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The Common Law

by Oliver Wendell Holmes · English · Gutenberg #2449 · 750,525 chars · public domain (US)

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Title: The Common Law

Author: Oliver Wendell Holmes


        
Release date: December 1, 2000 [eBook #2449]
                Most recently updated: July 17, 2012

Language: English

Other information and formats: www.gutenberg.org/ebooks/2449

Credits: Produced by Stuart E. Thiel and David Widger


*** START OF THE PROJECT GUTENBERG EBOOK THE COMMON LAW ***




Produced by Stuart E. Thiel





THE COMMON LAW

By Oliver Wendell Holmes, Jr.



Conventions:

Numbers in square brackets (e.g. [245]) refer to original page
numbers. Original footnotes were numbered page-by-page, and are
collected at the end of the text. In the text, numbers in slashes
(e.g./1/) refer to original footnote numbers. In the footnote
section, a number such as 245/1 refers to (original) page 245,
footnote 1. The footnotes are mostly citations to old English law
reporters and to commentaries by writers such as Ihering, Bracton
and Blackstone. I cannot give a source for decrypting the
notation.

There is quite a little Latin and some Greek in the original
text. I have reproduced the Latin. The Greek text is omitted; its
place is marked by the expression [Greek characters]. Italics and
diacritical marks such as accents and cedillas are omitted and
unmarked.

Lecture X has two subheads--Successions After Death and
Successions Inter Vivos. Lecture XI is also titled Successions
Inter Vivos. This conforms to the original.




LECTURE I. -- EARLY FORMS OF LIABILITY.

[1] The object of this book is to present a general view of the
Common Law. To accomplish the task, other tools are needed
besides logic. It is something to show that the consistency of a
system requires a particular result, but it is not all. The life
of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men,
have had a good deal more to do than the syllogism in determining
the rules by which men should be governed. The law embodies the
story of a nation's development through many centuries, and it
cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to know what it
is, we must know what it has been, and what it tends to become.
We must alternately consult history and existing theories of
legislation. But the most difficult labor will be to understand
the combination of the two into new products at every stage. The
substance of the law at any given time pretty nearly [2]
corresponds, so far as it goes, with what is then understood to
be convenient; but its form and machinery, and the degree to
which it is able to work out desired results, depend very much
upon its past.

In Massachusetts today, while, on the one hand, there are a great
many rules which are quite sufficiently accounted for by their
manifest good sense, on the other, there are some which can only
be understood by reference to the infancy of procedure among the
German tribes, or to the social condition of Rome under the
Decemvirs.

I shall use the history of our law so far as it is necessary to
explain a conception or to interpret a rule, but no further. In
doing so there are two errors equally to be avoided both by
writer and reader. One is that of supposing, because an idea
seems very familiar and natural to us, that it has always been
so. Many things which we take for granted have had to be
laboriously fought out or thought out in past times. The other
mistake is the opposite one of asking too much of history. We
start with man full grown. It may be assumed that the earliest
barbarian whose practices are to be considered, had a good many
of the same feelings and passions as ourselves.

The first subject to be discussed is the general theory of
liability civil and criminal. The Common Law has changed a good
deal since the beginning of our series of reports, and the search
after a theory which may now be said to prevail is very much a
study of tendencies. I believe that it will be instructive to go
back to the early forms of liability, and to start from them.

It is commonly known that the early forms of legal procedure were
grounded in vengeance. Modern writers [3] have thought that the
Roman law started from the blood feud, and all the authorities
agree that the German law begun in that way. The feud led to the
composition, at first optional, then compulsory, by which the
feud was bought off. The gradual encroachment of the composition
may be traced in the Anglo-Saxon laws, /1/ and the feud was
pretty well broken up, though not extinguished, by the time of
William the Conqueror. The killings and house-burnings of an
earlier day became the appeals of mayhem and arson. The appeals
de pace et plagis and of mayhem became, or rather were in
substance, the action of trespass which is still familiar to
lawyers. /2/ But as the compensation recovered in the appeal was
the alternative of vengeance, we might expect to find its scope
limited to the scope of vengeance. Vengeance imports a feeling of
blame, and an opinion, however distorted by passion, that a wrong
has been done. It can hardly go very far beyond the case of a
harm intentionally inflicted: even a dog distinguishes between
being stumbled over and being kicked.

Whether for this cause or another, the early English appeals for
personal violence seem to have been confined to intentional
wrongs. Glanvill /3/ mentions melees, blows, and wounds,--all
forms of intentional violence. In the fuller description of such
appeals given by Bracton /4/ it is made quite clear that they
were based on intentional assaults. The appeal de pace et plagis
laid an intentional assault, described the nature of the arms
used, and the length and depth of the wound. The appellor also
had [4] to show that he immediately raised the hue and cry. So
when Bracton speaks of the lesser offences, which were not sued
by way of appeal, he instances only intentional wrongs, such as
blows with the fist, flogging, wounding, insults, and so forth.
/1/ The cause of action in the cases of trespass reported in the
earlier Year Books and in the Abbreviatio Plaeitorum is always an
intentional wrong. It was only at a later day, and after
argument, that trespass was extended so as to embrace harms which
were foreseen, but which were not the intended consequence of the
defendant's act. /2/ Thence again it extended to unforeseen
injuries. /3/

It will be seen that this order of development is not quite
consistent with an opinion which has been held, that it was a
characteristic of early law not to penetrate beyond the external
visible fact, the damnum corpore corpori datum. It has been
thought that an inquiry into the internal condition of the
defendant, his culpability or innocence, implies a refinement of
juridical conception equally foreign to Rome before the Lex
Aquilia, and to England when trespass took its shape. I do not
know any very satisfactory evidence that a man was generally held
liable either in Rome /4/ or England for the accidental
consequences even of his own act. But whatever may have been the
early law, the foregoing account shows the starting-point of the
system with which we have to deal. Our system of private
liability for the consequences of a man's own acts, that is, for
his trespasses, started from the notion of actual intent and
actual personal culpability.

The original principles of liability for harm inflicted by [5]
another person or thing have been less carefully considered
hitherto than those which governed trespass, and I shall
therefore devote the rest of this Lecture to discussing them. I
shall try to show that this liability also had its root in the
passion of revenge, and to point out the changes by which it
reached its present form. But I shall not confine myself strictly
to what is needful for that purpose, because it is not only most
interesting to trace the transformation throughout its whole
extent, but the story will also afford an instructive example of
the mode in which the law has grown, without a break, from
barbarism to civilization. Furthermore, it will throw much light
upon some important and peculiar doctrines which cannot be
returned to later.

A very common phenomenon, and one very familiar to the student of
history, is this. The customs, beliefs, or needs of a primitive
time establish a rule or a formula. In the course of centuries
the custom, belief, or necessity disappears, but the rule
remains. The reason which gave rise to the rule has been
forgotten, and ingenious minds set themselves to inquire how it
is to be accounted for. Some ground of policy is thought of,
which seems to explain it and to reconcile it with the present
state of things; and then the rule adapts itself to the new
reasons which have been found for it, and enters on a new career.
The old form receives a new content, and in time even the form
modifies itself to fit the meaning which it has received. The
subject under consideration illustrates this course of events
very clearly.

I will begin by taking a medley of examples embodying as many
distinct rules, each with its plausible and seemingly sufficient
ground of policy to explain it.

[6] A man has an animal of known ferocious habits, which escapes
and does his neighbor damage. He can prove that the animal
escaped through no negligence of his, but still he is held
liable. Why? It is, says the analytical jurist, because, although
he was not negligent at the moment of escape, he was guilty of
remote heedlessness, or negligence, or fault, in having such a
creature at all. And one by whose fault damage is done ought to
pay for it.

A baker's man, while driving his master's cart to deliver hot
rolls of a morning, runs another man down. The master has to pay
for it. And when he has asked why he should have to pay for the
wrongful act of an independent and responsible being, he has been
answered from the time of Ulpian to that of Austin, that it is
because he was to blame for employing an improper person. If he
answers, that he used the greatest possible care in choosing his
driver, he is told that that is no excuse; and then perhaps the
reason is shifted, and it is said that there ought to be a remedy
against some one who can pay the damages, or that such wrongful
acts as by ordinary human laws are likely to happen in the course
of the service are imputable to the service.

Next, take a case where a limit has been set to liability which
had previously been unlimited. In 1851, Congress passed a law,
which is still in force, and by which the owners of ships in all
the more common cases of maritime loss can surrender the vessel
and her freight then pending to the losers; and it is provided
that, thereupon, further proceedings against the owners shall
cease. The legislators to whom we owe this act argued that, if a
merchant embark a portion of his property upon a hazardous
venture, it is reasonable that his stake should be confined to
what [7] he puts at risk,--a principle similar to that on which
corporations have been so largely created in America during the
last fifty years.

It has been a rule of criminal pleading in England down into the
present century, that an indictment for homicide must set forth
the value of the instrument causing the death, in order that the
king or his grantee might claim forfeiture of the deodand, "as an
accursed thing," in the language of Blackstone.

I might go on multiplying examples; but these are enough to show
the remoteness of the points to be brought together.--As a first
step towards a generalization, it will be necessary to consider
what is to be found in ancient and independent systems of law.

