down rules, and that
the elements are so complex that courts are glad to leave the
whole matter in a lump for the jury's determination.

I reserve the relation between negligent and other torts for the
next Lecture.



[130] The next subjects to be considered are fraud, malice, and
intent. In the discussion of unintentional wrongs, the greatest
difficulty to be overcome was found to be the doctrine that a man
acts always at his peril. In what follows, on the other hand, the
difficulty will be to prove that actual wickedness of the kind
described by the several words just mentioned is not an element
in the civil wrongs to which those words are applied.

It has been shown, in dealing with the criminal law, that, when
we call an act malicious in common speech, we mean that harm to
another person was intended to come of it, and that such harm was
desired for its own sake as an end in itself. For the purposes of
the criminal law, however, intent alone was found to be
important, and to have the same consequences as intent with
malevolence superadded. Pursuing the analysis, intent was found
to be made up of foresight of the harm as a consequence, coupled
with a desire to bring it about, the latter being conceived as
the motive for the act in question. Of these, again, foresight
only seemed material. As a last step, foresight was reduced to
its lowest term, and it was concluded that, subject to exceptions
which were explained, the general basis of criminal liability was
knowledge, at the time of action, [131] of facts from which
common experience showed that certain harmful results were likely
to follow.

It remains to be seen whether a similar reduction is possible on
the civil side of the law, and whether thus fraudulent,
malicious, intentional, and negligent wrongs can be brought into
a philosophically continuous series.

A word of preliminary explanation will be useful. It has been
shown in the Lecture just referred to that an act, although
always importing intent, is per se indifferent to the law. It is
a willed, and therefore an intended coordination of muscular
contractions. But the intent necessarily imported by the act ends
there. And all muscular motions or co-ordinations of them are
harmless apart from concomitant circumstances, the presence of
which is not necessarily implied by the act itself. To strike out
with the fist is the same act, whether done in a desert or in a

The same considerations which have been urged to show that an act
alone, by itself, does not and ought not to impose either civil
or criminal liability, apply, at least frequently, to a series of
acts, or to conduct, although the series shows a further
co-ordination and a further intent. For instance, it is the same
series of acts to utter a sentence falsely stating that a certain
barrel contains No. 1 Mackerel, whether the sentence is uttered
in the secrecy of the closet, or to another man in the course of
a bargain. There is, to be sure, in either case, the further
intent, beyond the co-ordination of muscles for a single sound,
to allege that a certain barrel has certain contents,--an intent
necessarily shown by the ordering of the words. But both the
series of acts and the intent are per se indifferent. They are
innocent when spoken in solitude, and [132] are only a ground of
liability when certain concomitant circumstances are shown.

The intent which is meant when spoken of as an element of legal
liability is an intent directed toward the harm complained of, or
at least toward harm. It is not necessary in every case to carry
the analysis back to the simple muscular contractions out of
which a course of conduct is made up. On the same principle that
requires something more than an act followed by damage to make a
man liable, we constantly find ourselves at liberty to assume a
co-ordinated series of acts as a proximately simple element, per
se indifferent, in considering what further circumstances or
facts must be present before the conduct in question is at the
actor's peril. It will save confusion and the need of repetition
if this is borne in mind in the following discussion.

The chief forms of liability in which fraud, malice, and intent
are said to be necessary elements, are deceit, slander and libel,
malicious prosecution, and conspiracy, to which, perhaps, may be
added trover.

Deceit is a notion drawn from the moral world, and in its popular
sense distinctly imports wickedness. The doctrine of the common
law with regard to it is generally stated in terms which are only
consistent with actual guilt, and all actual guilty intent. It is
said that a man is liable to an action for deceit if he makes a
false representation to another, knowing it to be false, but
intending that the other should believe and act upon it, if the
person addressed believes it, and is thereby persuaded to act to
his own harm. This is no doubt the typical case, and it is a case
of intentional moral wrong. Now, what is the party's conduct
here. It consists in uttering certain words, [133] so ordered
that the utterance of them imports a knowledge of the meaning
which they would convey if heard. But that conduct with only that
knowledge is neither moral nor immoral. Go one step further, and
add the knowledge of another's presence within hearing, still the
act has no determinate character. The elements which make it
immoral are the knowledge that the statement is false, and the
intent that it shall be acted on.

