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 the inference shall be drawn. /1/ But it is believed that the courts, when they lay down this broad proposition, are thinking of cases where the conduct to be passed upon is not proved directly, and the main or only question is what that conduct was, not what standard shall be applied to it after it is established.

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

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

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

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

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

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

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

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

Take again the law of ancient lights in England. An obstruction to be actionable must be substantial. Under ordinary circumstances the erection of a structure a hundred yards off, and one foot above the ground, would not be actionable. One within a foot of the window, and covering it, would be, without any finding of a jury beyond these facts. In doubtful cases midway, the question whether the interference was substantial has been left to the jury. /4/ But as the elements are few and permanent, an inclination has been shown to lay down a definite rule, that, in ordinary cases, the building complained of must not be higher than the distance of its base from the dominant windows. And although this attempt to work out an exact line requires much caution, it is entirely philosophical in spirit. /5/

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

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

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

LECTURE IV.

FRAUD, MALICE, AND INTENT.- THE THEORY OF TORTS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It will be seen that the peril of conduct here begins farther back than with deceit, as the tendency of slander is more universally harmful. There must be some concomitant circumstances. There must at least be a human being in existence whom the statement designates. There must be another human being within hearing who understands the statement, and the statement must be false. But it is arguable that the latter of these facts need not be known, as certainly the falsity of the charge need not be, and that a man must take the risk of even an idle statement being heard, unless he made it under known circumstances of privilege. It would be no great curtailment of freedom to deny a man immunity in attaching a charge of crime to the name of his neighbor, even when he supposes himself alone. But it does not seem clear that the law would go quite so far as that.

The next form of liability is comparatively insignificant. I mean the action for malicious prosecution. A man may recover damages against another for maliciously and without probable cause instituting a criminal, or, in some cases, a civil prosecution against him upon a false charge. The want of probable cause refers, of course, only to the state of the defendant's knowledge, not to his intent. It means the absence of probable cause in the facts known to the defendant when he instituted the suit. But the standard applied to the defendant's consciousness is external to it. The question is not whether he thought the [141] facts to constitute probable cause, but whether the court thinks they did.

Then as to malice. The conduct of the defendant consists in instituting proceedings on a charge which is in fact false, and which has not prevailed. That is the root of the whole matter. If the charge was true, or if the plaintiff has been convicted, even though he may be able now to prove that he was wrongly convicted, the defendant is safe, however great his malice, and however little ground he had for his charge.

Suppose, however, that the charge is false, and does not prevail. It may readily be admitted that malice did originally mean a malevolent motive, an actual intent to harm the plaintiff by making a false charge. The legal remedy here, again, started from the moral basis, the occasion for it, no doubt, being similar to that which gave rise to the old law of conspiracy, that a man's enemies would sometimes seek his destruction by setting the criminal law in motion against him. As it was punishable to combine for such a purpose, it was concluded, with some hesitation, that, when a single individual wickedly attempted the same thing, he should be liable on similar grounds. /1/ I must fully admit that there is weighty authority to the effect that malice in its ordinary sense is to this day a distinct fact to be proved and to be found by the jury.

But this view cannot be accepted without hesitation. It is admitted that, on the one side, the existence of probable cause, believed in, is a justification notwithstanding malice; /2/ that, on the other, "it is not enough to show [142] that the case appeared sufficient to this particular party, but it must be sufficient to induce a sober, sensible and discreet person to act upon it, or it must fail as a justification for the proceeding upon general grounds." /1/ On the one side, malice alone will not make a man liable for instituting a groundless prosecution; on the other, his justification will depend, not on his opinion of the facts, but on that of the court. When his actual moral condition is disregarded to this extent, it is a little hard to believe that the existence of an improper motive should be material. Yet that is what malice must mean in this case, if it means anything. /2/ For the evil effects of a successful indictment are of course intended by one who procures all other to be indicted. I cannot but think that a jury would be told that knowledge or belief that the charge was false at the time of making it was conclusive evidence of malice. And if so, on grounds which need not be repeated, malice is not the important thing, but the facts known to the defendant.