There is a well-known passage in Exodus, /1/ which we shall have
to remember later: "If an ox gore a man or a woman, that they
die: then the ox shall be surely stoned, and his flesh shall not
be eaten; but the owner of the ox shall be quit." When we turn
from the Jews to the Greeks, we find the principle of the passage
just quoted erected into a system. Plutarch, in his Solon, tells
us that a dog that had bitten a man was to be delivered up bound
to a log four cubits long. Plato made elaborate provisions in his
Laws for many such cases. If a slave killed a man, he was to be
given up to the relatives of the deceased. /2/ If he wounded a
man, he was to be given up to the injured party to use him as he
pleased. /3/ So if he did damage to which the injured party did
not contribute as a joint cause. In either case, if the owner [8]
failed to surrender the slave, he was bound to make good the
loss. /1/ If a beast killed a man, it was to be slain and cast
beyond the borders. If an inanimate thing caused death, it was to
be cast beyond the borders in like manner, and expiation was to
be made. /2/ Nor was all this an ideal creation of merely
imagined law, for it was said in one of the speeches of
Aeschines, that "we banish beyond our borders stocks and stones
and steel, voiceless and mindless things, if they chance to kill
a man; and if a man commits suicide, bury the hand that struck
the blow afar from its body." This is mentioned quite as an
every-day matter, evidently without thinking it at all
extraordinary, only to point an antithesis to the honors heaped
upon Demosthenes. /3/ As late as the second century after Christ
the traveller Pausanias observed with some surprise that they
still sat in judgment on inanimate things in the Prytaneum. /4/
Plutarch attributes the institution to Draco. /5/

In the Roman law we find the similar principles of the noxoe
deditio gradually leading to further results. The Twelve Tables
(451 B.C.) provided that, if an animal had done damage, either
the animal was to be surrendered or the damage paid for. /6/ We
learn from Gains that the same rule was applied to the torts of
children or slaves, /7/ and there is some trace of it with regard
to inanimate things.

The Roman lawyers, not looking beyond their own [9] system or
their own time, drew on their wits for an explanation which would
show that the law as they found it was reasonable. Gaius said
that it was unjust that the fault of children or slaves should be
a source of loss to their parents or owners beyond their own
bodies, and Ulpian reasoned that a fortiori this was true of
things devoid of life, and therefore incapable of fault. /1/ This
way of approaching the question seems to deal with the right of
surrender as if it were a limitation of a liability incurred by a
parent or owner, which would naturally and in the first instance
be unlimited. But if that is what was meant, it puts the cart
before the horse. The right of surrender was not introduced as a
limitation of liability, but, in Rome and Greece alike, payment
was introduced as the alternative of a failure to surrender.

The action was not based, as it would be nowadays, on the fault
of the parent or owner. If it had been, it would always have been
brought against the person who had control of the slave or animal
at the time it did the harm complained of, and who, if any one,
was to blame for not preventing the injury. So far from this
being the course, the person to be sued was the owner at the time
of suing. The action followed the guilty thing into whosesoever
hands it came. /2/ And in curious contrast with the principle as
inverted to meet still more modern views of public policy, if the
animal was of a wild nature, that is, in the very case of the
most ferocious animals, the owner ceased to be liable the moment
it escaped, because at that moment he ceased to be owner. /3/
There [10] seems to have been no other or more extensive
liability by the old law, even where a slave was guilty with his
master's knowledge, unless perhaps he was a mere tool in his
master's hands. /1/ Gains and Ulpian showed an inclination to cut
the noxoe deditio down to a privilege of the owner in case of
misdeeds committed without his knowledge; but Ulpian is obliged
to admit, that by the ancient law, according to Celsus, the
action was noxal where a slave was guilty even with the privity
of his master. /2/

All this shows very clearly that the liability of the owner was
merely a way of getting at the slave or animal which was the
immediate cause of offence. In other words, vengeance on the
immediate offender was the object of the Greek and early Roman
process, not indemnity from the master or owner. The liability of
the owner was simply a liability of the offending thing. In the
primitive customs of Greece it was enforced by a judicial process
expressly directed against the object, animate or inanimate. The
Roman Twelve Tables made the owner, instead of the thing itself,
the defendant, but did not in any way change the ground of
liability, or affect its limit. The change was simply a device to
allow the owner to protect his interest. /3/

But it may be asked how inanimate objects came to be [11] pursued
in this way, if the object of the procedure was to gratify the
passion of revenge. Learned men have been ready to find a reason
in the personification of inanimate nature common to savages and
children, and there is much to confirm this view. Without such a
personification, anger towards lifeless things would have been
transitory, at most. It is noticeable that the commonest example
in the most primitive customs and laws is that of a tree which
falls upon a man, or from which he falls and is killed. We can
conceive with comparative ease how a tree might have been put on
the same footing with animals. It certainly was treated like
them, and was delivered to the relatives, or chopped to pieces
for the gratification of a real or simulated passion. /1/

In the Athenian process there is also, no doubt, to be traced a
different thought. Expiation is one of the ends most insisted on
by Plato, and appears to have been the purpose of the procedure
mentioned by Aeschines. Some passages in the Roman historians
which will be mentioned again seem to point in the same
direction. /2/

Another peculiarity to be noticed is, that the liability seems to
have been regarded as attached to the body doing the damage, in
an almost physical sense. An untrained intelligence only
imperfectly performs the analysis by which jurists carry
responsibility back to the beginning of a chain of causation. The
hatred for anything giving us pain, which wreaks itself on the
manifest cause, and which leads even civilized man to kick a door
when it pinches his finger, is embodied in the noxoe deditio and
[12] other kindred doctrines of early Roman law. There is a
defective passage in Gaius, which seems to say that liability may
sometimes be escaped by giving up even the dead body of the
offender. /1/ So Livy relates that, Brutulus Papins having caused
a breach of truce with the Romans, the Samnites determined to
surrender him, and that, upon his avoiding disgrace and
punishment by suicide, they sent his lifeless body. It is
noticeable that the surrender seems to be regarded as the natural
expiation for the breach of treaty, /2/ and that it is equally a
matter of course to send the body when the wrong-doer has
perished. /3/

The most curious examples of this sort occur in the region of
what we should now call contract. Livy again furnishes an
example, if, indeed, the last is not one. The Roman Consul
Postumius concluded the disgraceful peace of the Caudine Forks
(per sponsionem, as Livy says, denying the common story that it
was per feedus), and he was sent to Rome to obtain the sanction
of the people. When there however, he proposed that the persons
who had made the [13] contract, including himself, should be
given up in satisfaction of it. For, he said, the Roman people
not having sanctioned the agreement, who is so ignorant of the
jus fetialium as not to know that they are released from
obligation by surrendering us? The formula of surrender seems to
bring the case within the noxoe deditio. /1/ Cicero narrates a
similar surrender of Mancinus by the pater-patratus to the
Numantines, who, however, like the Samnites in the former case,
refused to receive him. /2/

It might be asked what analogy could have been found between a
breach of contract and those wrongs which excite the desire for
vengeance. But it must be remembered that the distinction between
tort and breaches of contract, and especially between the
remedies for the two, is not found ready made. It is conceivable
that a procedure adapted to redress for violence was extended to
other cases as they arose. Slaves were surrendered for theft as
well as [14] for assault; /1/ and it is said that a debtor who
did not pay his debts, or a seller who failed to deliver an
article for which he had been paid, was dealt with on the same
footing as a thief. /2/ This line of thought, together with the
quasi material conception of legal obligations as binding the
offending body, which has been noticed, would perhaps explain the
well-known law of the Twelve Tables as to insolvent debtors.
According to that law, if a man was indebted to several creditors
and insolvent, after certain formalities they might cut up his
body and divide it among them. If there was a single creditor, he
might put his debtor to death or sell him as a slave. /3/

If no other right were given but to reduce a debtor to slavery,
the law might be taken to look only to compensation, and to be
modelled on the natural working of self-redress. /4/ The
principle of our own law, that taking a man's body on execution
satisfies the debt, although he is not detained an hour, seems to
be explained in that way. But the right to put to death looks
like vengeance, and the division of the body shows that the debt
was conceived very literally to inhere in or bind the body with a
vinculum juris.

Whatever may be the true explanation of surrender in connection
with contracts, for the present purpose we need not go further
than the common case of noxoe deditio for wrongs. Neither is the
seeming adhesion of liability to the very body which did the harm
of the first importance. [15] The Roman law dealt mainly with
living creatures,--with animals and slaves. If a man was run
over, it did not surrender the wagon which crushed him, but the
ox which drew the wagon. /1/ At this stage the notion is easy to
understand. The desire for vengeance may be felt as strongly
against a slave as against a freeman, and it is not without
example nowadays that a like passion should be felt against an
animal. The surrender of the slave or beast empowered the injured
party to do his will upon them. Payment by the owner was merely a
privilege in case he wanted to buy the vengeance off.

It will readily be imagined that such a system as has been
described could not last when civilization had advanced to any
considerable height. What had been the privilege of buying off
vengeance by agreement, of paying the damage instead of
surrendering the body of the offender, no doubt became a general
custom. The Aquilian law, passed about a couple of centuries
later than the date of the Twelve Tables, enlarged the sphere of
compensation for bodily injuries. Interpretation enlarged the
Aquilian law. Masters became personally liable for certain wrongs
committed by their slaves with their knowledge, where previously
they were only bound to surrender the slave. /2/ If a pack-mule
threw off his burden upon a passer-by because he had been
improperly overloaded, or a dog which might have been restrained
escaped from his master and bit any one, the old noxal action, as
it was called, gave way to an action under the new law to enforce
a general personal liability. /3/ Still later, ship-owners and
innkeepers were made liable [16] as if they were wrong-doers for
wrongs committed by those in their employ on board ship or in the
tavern, although of course committed without their knowledge. The
true reason for this exceptional responsibility was the
exceptional confidence which was necessarily reposed in carriers
and innkeepers. /1/ But some of the jurists, who regarded the
surrender of children and slaves as a privilege intended to limit
liability, explained this new liability on the ground that the
innkeeper or ship-owner was to a certain degree guilty of
negligence in having employed the services of bad men? This was
the first instance of a master being made unconditionally liable
for the wrongs of his servant. The reason given for it was of
general application, and the principle expanded to the scope of
the reason.