The principal question then is, whether this intent can be
reduced to the same terms as it has been in other cases. There is
no difficulty in the answer. It is perfectly clear that the
intent that a false representation should be acted on would be
conclusively established by proof that the defendant knew that
the other party intended to act upon it. If the defendant foresaw
the consequence of his acts, he is chargeable, whether his motive
was a desire to induce the other party to act, or simply an
unwillingness for private reasons to state the truth. If the
defendant knew a present fact (the other party's intent), which,
according to common experience, made it likely that his act would
have the harmful consequence, he is chargeable, whether he in
fact foresaw the consequence or not.

In this matter the general conclusion follows from a single
instance. For the moment it is admitted that in one case
knowledge of a present fact, such as the other party's intent to
act on the false statement, dispenses with proof of an intent to
induce him to act upon it, it is admitted that the lesser element
is all that is necessary in the larger compound. For intent
embraces knowledge sufficing for foresight, as has been shown.
Hence, when you prove intent you prove knowledge, and intent may
often [134] be the easier to prove of the two. But when you prove
knowledge you do not prove intent.

It may be said, however, that intent is implied or presumed in
such a case as has been supposed. But this is only helping out a
false theory by a fiction. It is very much like saying that a
consideration is presumed for an instrument under seal; which is
merely a way of reconciling the formal theory that all contracts
must have a consideration with the manifest fact that sealed
instruments do not require one. Whenever it is said that a
certain thing is essential to liability, but that it is
conclusively presumed from something else, there is always ground
for suspicion that the essential clement is to be found in that
something else, and not in what is said to be presumed from it.

With regard to the intent necessary to deceit, we need not stop
with the single instance which has been given. The law goes no
farther than to require proof either of the intent, or that the
other party was justified in inferring such intention. So that
the whole meaning of the requirement is, that the natural and
manifest tendency of the representation, under the known
circumstances, must have been to induce the opinion that it was
made with a view to action, and so to induce action on the faith
of it. The standard of what is called intent is thus really an
external standard of conduct under the known circumstances, and
the analysis of the criminal law holds good here.

Nor is this all. The law pursuing its course of specification, as
explained in the last Lecture, decides what is the tendency of
representations in certain cases,--as, for instance, that a horse
is sound at the time of making a [135] sale; or, in general, of
any statement of fact which it is known the other party intends
to rely on. Beyond these scientific rules lies the vague realm of
the jury.

The other moral element in deceit is knowledge that the statement
was false. With this I am not strictly concerned, because all
that is necessary is accomplished when the elements of risk are
reduced to action and knowledge. But it will aid in the general
object of showing that the tendency of the law everywhere is to
transcend moral and reach external standards, if this knowledge
of falsehood can be transmuted into a formula not necessarily
importing guilt, although, of course, generally accompanied by it
in fact. The moment we look critically at it, we find the moral
side shade away.

The question is, what known circumstances are enough throw the
risk of a statement upon him who makes it, if it induces another
man to act, and it turns out untrue. Now, it is evident that a
man may take the risk of his statement by express agreement, or
by an implied one which the law reads into his bargain. He may in
legal language warrant the truth of it, and if it is not true,
the law treats it as a fraud, just as much when he makes it fully
believing it, as when he knows that it is untrue, and means to
deceive. If, in selling a horse, the seller warranted him to be
only five years old, and in fact he was thirteen, the seller
could be sued for a deceit at common law, although he thought the
horse was only five. /1/ The common-law liability for the truth
of statements is, therefore, more extensive than the sphere of
actual moral fraud. But, again, it is enough in general if a
representation [136] is made recklessly, without knowing whether
it is true or false. Now what does "recklessly" mean. It does not
mean actual personal indifference to the truth of the statement.
It means only that the data for the statement were so far
insufficient that a prudent man could not have made it without
leading to the inference that he was indifferent. That is to say,
repeating an analysis which has been gone through with before, it
means that the law, applying a general objective standard,
determines that, if a man makes his statement on those data, he
is liable, whatever was the state of his mind, and although he
individually may have been perfectly free from wickedness in
making it.

Hence similar reasoning to that which has been applied already to
intent may be applied to knowledge of falsity. Actual knowledge
may often be easier to prove than that the evidence was
insufficient to warrant the statement, and when proved it
contains the lesser element. But as soon as the lesser element is
shown to be enough, it is shown that the law is ready to apply an
external or objective standard here also.