Nevertheless, as it is obviously treading on delicate ground to make it actionable to set the regular processes of the law in motion, it is, of course, entirely possible to say that the action shall be limited to those cases where the charge was preferred from improper motives, at least if the defendant thought that there was probable cause. Such a limitation would stand almost alone in the law of civil liability. But the nature of the wrong is peculiar, and, moreover, it is quite consistent with the theory of liability here advanced that it should be confined in any given instance to actual wrong-doing in a moral sense.

The only other cause of action in which the moral condition [143] of the defendant's consciousness might seem to be important is conspiracy. The old action going by that name was much like malicious prosecution, and no doubt was originally confined to cases where several persons had conspired to indict another from malevolent motives. But in the modern action on the case, where conspiracy is charged, the allegation as a rule only means that two or more persons were so far co-operating in their acts that the act of any one was the act of all. Generally speaking, the liability depends not on the co-operation or conspiring, but on the character of the acts done, supposing them all to be done by one man, or irrespective of the question whether they were done by one or several. There may be cases, to be sure, in which the result could not be accomplished, or the offence could not ordinarily be proved, without a combination of several; as, for instance, the removal of a teacher by a school board. The conspiracy would not affect the case except in a practical way, but the question would be raised whether, notwithstanding the right of the board to remove, proof that they were actuated by malevolence would not make a removal actionable. Policy, it might be said, forbids going behind their judgment, but actual evil motives coupled with the absence of grounds withdraw this protection, because policy, although it does not require them to take the risk of being right, does require that they should judge honestly on the merits. /1/

Other isolated instances like the last might, perhaps, be found in different parts of the law, in which actual malevolence would affect a man's liability for his conduct. Again, in trover for the conversion of another's chattel, where the dominion exercised over it was of a slight and ambiguous [144] nature, it has been said that the taking must be "with the intent of exercising an ownership over the chattel inconsistent with the real owner's right of possession." /1/ But this seems to be no more than a faint shadow of the doctrine explained with regard to larceny, and does not require any further or special discussion. Trover is commonly understood to go, like larceny, on the plaintiff's being deprived of his property, although in practice every possessor has the action, and, generally speaking, the shortest wrongful withholding of possession is a conversion.

Be the exceptions more or less numerous, the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms. The true explanation of the reference of liability to a moral standard, in the sense which has been explained, is not that it is for the purpose of improving men's hearts, but that it is to give a man a fair chance to avoid doing the harm before he is held responsible for it. It is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury.

But the law does not even seek to indemnify a man from all harms. An unrestricted enjoyment of all his possibilities would interfere with other equally important enjoyments on the part of his neighbors. There are certain things which the law allows a man to do, notwithstanding the fact that he foresees that harm to another will follow from them. He may charge a man with crime if the charge is true. He may establish himself in business where he foresees that [145] of his competition will be to diminish the custom of another shopkeeper, perhaps to ruin him. He may a building which cuts another off from a beautiful prospect, or he may drain subterranean waters and thereby drain another's well; and many other cases might be put.

As any of these things may be done with foresight of their evil consequences, it would seem that they might be done with intent, and even with malevolent intent, to produce them. The whole argument of this Lecture and the preceding tends to this conclusion. If the aim of liability is simply to prevent or indemnify from harm so far as is consistent with avoiding the extreme of making a man answer for accident, when the law permits the harm to be knowingly inflicted it would be a strong thing if the presence of malice made any difference in its decisions. That might happen, to be sure, without affecting the general views maintained here, but it is not to be expected, and the weight of authority is against it.

As the law, on the one hand, allows certain harms to be inflicted irrespective of the moral condition of him who inflicts them, so, at the other extreme, it may on grounds of policy throw the absolute risk of certain transactions on the person engaging in them, irrespective of blameworthiness in any sense. Instances of this sort have been mentioned in the last Lecture, /1/ and will be referred to again.