The law as to ship-owners and innkeepers introduced another and
more startling innovation. It made them responsible when those
whom they employed were free, as well as when they were slaves.
/3/ For the first time one man was made answerable for the wrongs
of another who was also answerable himself, and who had a
standing before the law. This was a great change from the bare
permission to ransom one's slave as a privilege. But here we have
the history of the whole modern doctrine of master and servant,
and principal and agent. All servants are now as free and as
liable to a suit as their masters. Yet the principle introduced
on special grounds in a special case, when servants were slaves,
is now the general law of this country and England, and under it
men daily have to pay large sums for other people's acts, in
which they had no part and [17] for which they are in no sense to
blame. And to this day the reason offered by the Roman jurists
for an exceptional rule is made to justify this universal and
unlimited responsibility. /1/

So much for one of the parents of our common law. Now let us turn
for a moment to the Teutonic side. The Salic Law embodies usages
which in all probability are of too early a date to have been
influenced either by Rome or the Old Testament. The thirty-sixth
chapter of the ancient text provides that, if a man is killed by
a domestic animal, the owner of the animal shall pay half the
composition (which he would have had to pay to buy off the blood
feud had he killed the man himself), and for the other half give
up the beast to the complainant. /2/ So, by chapter thirty-five,
if a slave killed a freeman, he was to be surrendered for one
half of the composition to the relatives of the slain man, and
the master was to pay the other half. But according to the gloss,
if the slave or his master had been maltreated by the slain man
or his relatives, the master had only to surrender the slave. /3/
It is interesting to notice that those Northern sources which
Wilda takes to represent a more primitive stage of German law
confine liability for animals to surrender alone. /4/ There is
also a trace of the master's having been able to free himself in
some cases, at a later date, by showing that the slave was no
longer in [18] his possession. /1/ There are later provisions
making a master liable for the wrongs committed by his slave by
his command. /2/ In the laws adapted by the Thuringians from the
earlier sources, it is provided in terms that the master is to
pay for all damage done by his slaves. /4/

In short, so far as I am able to trace the order of development
in the customs of the German tribes, it seems to have been
entirely similar to that which we have already followed in the
growth of Roman law. The earlier liability for slaves and animals
was mainly confined to surrender; the later became personal, as
at Rome.

The reader may begin to ask for the proof that all this has any
bearing on our law of today. So far as concerns the influence of
the Roman law upon our own, especially the Roman law of master
and servant, the evidence of it is to be found in every book
which has been written for the last five hundred years. It has
been stated already that we still repeat the reasoning of the
Roman lawyers, empty as it is, to the present day. It will be
seen directly whether the German folk-laws can also be followed
into England.

In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it
is said, "If any one's slave slay a freeman, whoever it be, let
the owner pay with a hundred shillings, give up the slayer," &c.
/1/ There are several other similar provisions. In the nearly
contemporaneous laws of Ine, the surrender and payment are simple
alternatives. "If a Wessex slave slay an Englishman, then shall
he who owns him deliver him up to the lord and the kindred, or
give sixty shillings for his life." /2/ Alfred's laws (A.D.
871-901) have a like provision as to cattle. "If a neat wound a
man, let the neat be delivered up or compounded for." /3/ And
Alfred, although two hundred years later than the first English
lawgivers who have been quoted, seems to have gone back to more
primitive notions than we find before his time. For the same
principle is extended to the case of a tree by which a man is
killed. "If, at their common work, one man slay another
unwilfully, let the tree be given to the kindred, and let them
have it off the land within thirty nights. Or let him take
possession of it who owns the wood." /4/

It is not inapposite to compare what Mr. Tylor has mentioned
concerning the rude Kukis of Southern Asia. "If a tiger killed a
Kuki, his family were in disgrace till they had retaliated by
killing and eating this tiger, or another; but further, if a man
was killed by a fall from a tree, his relatives would take their
revenge by cutting the tree down, and scattering it in chips."
/5/

To return to the English, the later laws, from about a hundred
years after Alfred down to the collection known as the laws of
Henry I, compiled long after the Conquest, [20] increase the
lord's liability for his household, and make him surety for his
men's good conduct. If they incur a fine to the king and run
away, the lord has to pay it unless he can clear himself of
complicity. But I cannot say that I find until a later period the
unlimited liability of master for servant which was worked out on
the Continent, both by the German tribes and at Rome. Whether the
principle when established was an indigenous growth, or whether
the last step was taken under the influence of the Roman law, of
which Bracton made great use, I cannot say. It is enough that the
soil was ready for it, and that it took root at an early day. /1/
This is all that need be said here with regard to the liability
of a master for the misdeeds of his servants.

It is next to be shown what became of the principle as applied to
animals. Nowadays a man is bound at his peril to keep his cattle
from trespassing, and he is liable for damage done by his dog or
by any fierce animal, if he has notice of a tendency in the brute
to do the harm complained of. The question is whether any
connection can be established between these very sensible and
intelligible rules of modern law and the surrender directed by
King Alfred.

Let us turn to one of the old books of the Scotch law, where the
old principle still appears in full force and is stated with its
reasons as then understood, /2/

"Gif ane wylde or head-strang horse, carries ane man [21] against
his will over an craig, or heuch, or to the water, and the man
happin to drowne, the horse sall perteine to the king as escheit.

"Bot it is otherwise of ane tame and dantoned horse; gif any man
fulishlie rides, and be sharp spurres compelles his horse to take
the water, and the man drownes, the horse sould not be escheit,
for that comes be the mans fault or trespasse, and not of the
horse, and the man has receaved his punishment, in sa farre as he
is perished and dead; and the horse quha did na fault, sould not
be escheit.

"The like reason is of all other beastes, quhilk slayes anie man,
[it is added in a later work, "of the quhilk slaughter they haue
gilt,"] for all these beasts sould be escheit." /1/

"The Forme and Maner of Baron Courts" continues as follows:--

"It is to witt, that this question is asked in the law, Gif ane
lord hes ane milne, and any man fall in the damne, and be borne
down with the water quhill he comes to the quheill, and there be
slaine to death with the quheill; quhither aught the milne to be
eseheir or not? The law sayes thereto nay, and be this reason,
For it is ane dead thing, and ane dead thing may do na fellony,
nor be made escheit throw their gilt. Swa the milne in this case
is not culpable, and in the law it is lawfull to the lord of the
land to haue ane mylne on his awin water quhere best likes him."
/2/

The reader will see in this passage, as has been remarked already
of the Roman law, that a distinction is taken between things
which are capable of guilt and those which [22] are not,--between
living and dead things; but he will also see that no difficulty
was felt in treating animals as guilty.

Take next an early passage of the English law, a report of what
was laid down by one of the English judges. In 1333 it was stated
for law, that, "if my dog kills your sheep, and I, freshly after
the fact, tender you the dog, you are without recovery against
me." /1/ More than three centuries later, in 1676, it was said
by Twisden, J. that, "if one hath kept a tame fox, which gets
loose and grows wild, he that hath kept him before shall not
answer for the damage the fox doth after he hath lost him, and he
hath resumed his wild nature." /2/ It is at least doubtful
whether that sentence ever would have been written but for the
lingering influence of the notion that the ground of the owner's
liability was his ownership of the offending: thing and his
failure to surrender it. When the fox escaped, by another
principle of law the ownership was at an end. In fact, that very
consideration was seriously pressed in England as late as 1846,
with regard to a monkey which escaped and bit the plaintiff, /3/
So it seems to be a reasonable conjecture, that it was this way
of thinking which led Lord Holt, near the beginning of the last
century, to intimate that one ground on which a man is bound at
his peril to restrain cattle from trespassing is that he has
valuable property in such animals, whereas he has not dogs, for
which his responsibility is less. /4/ To this day, in fact,
cautious judges state the law as to cattle to be, that, "if I am
the owner of an animal in which by law the [23] right of property
can exist, I am bound to take care that it does not stray into
the land of my neighbor." /1/

I do not mean that our modern law on this subject is only a
survival, and that the only change from primitive notions was to
substitute the owner for the offending animal. For although it is
probable that the early law was one of the causes which led to
the modern doctrine, there has been too much good sense in every
stage of our law to adopt any such sweeping consequences as would
follow from the wholesale transfer of liability supposed. An
owner is not bound at his peril to keep his cattle from harming
his neighbor's person. /2/ And in some of the earliest instances
of personal liability, even for trespass on a neighbor's land,
the ground seems to have been the owner's negligence. /3/

It is the nature of those animals which the common law recognizes
as the subject of ownership to stray, and when straying to do
damage by trampling down and eating crops. At the same time it is
usual and easy to restrain them. On the other hand, a dog, which
is not the subject of property, does no harm by simply crossing
the land of others than its owner. Hence to this extent the new
law might have followed the old. The right of property in the
[24] offending animal, which was the ancient ground of
responsibility, might have been adopted safely enough as the test
of a liability based on the fault of the owner. But the
responsibility for damage of a kind not to be expected from such
animals is determined on grounds of policy comparatively little
disturbed by tradition. The development of personal liability for
fierce wild animals at Rome has been explained. Our law seems to
have followed the Roman.

We will now follow the history of that branch of the primitive
notion which was least likely to survive,--the liability of
inanimate things.