Courts of equity have laid down the doctrine in terms which are
so wholly irrespective of the actual moral condition of the
defendant as to go to an opposite extreme. It is said that "when
a representation in a matter of business is made by one man to
another calculated to induce him to adapt his conduct to it, it
is perfectly immaterial whether the representation is made
knowing it to be untrue, or whether it is made believing it to be
true, if, in fact, it was untrue." /1/

Perhaps the actual decisions could be reconciled on a [137]
narrower principle, but the rule just stated goes the length of
saying that in business matters a man makes every statement (of a
kind likely to be acted on) at his peril. This seems hardly
justifiable in policy. The moral starting point of liability in
general should never be forgotten, and the law cannot without
disregarding it hold a man answerable for statements based on
facts which would have convinced a wise and prudent man of their
truth. The public advantage and necessity of freedom in imparting
information, which privileges even the slander of a third person,
ought a fortiori, it seems to me, to privilege statements made at
the request of the party who complains of them.

The common law, at any rate, preserves the reference to morality
by making fraud the ground on which it goes. It does not hold
that a man always speaks at his peril. But starting from the
moral ground, it works out an external standard of what would be
fraudulent in the average prudent member of the community, and
requires every member at his peril to avoid that. As in other
cases, it is gradually accumulating precedents which decide that
certain statements under certain circumstances are at the peril
of the party who makes them.

The elements of deceit which throw the risk of his conduct upon a
party are these. First, making a statement of facts purporting to
be serious. Second, the known presence of another within hearing.
Third, known facts sufficient to warrant the expectation or
suggest the probability that the other party will act on the
statement. (What facts are sufficient has been specifically
determined by the courts in some instances; in others, no doubt,
the question would go to the jury on the principles heretofore
explained.) Fourth, the [138] falsehood of the statement. This
must be known, or else the known evidence concerning the matter
of the statement must be such as would not warrant belief
according to the ordinary course of human experience. (On this
point also the court may be found to lay down specific rules in
some cases. /1/)

I next take up the law of slander. It has often been said that
malice is one of the elements of liability, and the doctrine is
commonly stated in this way: that malice must exist, but that it
is presumed by law from the mere speaking of the words; that
again you may rebut this presumption of malice by showing that
the words were spoken under circumstances which made the
communication privileged,-- as, for instance, by a lawyer in the
necessary course of his argument, or by a person answering in
good faith to inquiries as to the character of a former servant,-
and then, it is said, the plaintiff may meet this defence in some
cases by showing that the words were spoken with actual malice.

All this sounds as if at least actual intent to cause the damage
complained of, if not malevolence, were at the bottom of this
class of wrongs. Yet it is not so. For although the use of the
phrase "malice" points as usual to an original moral standard,
the rule that it is presumed upon proof of speaking certain words
is equivalent to saying that the overt conduct of speaking those
words may be actionable whether the consequence of damage to the
plaintiff was intended or not. And this fails in with the general
theory, because the manifest tendency of slanderous words is to
harm the person of whom they are spoken. Again, the real
substance of the defence is not that the damage [139] was not
intended, -- that would be no defence at all; but that, whether
it was intended or not,--that is, even if the defendant foresaw
it and foresaw it with pleasure,--the manifest facts and
circumstances under which he said it were such that the law
considered the damage to the plaintiff of less importance than
the benefit of free speaking.

It is more difficult to apply the same analysis to the last stage
of the process, but perhaps it is not impossible. It is said that
the plaintiff may meet a case of privilege thus made out on the
part of the defendant, by proving actual malice, that is, actual
intent to cause the damage complained of. But how is this actual
malice made out? It is by showing that the defendant knew the
statement which he made was false, or that his untrue statements
were grossly in excess of what the occasion required. Now is it
not very evident that the law is looking to a wholly different
matter from the defendant's intent? The fact that the defendant
foresaw and foresaw with pleasure the damage to the plaintiff, is
of no more importance in this case than it would be where the
communication was privileged. The question again is wholly a
question of knowledge, or other external standard. And what makes
even knowledge important? It is that the reason for which a man
is allowed in the other instances to make false charges against
his neighbors is wanting. It is for the public interest that
people should be free to give the best information they can under
certain circumstances without fear, but there is no public
benefit in having lies told at any time; and when a charge is
known to be false, or is in excess of what is required by the
occasion, it is not necessary to make that charge in order to
speak freely, and [140] therefore it falls under the ordinary
rule, that certain charges are made at the party's peril in case
they turn out to be false, whether evil consequences were
intended or not. The defendant is liable, not because his intent
was evil, but because he made false charges without excuse.

It will be seen that the peril of conduct here begins farther
back than with deceit, as the tendency of slander is more


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