Most liabilities in tort lie between these two extremes, and are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions which were its proximate cause. Rut as fast as specific rules are worked out in place of the [146] vague reference to the conduct of the average man, they range themselves alongside of other specific rules based on public policy, and the grounds from which they spring cease to be manifest. So that, as will be seen directly, rules which seem to lie outside of culpability in any sense have sometimes been referred to remote fault, while others which started from the general notion of negligence may with equal ease be referred to some extrinsic ground of policy.

Apart from the extremes just mentioned, it is now easy to see how the point at which a man's conduct begins to be at his own peril is generally fixed. When the principle is understood on which that point is determined by the law of torts, we possess a common ground of classification, and a key to the whole subject, so far as tradition has not swerved the law from a consistent theory. It has been made pretty clear from what precedes, that I find that ground in knowledge of circumstances accompanying an act or conduct indifferent but for those circumstances.

But it is worth remarking, before that criterion is discussed, that a possible common ground is reached at the preceding step in the descent from malice through intent and foresight. Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence. The purpose of the law is to prevent or secure a man indemnity from harm at the hands of his neighbors, so far as consistent with other considerations which have been mentioned, and excepting, of course, such harm as it permits to be intentionally inflicted. When a man foresees that harm will result from his conduct, the principle which exonerates him from accident no longer applies, and he is liable. But, as has been shown, he is bound to foresee [147] whatever a prudent and intelligent man would have foreseen, and therefore he is liable for conduct from which such a man would have foreseen that harm was liable to follow.

Accordingly, it would be possible to state all cases of negligence in terms of imputed or presumed foresight. It would be possible even to press the presumption further, applying the very inaccurate maxim, that every man is presumed to intend the natural consequences of his own acts; and this mode of expression will, in fact, be found to have been occasionally used, /1/ more especially in the criminal law, where the notion of intent has a stronger foothold. /2/ The latter fiction is more remote and less philosophical than the former; but, after all, both are equally fictions. Negligence is not foresight, but precisely the want of it; and if foresight were presumed, the ground of the presumption, and therefore the essential element, would be the knowledge of facts which made foresight possible.

Taking knowledge, then, as the true starting-point, the next question is how to determine the circumstances necessary to be known in any given case in order to make a man liable for the consequences of his act. They must be such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm. But this is a vague test. How is it decided what those circumstances are? The answer must be, by experience.

But there is one point which has been left ambiguous in the preceding Lecture and here, and which must be touched upon. It has been assumed that conduct which [148] the man of ordinary intelligence would perceive to be dangerous under the circumstances, would be blameworthy if pursued by him. It might not be so, however. Suppose that, acting under the threats of twelve armed men, which put him in fear of his life, a man enters another's close and takes a horse. In such a case, he actually contemplates and chooses harm to another as the consequence of his act. Yet the act is neither blameworthy nor punishable. But it might be actionable, and Rolle, C. J. ruled that it was so in Gilbert v. Stone. /1/ If this be law, it goes the full length of deciding that it is enough if the defendant has had a chance to avoid inflicting the harm complained of. And it may well be argued that, although he does wisely to ransom his life as he best may, there is no reason why he should be allowed to intentionally and permanently transfer his misfortunes to the shoulders of his neighbors.

It cannot be inferred, from the mere circumstance that certain conduct is made actionable, that therefore the law regards it as wrong, or seeks to prevent it. Under our mill acts a man has to pay for flowing his neighbor's lands, in the same way that he has to pay in trover for converting his neighbor's goods. Yet the law approves and encourages the flowing of lands for the erection of mills.