It will be remembered that King Alfred ordained the surrender of
a tree, but that the later Scotch law refused it because a dead
thing could not have guilt. It will be remembered, also, that the
animals which the Scotch law forfeited were escheat to the king.
The same thing has remained true in England until well into this
century, with regard even to inanimate objects. As long ago as
Bracton, /1/ in case a man was slain, the coroner was to value
the object causing the death, and that was to be forfeited sa
deodand "pro rege." It was to be given to God, that is to say to
the Church, for the king, to be expended for the good of his
soul. A man's death had ceased to be the private affair of his
friends as in the time of the barbarian folk-laws. The king, who
furnished the court, now sued for the penalty. He supplanted the
family in the claim on the guilty thing, and the Church
supplanted him.

In Edward the First's time some of the cases remind of the
barbarian laws at their rudest stage. If a man fell from a tree,
the tree was deodand. /2/ If he drowned in a [25] well, the well
was to be filled up. /1/ It did not matter that the forfeited
instrument belonged to an innocent person. "Where a man killeth
another with the sword of John at Stile, the sword shall be
forfeit as deodand, and yet no default is in the owner." /2/ That
is from a book written in the reign of Henry VIII., about 1530.
And it has been repeated from Queen Elizabeth's time /3/ to
within one hundred years, /4/ that if my horse strikes a man, and
afterwards I sell my horse, and after that the man dies, the
horse shall be forfeited. Hence it is, that, in all indictments
for homicide, until very lately it has been necessary to state
the instrument causing the death and its value, as that the
stroke was given by a certain penknife, value sixpence, so as to
secure the forfeiture. It is said that a steam-engine has been
forfeited in this way.

I now come to what I regard as the most remarkable transformation
of this principle, and one which is a most important factor in
our law as it is today. I must for the moment leave the common
law and take up the doctrines of the Admiralty. In the early
books which have just been referred to, and long afterwards, the
fact of motion is adverted to as of much importance. A maxim of
Henry Spigurnel, a judge in the time of Edward I., is reported,
that "where a man is killed by a cart, or by the fall of a house,
or in other like manner, and the thing in motion is the cause of
the death, it shall be deodand." /5/ So it was [26] said in the
next reign that "oinne illud quod mover cum eo quod occidit
homines deodandum domino Regi erit, vel feodo clerici." /1/ The
reader sees how motion gives life to the object forfeited.

The most striking example of this sort is a ship. And accordingly
the old books say that, if a man falls from a ship and is
drowned, the motion of the ship must be taken to cause the death,
and the ship is forfeited,--provided, however, that this
happens in fresh water. /2/ For if the death took place on the
high seas, that was outside the ordinary jurisdiction. This
proviso has been supposed to mean that ships at sea were not
forfeited; /3/ but there is a long series of petitions to the
king in Parliament that such forfeitures may be done away with,
which tell a different story. /4/ The truth seems to be that the
forfeiture took place, but in a different court. A manuscript of
the reign of Henry VI., only recently printed, discloses the fact
that, if a man was killed or drowned at sea by the motion of the
ship, the vessel was forfeited to the admiral upon a proceeding
in the admiral's court, and subject to release by favor of the
admiral or the king. /5/

A ship is the most living of inanimate things. Servants sometimes
say "she" of a clock, but every one gives a gender to vessels.
And we need not be surprised, therefore, to find a mode of
dealing which has shown such extraordinary vitality in the
criminal law applied with even more striking thoroughness in the
Admiralty. It is only by supposing [27] the ship to have been
treated as if endowed with personality, that the arbitrary
seeming peculiarities of the maritime law can be made
intelligible, and on that supposition they at once become
consistent and logical.

By way of seeing what those peculiarities are, take first a case
of collision at sea. A collision takes place between two vessels,
the Ticonderoga and the Melampus, through the fault of the
Ticonderoga alone. That ship is under a lease at the time, the
lessee has his own master in charge, and the owner of the vessel
has no manner of control over it. The owner, therefore, is not to
blame, and he cannot even be charged on the ground that the
damage was done by his servants. He is free from personal
liability on elementary principles. Yet it is perfectly settled
that there is a lien on his vessel for the amount of the damage
done, /1/ and this means that that vessel may be arrested and
sold to pay the loss in any admiralty court whose process will
reach her. If a livery-stable keeper lets a horse and wagon to a
customer, who runs a man down by careless driving, no one would
think of claiming a right to seize the horse and wagon. It would
be seen that the only property which could be sold to pay for a
wrong was the property of the wrong-doer.

But, again, suppose that the vessel, instead of being under
lease, is in charge of a pilot whose employment is made
compulsory by the laws of the port which she is just entering.
The Supreme Court of the United States holds the ship liable in
this instance also. /2/ The English courts would probably have
decided otherwise, and the matter is settled in England by
legislation. But there the court of appeal, the Privy Council,
has been largely composed of common-law [28]lawyers, and it has
shown a marked tendency to assimilate common-law doctrine. At
common law one who could not impose a personal liability on the
owner could not bind a particular chattel to answer for a wrong
of which it had been the instrument. But our Supreme Court has
long recognized that a person may bind a ship, when he could not
bind the owners personally, because he was not the agent.

It may be admitted that, if this doctrine were not supported by
an appearance of good sense, it would not have survived. The ship
is the only security available in dealing with foreigners, and
rather than send one's own citizens to search for a remedy abroad
in strange courts, it is easy to seize the vessel and satisfy the
claim at home, leaving the foreign owners to get their indemnity
as they may be able. I dare say some such thought has helped to
keep the practice alive, but I believe the true historic
foundation is elsewhere. The ship no doubt, like a sword would
have been forfeited for causing death, in whosesoever hands it
might have been. So, if the master and mariners of a ship,
furnished with letters of reprisal, committed piracy against a
friend of the king, the owner lost his ship by the admiralty law,
although the crime was committed without his knowledge or assent.
/2/ It seems most likely that the principle by which the ship was
forfeited to the king for causing death, or for piracy, was the
same as that by which it was bound to private sufferers for other
damage, in whose hands soever it might have been when it did the
harm.

If we should say to an uneducated man today, "She did it and she
ought to pay for it," it may be doubted [29] whether he would see
the fallacy, or be ready to explain that the ship was only
property, and that to say, "The ship has to pay for it," /1/ was
simply a dramatic way of saying that somebody's property was to
be sold, and the proceeds applied to pay for a wrong committed by
somebody else.

It would seem that a similar form of words has been enough to
satisfy the minds of great lawyers. The following is a passage
from a judgment by Chief Justice Marshall, which is quoted with
approval by Judge Story in giving the opinion of the Supreme
Court of the United States: "This is not a proceeding against the
owner; it is a proceeding against the vessel for an offence
committed by the vessel; which is not the less an offence, and
does not the less subject her to forfeiture, because it was
committed without the authority and against the will of the
owner. It is true that inanimate matter can commit no offence.
But this body is animated and put in action by the crew, who are
guided by the master. The vessel acts and speaks by the master.
She reports herself by the master. It is, therefore, not
unreasonable that the vessel should be affected by this report."
And again Judge Story quotes from another case: "The thing is
here primarily considered as the offender, or rather the offence
is primarily attached to the thing." /2/

In other words, those great judges, although of course aware that
a ship is no more alive than a mill-wheel, thought that not only
the law did in fact deal with it as if it were alive, but that it
was reasonable that the law should do so. The reader will observe
that they do not say simply that it is reasonable on grounds of
policy to [30] sacrifice justice to the owner to security for
somebody else but that it is reasonable to deal with the vessel
as an offending thing. Whatever the hidden ground of policy may
be, their thought still clothes itself in personifying language.

Let us now go on to follow the peculiarities of the maritime law
in other directions. For the cases which have been stated are
only parts of a larger whole.

By the maritime law of the Middle Ages the ship was not only the
source, but the limit, of liability. The rule already prevailed,
which has been borrowed and adopted by the English statutes and
by our own act of Congress of 1851, according to which the owner
is discharged from responsibility for wrongful acts of a master
appointed by himself upon surrendering his interest in the vessel
and the freight which she had earned. By the doctrines of agency
he would be personally liable for the whole damage. If the origin
of the system of limited liability which is believed to be so
essential to modern commerce is to be attributed to those
considerations of public policy on which it would now be
sustained, that system has nothing to do with the law of
collision. But if the limit of liability here stands on the same
ground as the noxoe deditio, confirms the explanation already
given of the liability of the ship for wrongs done by it while
out of the owner's hands, and conversely existence of that
liability confirms the argument here.

Let us now take another rule, for which, as usual, there is a
plausible explanation of policy. Freight, it is said, the mother
of wages; for, we are told, "if the ship perished, [31] if the
mariners were to have their wages in such cases, they would not
use their endeavors, nor hazard their lives, for the safety of
the ship." /1/ The best commentary on this reasoning is, that the
law has recently been changed by statute. But even by the old law
there was an exception inconsistent with the supposed reason. In
case of shipwreck, which was the usual case of a failure to earn
freight, so long as any portion of the ship was saved, the lien
of the mariners remained. I suppose it would have been said,
because it was sound policy to encourage them to save all they
could. If we consider that the sailors were regarded as employed
by the ship, we shall understand very readily both the rule and
the exception. "The ship is the debtor," as was said in arguing a
case decided in the time of William III. /2/ If the debtor
perished, there was an end of the matter. If a part came ashore,
that might be proceeded against.

Even the rule in its modern form, that freight is the mother of
wages, is shown by the explanation commonly given to have
reference to the question whether the ship is lost or arrive
safe. In the most ancient source of the maritime law now extant,
which has anything about the matter, so far as I have been able
to discover, the statement is that the mariners will lose their
wages when the ship is lost. /3/ In like manner, in what is said
by its English [32] editor, Sir Travers Twiss, to be the oldest
part of the Consulate of the Sea, /1/ we read that "whoever the
freighter may be who runs away or dies, the ship is bound to pay:
the mariners." /2/ I think we may assume that the vessel was
bound by the contract with the sailors, much in the same way as
it was by the wrongs for which it was answerable, just as the
debtor's body was answerable for his debts, as well as for his
crimes, under the ancient law of Rome.