Moral predilections must not be allowed to influence our minds in settling legal distinctions. If we accept the test of the liability alone, how do we distinguish between trover and the mill acts? Or between conduct which is prohibited, and that which is merely taxed? The only distinction which I can see is in the difference of the collateral consequences attached to the two classes of conduct. In the one, the maxim in pari delicto potior est [149] conditio defendentis, and the invalidity of contracts contemplating it, show that the conduct is outside the protection of the law. In the other, it is otherwise. /1/ This opinion is confirmed by the fact, that almost the only cases in which the distinction between prohibition and taxation comes up concern the application of these maxims.

But if this be true, liability to an action does not necessarily import wrong-doing. And this may be admitted without at all impairing the force of the argument in the foregoing Lecture, which only requires that people should not be made to pay for accidents which they could not have avoided.

It is doubtful, however, whether the ruling of Chief Justice Rolle would now be followed. The squib case, Scott v. Shepherd, and the language of some text-books, are more or less opposed to it. /2/ If the latter view is law, then an act must in general not only be dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable. But, aside from such exceptional cases as Gilbert v. Stone, the two tests agree, and the difference need not be considered in what follows.

I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it.

For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people. The ordinarily intelligent and prudent member of the community [150] would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded. Hence, it may very properly be held that a man who does such a thing does it at his peril, and that, if damage ensues, he is answerable for it. The co-ordinated acts necessary to point a gun and pull a trigger, and the intent and knowledge shown by the co-ordination of those acts, are all consistent with entire blamelessness. They threaten harm to no one without further facts. But the one additional circumstance of a man in the line and within range of the piece makes the conduct manifestly dangerous to any one who knows the fact. There is no longer any need to refer to the prudent man, or general experience. The facts have taught their lesson, and have generated a concrete and external rule of liability. He who snaps a cap upon a gun pointed in the direction of another person, known by him to be present, is answerable for the consequences.

The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see why the jury should be consulted with regard to them. They are, however, facts of a special and peculiar function. Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct.

Sometimes courts are induced to lay down rules by facts of a more specific nature; as that the legislature passed a certain statute, and that the case at bar is within [151] the fair meaning of its words; or that the practice of a specially interested class, or of the public at large, has generated a rule of conduct outside the law which it is desirable that the courts should recognize and enforce. These are matters of fact, and have sometimes been pleaded as such. But as their only importance is, that, if believed, they will induce the judges to lay down a rule of conduct, or in other words a rule of law, suggested by them, their tendency in most instances is to disappear as fast as the rules suggested by them become settled. /1/ While the facts are uncertain, as they are still only motives for decision upon the law,—grounds for legislation, so to speak,—the judges may ascertain them in any way which satisfies their conscience. Thus, courts recognize the statutes of the jurisdiction judicially, although the laws of other jurisdictions, with doubtful wisdom, are left to the jury. /2/ They may take judicial cognizance of a custom of merchants. /3/ In former days, at least, they might inquire about it in pais after a demurrer. /4/ They may act on the statement of a special jury, as in the time of Lord Mansfield and his successors, or upon the finding of a common jury based on the testimony of witnesses, as is the practice to-day in this country. But many instances will be found the text-books which show that, when the facts are ascertained, they soon cease to be referred to, and give place to a rule of law.

[152] The same transition is noticeable with regard to the teachings of experience. There are many cases, no doubt, in which the court would lean for aid upon a jury; but there are also many in which the teaching has been formulated in specific rules. These rules will be found to vary considerably with regard to the number of concomitant circumstances necessary to throw the peril of conduct otherwise indifferent on the actor. As the circumstances become more numerous and complex, the tendency to cut the knot with the jury becomes greater. It will be useful to follow a line of cases up from the simple to the more complicated, by way of illustration. The difficulty of distinguishing rules based on other grounds of policy from those which have been worked out in the field of negligence, will be particularly noticed.

In all these cases it will be found that there has been a voluntary act on the part of the person to be charged. The reason for this requirement was shown in the foregoing Lecture. Unnecessary though it is for the defendant to have intended or foreseen the evil which he has caused, it is necessary that he should have chosen the conduct which led to it. But it has also been shown that a voluntary act is not enough, and that even a co-ordinated series of acts or conduct is often not enough by itself. But the co-ordination of a series of acts shows a further intent than is necessarily manifested by any single act, and sometimes proves with almost equal certainty the knowledge of one or more concomitant circumstances. And there are cases where conduct with only the intent and knowledge thus necessarily implied is sufficient to throw the risk of it on the actor.

For instance, when a man does the series of acts called [153] walking, it is assumed for all purposes of responsibility that he knows the earth is under his feet. The conduct per se is indifferent, to be sure. A man may go through the motions of walking without legal peril, if he chooses to practise on a private treadmill; but if he goes through the same motions on the surface of the earth, it cannot be doubted that he knows that the earth is there. With that knowledge, he acts at his peril in certain respects. If he crosses his neighbor's boundary, he is a trespasser. The reasons for this strict rule have been partially discussed in the last Lecture. Possibly there is more of history or of past or present notions of policy its explanation than is there suggested, and at any rate I do not care to justify the rule. But it is intelligible. A man who walks knows that he is moving over the surface of the earth, he knows that he is surrounded by private estates which he has no right to enter, and he knows that his motion, unless properly guided, will carry him into those estates. He is thus warned, and the burden of his conduct is thrown upon himself.

But the act of walking does not throw the peril of all possible consequences upon him. He may run a man down in the street, but he is not liable for that unless he does it negligently. Confused as the law is with cross-lights of tradition, and hard as we may find it to arrive at perfectly satisfactory general theory, it does distinguish in a pretty sensible way, according to the nature and degree of the different perils incident to a given situation.

From the simple case of walking we may proceed to the more complex cases of dealings with tangible objects of property. It may be said that, generally speaking, a man meddles with such things at his own risk. It does not [154] matter how honestly he may believe that they belong to himself, or are free to the public, or that he has a license from the owner, or that the case is one in which the law has limited the rights of ownership; he takes the chance of how the fact may turn out, and if the fact is otherwise than as he supposes, he must answer for his conduct. As has been already suggested, he knows that he is exercising more or less dominion over property, or that he is injuring it; he must make good his right if it is challenged.

Whether this strict rule is based on the common grounds of liability, or upon some special consideration of past or present policy, policy has set some limits to it, as was mentioned in the foregoing Lecture.

Another case of conduct which is at the risk of the party without further knowledge than it necessarily imports, is the keeping of a tiger or bear, or other animal of a species commonly known to be ferocious. If such an animal escapes and does damage, the owner is liable simply on proof that he kept it. In this instance the comparative remoteness of the moment of choice in the line of causation from the effect complained of, will be particularly noticed. Ordinary cases of liability arise out of a choice which was the proximate cause of the harm upon which the action is founded. But here there is usually no question of negligence in guarding the beast. It is enough in most, if not in all cases, that the owner has chosen to keep it. Experience has shown that tigers and bears are alert to find means of escape, and that, if they escape, they are very certain to do harm of a serious nature. The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of [155] the venture on the person who introduces the peril into the community.

This remoteness of the opportunity of choice goes far to show that this risk is thrown upon the owner for other reasons than the ordinary one of imprudent conduct. It has been suggested that the liability stood upon remote inadvertence. /1/ But the law does not forbid a man to keep a menagerie, or deem it in any way blameworthy. It has applied nearly as strict a rule to dealings which are even more clearly beneficial to the community than a show of wild beasts.

This seems to be one of those cases where the ground of liability is to be sought in policy coupled with tradition, rather than in any form of blameworthiness, or the existence of such a chance to avoid doing the harm as a man is usually allowed. But the fact that remote inadvertence has been suggested for an explanation illustrates what has been said about the difficulty of deciding whether a given rule is founded on special grounds, or has been worked out within the sphere of negligence, when once a special rule has been laid down.