The same thing is true of other maritime dealings with the
vessel, whether by way of contract or otherwise. If salvage
service is rendered to a vessel, the admiralty court will hold
the vessel, although it has been doubted whether an action of
contract would lie, if the owners were sued at law. So the ship
is bound by the master's contract to carry cargo, just as in case
of collision, although she was under lease at the time. In such
cases, also, according to our Supreme Court, the master may bind
the vessel when he cannot bind the general owners. /4/ "By custom
the ship is bound to the merchandise, and the merchandise to the
ship." /5/ "By the maritime law every contract of the master
implies an hypothecation." /6/ It might be urged, no doubt, with
force, that, so far as the usual maritime contracts are
concerned, the dealing must be on the security of the ship or
merchandise in many cases, and therefore [33] that it is policy
to give this security in all cases; that the risk to which it
subjects ship-owners is calculable, and that they must take it
into account when they let their vessels. Again, in many cases,
when a party asserts a maritime lien by way of contract, he has
improved the condition of the thing upon which the lien is
claimed, and this has been recognized as a ground for such a lien
in some systems. But this is not true universally, nor in the
most important cases. It must be left to the reader to decide
whether ground has not been shown for believing that the same
metaphysical confusion which naturally arose as to the ship's
wrongful acts, affected the way of thinking as to her contracts.
The whole manner of dealing with vessels obviously took the form
which prevailed in the eases first mentioned. Pardessus, a high
authority, says that the lien for freight prevails even against
the owner of stolen goods, "as the master deals less with the
person than the thing." /2/ So it was said in the argument of a
famous English case, that "the ship is instead of the owner, and
therefore is answerable." /3/ In many cases of contract, as well
as tort, the vessel was not only the security for the debt, but
the limit of the owner's liability.

The principles of the admiralty are embodied in its form of
procedure. A suit may be brought there against a vessel by name,
any person interested in it being at liberty to come in and
defend, but the suit, if successful, ending in a sale of the
vessel and a payment of the plaintiff's claim out of the
proceeds. As long ago as the time of James I. it was said that
"the libel ought to be only [34] against the ship and goods, and
not against the party." /1/ And authority for the statement was
cited from the reign of Henry VI., the same reign when, as we
have seen, the Admiral claimed a forfeiture of ships for causing
death. I am bound to say, however, that I cannot find such an
authority of that date.

We have now followed the development of the chief forms of
liability in modern law for anything other than the immediate and
manifest consequences of a man's own acts. We have seen the
parallel course of events in the two parents,--the Roman law and
the German customs, and in the offspring of those two on English
soil with regard to servants, animals, and inanimate things. We
have seen a single germ multiplying and branching into products
as different from each other as the flower from the root. It
hardly remains to ask what that germ was. We have seen that it
was the desire of retaliation against the offending thing itself.
Undoubtedly, it might be argued that many of the rules stated
were derived from a seizure of the offending thing as security
for reparation, at first, perhaps, outside the law. That
explanation, as well as the one offered here; would show that
modern views of responsibility had not yet been attained, as the
owner of the thing might very well not have been the person in
fault. But such has not been the view of those most competent to
judge. A consideration of the earliest instances will show, as
might have been expected, that vengeance, not compensation, and
vengeance on the offending thing, was the original object. The ox
in Exodus was to be stoned. The axe in the Athenian law was to be
banished. The tree, in Mr. Tylor's instance, was to be chopped to
pieces. The [35] slave under all the systems was to be
surrendered to the relatives of the slain man, that they might do
with him what they liked. /1/ The deodand was an accursed thing.
The original limitation of liability to surrender, when the owner
was before the court, could not be accounted for if it was his
liability, and not that of his property, which was in question.
Even where, as in some of the cases, expiation seems to be
intended rather than vengeance, the object is equally remote from
an extrajudicial distress.

The foregoing history, apart from the purposes for which it has
been given, well illustrates the paradox of form and substance in
the development of law. In form its growth is logical. The
official theory is that each new decision follows syllogistically
from existing precedents. But just as the clavicle in the cat
only tells of the existence of some earlier creature to which a
collar-bone was useful, precedents survive in the law long after
the use they once served is at an end and the reason for them has
been forgotten. The result of following them must often be
failure and confusion from the merely logical point of view.

On the other hand, in substance the growth of the law is
legislative. And this in a deeper sense than that what the courts
declare to have always been the law is in fact new. It is
legislative in its grounds. The very considerations which judges
most rarely mention, and always with an apology, are the secret
root from which the law draws all the juices of life. I mean, of
course, considerations of what is expedient for the community
concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less
definitely understood views of public policy; most generally, to
be sure, [36] under our practice and traditions, the unconscious
result of instinctive preferences and inarticulate convictions,
but none the less traceable to views of public policy in the last
analysis. And as the law is administered by able and experienced
men, who know too much to sacrifice good sense to a syllogism, it
will be found that, when ancient rules maintain themselves in the
way that has been and will be shown in this book, new reasons
more fitted to the time have been found for them, and that they
gradually receive a new content, and at last a new form, from the
grounds to which they have been transplanted.

But hitherto this process has been largely unconscious. It is
important, on that account, to bring to mind what the actual
course of events has been. If it were only to insist on a more
conscious recognition of the legislative function of the courts,
as just explained, it would be useful, as we shall see more
clearly further on. /1/

What has been said will explain the failure of all theories which
consider the law only from its formal side; whether they attempt
to deduce the corpus from a priori postulates, or fall into the
humbler error of supposing the science of the law to reside in
the elegantia juris, or logical cohesion of part with part. The
truth is, that the law always approaching, and never reaching,
consistency. It is forever adopting new principles from life at
one end, and it always retains old ones from history at the
other, which have not yet been absorbed or sloughed off. It
will become entirely consistent only when it ceases to grow.

The study upon which we have been engaged is necessary both for
the knowledge and for the revision of the law. [37] However much
we may codify the law into a series of seemingly self-sufficient
propositions, those propositions will be but a phase in a
continuous growth. To understand their scope fully, to know how
they will be dealt with by judges trained in the past which the
law embodies, we must ourselves know something of that past. The
history of what the law has been is necessary to the knowledge of
what the law is.

Again, the process which I have described has involved the
attempt to follow precedents, as well as to give a good reason
for them. When we find that in large and important branches of
the law the various grounds of policy on which the various rules
have been justified are later inventions to account for what are
in fact survivals from more primitive times, we have a right to
reconsider the popular reasons, and, taking a broader view of the
field, to decide anew whether those reasons are satisfactory.
They may be, notwithstanding the manner of their appearance. If
truth were not often suggested by error, if old implements could
not be adjusted to new uses, human progress would be slow. But
scrutiny and revision are justified.

But none of the foregoing considerations, nor the purpose of
showing the materials for anthropology contained in the history
of the law, are the immediate object here. My aim and purpose
have been to show that the various forms of liability known to
modern law spring from the common ground of revenge. In the
sphere of contract the fact will hardly be material outside the
cases which have been stated in this Lecture. But in the criminal
law and the law of torts it is of the first importance. It shows
that they have started from a moral basis, from the thought that
some one was to blame.

[38] It remains to be proved that, while the terminology of
morals is still retained, and while the law does still and
always, in a certain sense, measure legal liability by moral
standards, it nevertheless, by the very necessity of its nature,
is continually transmuting those moral standards into external or
objective ones, from which the actual guilt of the party
concerned is wholly eliminated.


[39]




LECTURE II. -- THE CRIMINAL LAW.

In the beginning of the first Lecture it was shown that the
appeals of the early law were directed only to intentional
wrongs. The appeal was a far older form of procedure than the
indictment, and may be said to have had a criminal as well as a
civil aspect. It had the double object of satisfying the private
party for his loss, and the king for the breach of his peace. On
its civil side it was rooted in vengeance. It was a proceeding to
recover those compositions, at first optional, afterwards
compulsory, by which a wrong-doer bought the spear from his side.
Whether, so far as concerned the king, it had the same object of
vengeance, or was more particularly directed to revenue, does not
matter, since the claim of the king did not enlarge the scope of
the action.

It would seem to be a fair inference that indictable offences
were originally limited in the same way as those which gave rise
to an appeal. For whether the indictment arose by a splitting up
of the appeal, or in some other way, the two were closely
connected.

An acquittal of the appellee on the merits was a bar to an
indictment; and, on the other hand, when an appeal was fairly
started, although the appellor might fail to prosecute, or might
be defeated by plea, the cause might still be proceeded with on
behalf of the king. /1/

[40] The presentment, which is the other parent of our criminal
procedure, had an origin distinct from the appeal. If, as has
been thought, it was merely the successor of fresh suit and lynch
law, /1/ this also is the child of vengeance, even more clearly
than the other.

The desire for vengeance imports an opinion that its object is
actually and personally to blame. It takes an internal standard,
not an objective or external one, and condemns its victim by
that. The question is whether such a standard is still accepted
either in this primitive form, or in some more refined
development, as is commonly supposed, and as seems not
impossible, considering the relative slowness with which the
criminal law has improved.

It certainly may be argued, with some force, that it has never
ceased to be one object of punishment to satisfy the desire for
vengeance. The argument will be made plain by considering those
instances in which, for one reason or another, compensation for a
wrong is out of the question.

Thus an act may be of such a kind as to make indemnity impossible
by putting an end to the principal sufferer, as in the case of
murder or manslaughter.

Again, these and other crimes, like forgery, although directed
against an individual, tend to make others feel unsafe, and this
general insecurity does not admit of being paid for.

Again, there are cases where there are no means of enforcing
indemnity. In Macaulay's draft of the Indian Penal Code, breaches
of contract for the carriage of passengers, were made criminal.
The palanquin-bearers of India were too poor to pay damages, and
yet had to be [41] trusted to carry unprotected women and
children through wild and desolate tracts, where their desertion
would have placed those under their charge in great danger.

In all these cases punishment remains as an alternative. A pain
can be inflicted upon the wrong-doer, of a sort which does not
restore the injured party to his former situation, or to another
equally good, but which is inflicted for the very purpose of
causing pain. And so far as this punishment takes the place of
compensation, whether on account of the death of the person to
whom the wrong was done, the indefinite number of persons
affected, the impossibility of estimating the worth of the
suffering in money, or the poverty of the criminal, it may be
said that one of its objects is to gratify the desire for
vengeance. The prisoner pays with his body.

The statement may be made stronger still, and it may be said, not
only that the law does, but that it ought to, make the
gratification of revenge an object. This is the opinion, at any
rate, of two authorities so great, and so opposed in other views,
as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says,
"The criminal law stands to the passion of revenge in much the
same relation as marriage to the sexual appetite." /2/

The first requirement of a sound body of law is, that it should
correspond with the actual feelings and demands of the community,
whether right or wrong. If people would gratify the passion of
revenge outside of the law, if the law did not help them, the law
has no choice but to satisfy the craving itself, and thus avoid
the greater evil of private [42] retribution. At the same time,
this passion is not one which we encourage, either as private
individuals or as lawmakers. Moreover, it does not cover the
whole ground. There are crimes which do not excite it, and we
should naturally expect that the most important purposes of
punishment would be coextensive with the whole field of its
application. It remains to be discovered whether such a general
purpose exists, and if so what it is. Different theories still
divide opinion upon the subject.

It has been thought that the purpose of punishment is to reform
the criminal; that it is to deter the criminal and others from
committing similar crimes; and that it is retribution. Few would
now maintain that the first of these purposes was the only one.
If it were, every prisoner should be released as soon as it
appears clear that he will never repeat his offence, and if he is
incurable he should not be punished at all. Of course it would be
hard to reconcile the punishment of death with this doctrine.

The main struggle lies between the other two. On the one side is
the notion that there is a mystic bond between wrong and
punishment; on the other, that the infliction of pain is only a
means to an end. Hegel, one of the great expounders of the former
view, puts it, in his quasi mathematical form, that, wrong being
the negation of right, punishment is the negation of that
negation, or retribution. Thus the punishment must be equal, in
the sense of proportionate to the crime, because its only
function is to destroy it. Others, without this logical
apparatus, are content to rely upon a felt necessity that
suffering should follow wrong-doing.

It is objected that the preventive theory is immoral, because it
overlooks the ill-desert of wrong-doing, and furnishes [43] no
measure of the amount of punishment, except the lawgiver's
subjective opinion in regard to the sufficiency of the amount of
preventive suffering. /1/ In the language of Kant, it treats man
as a thing, not as a person; as a means, not as an end in
himself. It is said to conflict with the sense of justice, and to
violate the fundamental principle of all free communities, that
the members of such communities have equal rights to life,
liberty, and personal security. /2/

In spite of all this, probably most English-speaking lawyers
would accept the preventive theory without hesitation. As to the
violation of equal rights which is charged, it may be replied
that the dogma of equality makes an equation between individuals
only, not between an individual and the community. No society has
ever admitted that it could not sacrifice individual welfare to
its own existence. If conscripts are necessary for its army, it
seizes them, and marches them, with bayonets in their rear, to
death. It runs highways and railroads through old family places
in spite of the owner's protest, paying in this instance the
market value, to be sure, because no civilized government
sacrifices the citizen more than it can help, but still
sacrificing his will and his welfare to that of the rest. /3/

If it were necessary to trench further upon the field of morals,
it might be suggested that the dogma of equality applied even to
individuals only within the limits of ordinary dealings in the
common run of affairs. You cannot argue with your neighbor,
except on the admission for the [44] moment that he is as wise as
you, although you may by no means believe it. In the same way,
you cannot deal with him, where both are free to choose, except
on the footing of equal treatment, and the same rules for both.
The ever-growing value set upon peace and the social relations
tends to give the law of social being the appearance of the law
of all being. But it seems to me clear that the ultima ratio, not
only regum, but of private persons, is force, and that at the
bottom of all private relations, however tempered by sympathy and
all the social feelings, is a justifiable self-preference. If a
man is on a plank in the deep sea which will only float one, and
a stranger lays hold of it, he will thrust him off if he can.
When the state finds itself in a similar position, it does the
same thing.

The considerations which answer the argument of equal rights also
answer the objections to treating man as a thing, and the like.
If a man lives in society, he is liable to find himself so
treated. The degree of civilization which a people has reached,
no doubt, is marked by their anxiety to do as they would be done
by. It may be the destiny of man that the social instincts shall
grow to control his actions absolutely, even in anti-social
situations. But they have not yet done so, and as the rules of
law are or should be based upon a morality which is generally
accepted, no rule founded on a theory of absolute unselfishness
can be laid down without a breach between law and working
beliefs.

If it be true, as I shall presently try to show, that the general
principles of criminal and civil liability are the same, it will
follow from that alone that theory and fact agree in frequently
punishing those who have been guilty [45] of no moral wrong, and
who could not be condemned by any standard that did not avowedly
disregard the personal peculiarities of the individuals
concerned. If punishment stood on the moral grounds which are
proposed for it, the first thing to be considered would be those
limitations in the capacity for choosing rightly which arise from
abnormal instincts, want of education, lack of intelligence, and
all the other defects which are most marked in the criminal
classes. I do not say that they should not be, or at least I do
not need to for my argument. I do not say that the criminal law
does more good than harm. I only say that it is not enacted or
administered on that theory.

There remains to be mentioned the affirmative argument in favor
of the theory of retribution, to the effect that the fitness of
punishment following wrong-doing is axiomatic, and is
instinctively recognized by unperverted minds. I think that it
will be seen, on self-inspection, that this feeling of fitness is
absolute and unconditional only in the case of our neighbors. It
does not seem to me that any one who has satisfied himself that
an act of his was wrong, and that he will never do it again,
would feel the least need or propriety, as between himself and an
earthly punishing power alone, of his being made to suffer for
what he had done, although, when third persons were introduced,
he might, as a philosopher, admit the necessity of hurting him to
frighten others. But when our neighbors do wrong, we sometimes
feel the fitness of making them smart for it, whether they have
repented or not. The feeling of fitness seems to me to be only
vengeance in disguise, and I have already admitted that vengeance
was an element, though not the chief element, of punishment.

[46] But, again, the supposed intuition of fitness does not seem
to me to be coextensive with the thing to be accounted for. The
lesser punishments are just as fit for the lesser crimes as the
greater for the greater. The demand that crime should be followed
by its punishment should therefore be equal and absolute in both.
Again, a malum prohibitum is just as much a crime as a malum in
se. If there is any general ground for punishment, it must apply
to one case as much as to the other. But it will hardly be said
that, if the wrong in the case just supposed consisted of a
breach of the revenue laws, and the government had been
indemnified for the loss, we should feel any internal necessity
that a man who had thoroughly repented of his wrong should be
punished for it, except on the ground that his act was known to
others. If it was known, the law would have to verify its threats
in order that others might believe and tremble. But if the fact
was a secret between the sovereign and the subject, the
sovereign, if wholly free from passion, would undoubtedly see
that punishment in such a case was wholly without justification.

On the other hand, there can be no case in which the law-maker
makes certain conduct criminal without his thereby showing a wish
and purpose to prevent that conduct. Prevention would accordingly
seem to be the chief and only universal purpose of punishment.
The law threatens certain pains if you do certain things,
intending thereby to give you a new motive for not doing them. If
you persist in doing them, it has to inflict the pains in order
that its threats may continue to be believed.

If this is a true account of the law as it stands, the law does
undoubtedly treat the individual as a means to an [47] end, and
uses him as a tool to increase the general welfare at his own
expense. It has been suggested above, that this course is
perfectly proper; but even if it is wrong, our criminal law
follows it, and the theory of our criminal law must be shaped
accordingly.

Further evidence that our law exceeds the limits of retribution,
and subordinates consideration of the individual to that of the
public well-being, will be found in some doctrines which cannot
be satisfactorily explained on any other ground.

The first of these is, that even the deliberate taking of life
will not be punished when it is the only way of saving one's own.
This principle is not so clearly established as that next to be
mentioned; but it has the support of very great authority. /1/ If
that is the law, it must go on one of two grounds, either that
self-preference is proper in the case supposed, or that, even if
it is improper, the law cannot prevent it by punishment, because
a threat of death at some future time can never be a sufficiently
powerful motive to make a man choose death now in order to avoid
the threat. If the former ground is adopted, it admits that a
single person may sacrifice another to himself, and a fortiori
that a people may. If the latter view is taken, by abandoning
punishment when it can no longer be expected to prevent an act,
the law abandons the retributive and adopts the preventive
theory.

The next doctrine leads to still clearer conclusions. Ignorance
of the law is no excuse for breaking it. This substantive
principle is sometimes put in the form of a rule of evidence,
that every one is presumed to know the [48] law. It has
accordingly been defended by Austin and others, on the ground of
difficulty of proof. If justice requires the fact to be
ascertained, the difficulty of doing so is no ground for refusing
to try. But every one must feel that ignorance of the law could
never be admitted as an excuse, even if the fact could be proved
by sight and hearing in every case. Furthermore, now that parties
can testify, it may be doubted whether a man's knowledge of the
law is any harder to investigate than many questions which are
gone into. The difficulty, such as it is, would be met by
throwing the burden of proving ignorance on the lawbreaker.

The principle cannot be explained by saying that we are not only
commanded to abstain from certain acts, but also to find out that
we are commanded. For if there were such a second command, it is
very clear that the guilt of failing to obey it would bear no
proportion to that of disobeying the principal command if known,
yet the failure to know would receive the same punishment as the
failure to obey the principal law.

The true explanation of the rule is the same as that which
accounts for the law's indifference to a man's particular
temperament, faculties, and so forth. Public policy sacrifices
the individual to the general good. It is desirable that the
burden of all should be equal, but it is still more desirable to
put an end to robbery and murder. It is no doubt true that there
are many cases in which the criminal could not have known that he
was breaking the law, but to admit the excuse at all would be to
encourage ignorance where the law-maker has determined to make
men know and obey, and justice to the individual is rightly
outweighed by the larger interests on the other side of the
scales.

[49] If the foregoing arguments are sound, it is already manifest
that liability to punishment cannot be finally and absolutely
determined by considering the actual personal unworthiness of the
criminal alone. That consideration will govern only so far as the
public welfare permits or demands. And if we take into account
the general result which the criminal law is intended to bring
about, we shall see that the actual state of mind accompanying a
criminal act plays a different part from what is commonly
supposed.

For the most part, the purpose of the criminal law is only to
induce external conformity to rule. All law is directed to
conditions of things manifest to the senses. And whether it
brings those conditions to pass immediately by the use of force,
as when it protects a house from a mob by soldiers, or
appropriates private property to public use, or hangs a man in
pursuance of a judicial sentence, or whether it brings them about
mediately through men's fears, its object is equally an external
result. In directing itself against robbery or murder, for
instance, its purpose is to put a stop to the actual physical
taking and keeping of other men's goods, or the actual poisoning,
shooting, stabbing, and otherwise putting to death of other men.
If those things are not done, the law forbidding them is equally
satisfied, whatever the motive.

Considering this purely external purpose of the law together with
the fact that it is ready to sacrifice the individual so far as
necessary in order to accomplish that purpose, we can see more
readily than before that the actual degree of personal guilt
involved in any particular transgression cannot be the only
element, if it is an element at all, in the liability incurred.
So far from its [50] being true, as is often assumed, that the
condition of a man's heart or conscience ought to be more
considered in determining criminal than civil liability, it might
almost be said that it is the very opposite of truth. For civil
liability, in its immediate working, is simply a redistribution
of an existing loss between two individuals; and it will be
argued in the next Lecture that sound policy lets losses lie
where they fall, except where a special reason can be shown for
interference. The most frequent of such reasons is, that the
party who is charged has been to blame.

It is not intended to deny that criminal liability, as well as
civil, is founded on blameworthiness. Such a denial would shock
the moral sense of any civilized community; or, to put it another
way, a law which punished conduct which would not be blameworthy
in the average member of the community would be too severe for
that community to bear. It is only intended to point out that,
when we are dealing with that part of the law which aims more
directly than any other at establishing standards of conduct, we
should expect there more than elsewhere to find that the tests of
liability are external, and independent of the degree of evil in
the particular person's motives or intentions. The conclusion
follows directly from the nature of the standards to which
conformity is required. These are not only external, as was shown
above, but they are of general application. They do not merely
require that every man should get as near as he can to the best
conduct possible for him. They require him at his own peril to
come up to a certain height. They take no account of
incapacities, unless the weakness is so marked as to fall into
well-known exceptions, such as infancy or madness. [51] They
assume that every man is as able as every other to behave as they
command. If they fall on any one class harder than on another, it
is on the weakest. For it is precisely to those who are most
likely to err by temperament, ignorance, or folly, that the
threats of the law are the most dangerous.

The reconciliation of the doctrine that liability is founded on
blameworthiness with the existence of liability where the party
is not to blame, will be worked out more fully in the next
Lecture. It is found in the conception of the average man, the
man of ordinary intelligence and reasonable prudence. Liability
is said to arise out of such conduct as would be blameworthy in
him. But he is an ideal being, represented by the jury when they
are appealed to, and his conduct is an external or objective
standard when applied to any given individual. That individual
may be morally without stain, because he has less than ordinary
intelligence or prudence. But he is required to have those
qualities at his peril. If he has them, he will not, as a general
rule, incur liability without blameworthiness.

The next step is to take up some crimes in detail, and to
discover what analysis will teach with regard to them.

I will begin with murder. Murder is defined by Sir James Stephen,
in his Digest of Criminal Law, /1/ as unlawful homicide with
malice aforethought. In his earlier work, /2/ he explained that
malice meant wickedness, and that the law had determined what
states of mind were wicked in the necessary degree. Without the
same preliminary he continues in his Digest as follows:--

[52] "Malice aforethought means any one or more of the following
states of mind..... "(a.) An intention to cause the death of, or
grievous bodily harm to, any person, whether such person is the
person actually killed or not; "(b.) Knowledge that the act which
causes death will probably cause the death of, or grievous bodily
harm to, some person, whether such person is the person actually
killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or
not, or by a wish that it may not be caused; "(c.) An intent to
commit any felony whatever; "(d.) An intent to oppose by force
any officer of justice on his way to, in, or returning from the
execution of the duty of arresting, keeping in custody, or
imprisoning any person whom he is lawfully entitled to arrest,
keep in custody, or imprison, or the duty of keeping the peace or
dispersing an unlawful assembly, provided that the offender has
notice that the person killed is such an officer so employed."

Malice, as used in common speech, includes intent, and something
more. When an act is said to be done with an intent to do harm,
it is meant that a wish for the harm is the motive of the act.
Intent, however, is perfectly consistent with the harm being
regretted as such, and being wished only as a means to something
else. But when an act is said to be done maliciously, it is
meant, not only that a wish for the harmful effect is the motive,
but also that the harm is wished for its own sake, or, as Austin
would say with more accuracy, for the sake of the pleasurable
feeling which knowledge of the suffering caused by the act would
excite. Now it is apparent from Sir James [53] Stephen's
enumeration, that of these two elements of malice the intent
alone is material to murder. It is just as much murder to shoot a
sentry for the purpose of releasing a friend, as to shoot him
because you hate him. Malice, in the definition of murder, has
not the same meaning as in common speech, and, in view of the
considerations just mentioned, it has been thought to mean
criminal intention. /1/

But intent again will be found to resolve itself into two things;
foresight that certain consequences will follow from an act, and
the wish for those consequences working as a motive which induces
the act. The question then is, whether intent, in its turn,
cannot be reduced to a lower term. Sir James Stephen's statement
shows that it can be, and that knowledge that the act will
probably cause death, that is, foresight of the consequences of
the act, is enough in murder as in tort.

For instance, a newly born child is laid naked out of doors,
where it must perish as a matter of course. This is none the less
murder, that the guilty party would have been very glad to have a
stranger find the child and save it. /2/

But again, What is foresight of consequences? It is a picture of
a future state of things called up by knowledge of the present
state of things, the future being viewed as standing to the
present in the relation of effect to cause. Again, we must seek a
reduction to lower terms. If the known present state of things is
such that the act done will very certainly cause death, and the
probability is a matter of common knowledge, one who does the
act, [54] knowing the present state of things, is guilty of
murder, and the law will not inquire whether he did actually
foresee the consequences or not. The test of foresight is not
what this very criminal foresaw, but what a man of reasonable
prudence would have foreseen.

On the other hand, there must be actual present knowledge of the
present facts which make an act dangerous. The act is not enough
by itself. An act, it is true, imports intention in a certain
sense. It is a muscular contraction, and something more. A spasm
is not an act. The contraction of the muscles must be willed. And
as an adult who is master of himself foresees with mysterious
accuracy the outward adjustment which will follow his inward
effort, that adjustment may be said to be intended. But the
intent necessarily accompanying the act ends there. Nothing would
follow from the act except for the environment. All acts, taken
apart from their surrounding circumstances, are indifferent to
the law. For instance, to crook the forefinger with a certain
force is the same act whether the trigger of a pistol is next to
it or not. It is only the surrounding circumstances of a pistol
loaded and cocked, and of a human being in such relation to it,
as to be manifestly likely to be hit, that make the act a wrong.
Hence, it is no sufficient foundation for liability, on any sound
principle, that the proximate cause of loss was an act.

The reason for requiring an act is, that an act implies a choice,
and that it is felt to be impolitic and unjust to make a man
answerable for harm, unless he might have chosen otherwise. But
the choice must be made with a chance of contemplating the
consequence complained of, or else it has no bearing on
responsibility for that consequence. [55] If this were not true,
a man might be held answerable for everything which would not
have happened but for his choice at some past time. For instance,
for having in a fit fallen on a man, which he would not have done
had he not chosen to come to the city where he was taken ill.

All foresight of the future, all choice with regard to any
possible consequence of action, depends on what is known at the
moment of choosing. An act cannot be wrong, even when done under
circumstances in which it will be hurtful, unless those
circumstances are or ought to be known. A fear of punishment for
causing harm cannot work as a motive, unless the possibility of
harm may be foreseen. So far, then, as criminal liability is
founded upon wrong-doing in any sense, and so far as the threats
and punishments of the law are intended to deter men from
bringing about various harmful results, they must be confined to
cases where circumstances making the conduct dangerous were
known.

Still, in a more limited way, the same principle applies to
knowledge that applies to foresight. It is enough that such
circumstances were actually known as would have led a man of
common understanding to infer from them the rest of the group
making up the present state of things. For instance, if a workman
on a house-top at mid-day knows that the space below him is a
street in a great city, he knows facts from which a man of common
understanding would infer that there were people passing below.
He is therefore bound to draw that inference, or, in other words,
is chargeable with knowledge of that fact also, whether he draws
the inference or not. If then, he throws down a heavy beam into
the street, he does an act [56] which a person of ordinary
prudence would foresee is likely to cause death, or grievous
bodily harm, and he is dealt with as if he foresaw it, whether he
does so in fact or not. If a death is caused by the act, he is
guilty of murder. /1/ But if the workman has reasonable cause to
believe that the space below is a private yard from which every
one is excluded, and which is used as a rubbish heap, his act is
not blameworthy, and the homicide is a mere misadventure.

To make an act which causes death murder, then, the actor ought,
on principle, to know, or have notice of the facts which make the
act dangerous. There are certain exceptions to this principle
which will be stated presently, but they have less application to
murder than to some smaller statutory crimes. The general rule
prevails for the most part in murder.

But furthermore, on the same principle, the danger which in fact
exists under the known circumstances ought to be of a class which
a man of reasonable prudence could foresee. Ignorance of a fact
and inability to foresee a consequence have the same effect on
blameworthiness. If a consequence cannot be foreseen, it cannot
be avoided. But there is this practical difference, that whereas,
in most cases, the question of knowledge is a question of the
actual condition of the defendant's consciousness, the question
of what he might have foreseen is determined by the standard of
the prudent man, that is, by general experience. For it is to be
remembered that the object of the law is to prevent human life
being endangered or taken; and that, although it so far considers
blameworthiness in punishing as not to hold a man responsible for
consequences which [57] no one, or only some exceptional
specialist, could have foreseen, still the reason for this
limitation is simply to make a rule which is not too hard for the
average member of the community. As the purpose is to compel men
to abstain from dangerous conduct, and not merely to restrain
them from evil inclinations, the law requires them at their peril
to know the teachings of common experience, just as it requires
them to know the law. Subject to these explanations, it may be
said that the test of murder is the degree of danger to life
attending the act under the known circumstances of the case. /1/

It needs no further explanation to show that, when the particular
defendant does for any reason foresee what an ordinary man of
reasonable prudence would not have foreseen, the ground of
exemption no longer applies. A harmful act is only excused on the
ground that the party neither did foresee, nor could with proper
care have foreseen harm.

It would seem, at first sight, that the above analysis ought to
exhaust the whole subject of murder. But it does not without some
further explanation. If a man forcibly resists an officer
lawfully making an arrest, and kills him, knowing him to be an
officer, it may be murder, although no act is done which, but for
his official function, would be criminal at all. So, if a man
does an act with intent to commit a felony, and thereby
accidentally kills another; for instance, if he fires at
chickens, intending to steal them, and accidentally kills the
owner, whom he does not see. Such a case as this last seems
hardly to be reconcilable with the general principles which have
been laid down. It has been argued somewhat as [58] follows:--The
only blameworthy act is firing at the chickens, knowing them to
belong to another. It is neither more nor less so because an
accident happens afterwards; and hitting a man, whose presence
could not have been suspected, is an accident. The fact that the
shooting is felonious does not make it any more likely to kill
people. If the object of the rule is to prevent such accidents,
it should make accidental killing with firearms murder, not
accidental killing in the effort to steal; while, if its object
is to prevent stealing, it would do better to hang one thief in
every thousand by lot.

Still, the law is intelligible as it stands. The general test of
murder is the degree of danger attending the acts under the known
state of facts. If certain acts are regarded as peculiarly
dangerous under certain circumstances, a legislator may make them
punishable if done under these circumstances, although the danger
was not generally known. The law often takes this step, although
it does not nowadays often inflict death in such cases. It
sometimes goes even further, and requires a man to find out
present facts, as well as to foresee future harm, at his peril,
although they are not such as would necessarily be inferred from
the facts known.

Thus it is a statutory offence in England to abduct a girl under
sixteen from the possession of the person having lawful charge of
her. If a man does acts which induce a girl under sixteen to
leave her parents, he is not chargeable, if he had no reason to
know that she was under the lawful charge of her parents, /1/ and
it may be presumed that he would not be, if he had reasonable
cause to believe that she was a boy. But if he knowingly abducts
a girl from [59] her parents, he must find out her age at his
peril. It is no defence that he had every reason to think her
over sixteen. /1/ So, under a prohibitory liquor law, it has been
held that, if a man sells "Plantation Bitters," it is no defence
that he does not know them to be intoxicating. /2/ And there are
other examples of the same kind.

Now, if experience shows, or is deemed by the law-maker to show,
that somehow or other deaths which the evidence makes accidental
happen disproportionately often in connection with other
felonies, or with resistance to officers, or if on any other
ground of policy it is deemed desirable to make special efforts
for the prevention of such deaths, the lawmaker may consistently
treat acts which, under the known circumstances, are felonious,
or constitute resistance to officers, as having a sufficiently
dangerous tendency to be put under a special ban. The law may,
therefore, throw on the actor the peril, not only of the
consequences foreseen by him, but also of consequences which,
although not predicted by common experience, the legislator
apprehends. I do not, however, mean to argue that the rules under
discussion arose on the above reasoning, any more than that they
are right, or would be generally applied in this country.

Returning to the main line of thought it will be instructive to
consider the relation of manslaughter to murder. One great
difference between the two will be found to lie in the degree of
danger attaching to the act in the given state of facts. If a man
strikes another with a small stick which is not likely to kill,
and which he has no reason to suppose will do more than slight
bodily harm, but which [60] does kill the other, he commits
manslaughter, not murder. /1/ But if the blow is struck as hard
as possible with an iron bar an inch thick, it is murder. /2/ So
if, at the time of striking with a switch, the party knows an
additional fact, by reason of which he foresees that death will
be the consequence of a slight blow, as, for instance, that the
other has heart disease, the offence is equally murder. /3/ To
explode a barrel of gunpowder in a crowded street, and kill
people, is murder, although the actor hopes that no such harm
will be done. /4/ But to kill a man by careless riding in the
same street would commonly be manslaughter. /5/ Perhaps, however,
a case could be put where the riding was so manifestly dangerous
that it would be murder.

To recur to an example which has been used already for another
purpose: "When a workman flings down a stone or piece of timber
into the street, and kills a man; this may be either
misadventure, manslaughter, or murder, according to the
circumstances under which the original act was done: if it were
in a country village, where few passengers are, and he calls out
to all people to have a care, it is misadventure only; but if it
were in London, or other populous town, where people are
continually passing, it is manslaughter, though he gives loud
warning; and murder, if he knows of their passing, and gives no
warning at all." /6/

The law of manslaughter contains another doctrine [61] which
should be referred to in order to complete the understanding of
the general principles of the criminal law. This doctrine is,
that provocation may reduce an offence which would otherwise have
been murder to manslaughter. According to current morality, a man
is not so much to blame for an act done under the disturbance of
great excitement, caused by a wrong done to himself, as when he
is calm. The law is made to govern men through their motives, and
it must, therefore, take their mental constitution into account.

It might be urged, on the other side, that, if the object of
punishment is prevention, the heaviest punishment should be
threatened where the strongest motive is needed to restrain; and
primitive legislation seems sometimes to have gone on that
principle. But if any threat will restrain a man in a passion, a
threat of less than death will be sufficient, and therefore the
extreme penalty has been thought excessive.

At the same time the objective nature of legal standards is shown
even here. The mitigation does not come from the fact that the
defendant was beside himself with rage. It is not enough that he
had grounds which would have had the same effect on every man of
his standing and education. The most insulting words are not
provocation, although to this day, and still more when the law
was established, many people would rather die than suffer them
without action. There must be provocation sufficient to justify
the passion, and the law decides on general considerations what
provocations are sufficient.

It is said that even what the law admits to be "provocation does
not extenuate the guilt of homicide, unless the person provoked
is at the time when he does the deed [62] deprived of the power
of self-control by the provocation which he has received." /1/
There are obvious reasons for taking the actual state of the
defendant's consciousness into account to this extent. The only
ground for not applying the general rule is, that the defendant
was in such a state that he could not be expected to remember or
be influenced by the fear of punishment; if he could be, the
ground of exception disappears. Yet even here, rightly or
wrongly, the law has gone far in the direction of adopting
external tests. The courts seem to have decided between murder
and manslaughter on such grounds as the nature of the weapon
used, /2/ or the length of time between the provocation and the
act. /3/ But in other cases the question whether the prisoner was
deprived of self-control by passion has been left to the jury.
/4/

As the object of this Lecture is not to give an outline of the
criminal law, but to explain its general theory, I shall only
consider such offences as throw some special light upon the
subject, and shall treat of those in such order as seems best
fitted for that purpose. It will now be useful to take up
malicious mischief, and to compare the malice required to
constitute that offence with the malice aforethought of murder.

The charge of malice aforethought in an indictment for murder has
been shown not to mean a state of the defendant's mind, as is
often thought, except in the sense that he knew circumstances
which did in fact make his conduct dangerous. It is, in truth, an
allegation like that of negligence, which asserts that the party
accused did not [63] come up to the legal standard of action
under the circumstances in which he found himself, and also that
there was no exceptional fact or excuse present which took the
case out of the general rule. It is an averment of a conclusion
of law which is permitted to abridge the facts (positive and
negative) on which it is founded.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


[77]




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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
otherwise.

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
intentionally.

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
dilemma.

[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 instance, 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 

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