It is further to be noticed that there is no question of the defendant's knowledge of the nature of tigers, although without that knowledge he cannot be said to have intelligently chosen to subject the community to danger. Here again even in the domain of knowledge the law applies its principle of averages. The fact that tigers and bears are dangerous is so generally known, that a man who keeps them is presumed to know their peculiarities. In other words, he does actually know that he has an animal with certain teeth, claws, and so forth, and he must find out the [156] rest of what an average member of the community would know, at his peril.

What is true as to damages in general done by ferocious wild beasts is true as to a particular class of damages done by domestic cattle, namely, trespasses upon another's land. This has been dealt with in former Lectures, and it is therefore needless to do more than to recall it here, and to call attention to the distinction based on experience and policy between damage which is and that which is not of a kind to be expected. Cattle generally stray and damage cultivated land when they get upon it. They only exceptionally hurt human beings.

I need not recur to the possible historical connection of either of these last forms of liability with the noxoe deditio, because, whether that origin is made out or not, the policy of the rule has been accepted as sound, and carried further in England within the last few years by the doctrine that a man who brings upon his land and keeps there anything likely to do mischief if it escape, must keep it in at his peril. /1/ The strictness of this principle will vary in different jurisdictions, as the balance varies between the advantages to the public and the dangers to individuals from the conduct in question. Danger of harm to others is not the only thing to be considered, as has been said already. The law allows some harms to be intentionally inflicted, and a fortiori some risks to be intentionally run. In some Western States a man is not required to keep his cattle fenced in. Some courts have refused to follow Rylands v. Fletcher. /2/ On the other hand, the principle has been applied to artificial [157] reservoirs of water, to cesspools, to accumulations of snow and ice upon a building by reason of the form of its roof, and to party walls. /1/

In these cases, as in that of ferocious animals, it is no excuse that the defendant did not know, and could not have found out, the weak point from which the dangerous object escaped. The period of choice was further back, and, although he was not to blame, he was bound at his peril to know that the object was a continual threat to his neighbors, and that is enough to throw the risk of the business on him.

I now pass to cases one degree more complex than those so far considered. In these there must be another concomitant circumstance known to the party in addition to those of which the knowledge is necessarily or practically proved by his conduct. The cases which naturally suggest themselves again concern animals. Experience as interpreted by the English law has shown that dogs, rams, and bulls are in general of a tame and mild nature, and that, if any one of them does by chance exhibit a tendency to bite, butt, or gore, it is an exceptional phenomenon. Hence it is not the law that a man keeps dogs, rams, bulls, and other like tame animals at his peril as to the personal damages which they may inflict, unless he knows or has notice that the particular animal kept by him has the abnormal tendency which they do sometimes show. The law has, however, been brought a little nearer to actual experience by statute in many jurisdictions.

Now let us go one step farther still. A man keeps an unbroken and unruly horse, knowing it to be so. That is not enough to throw the risk of its behavior on him. The [158] tendency of the known wildness is not dangerous generally, but only under particular circumstances. Add to keeping, the attempt to break the horse; still no danger to the public is disclosed. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, according to common experience, makes this conduct dangerous, and therefore must take the risk of what harm may be done. /1/ On the other hand, if a man who was a good rider bought a horse with no appearance of vice and mounted it to ride home, there would be no such apparent danger as to make him answerable if the horse became unruly and did damage. /2/ Experience has measured the probabilities and draws the line between the two cases.

Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cases we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.

As to wrongs called malicious or intentional it is not necessary to mention the different classes a second time, and to find them a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct which is very generally at the risk of [159] the speaker, because, as charges of the kind with which it deals are manifestly detrimental, the questions which practically arise for the most part concern the defence of truth or privilege. Deceit requires more, but still simple facts. Statements do not threaten the harm in question unless they are made under such circumstances as to naturally lead to action, and are made on insufficient grounds.

It is not, however, without significance, that certain wrongs are described in language importing intent. The harm in such cases is most frequently done intentionally, if intent to cause a certain harm is shown, there need to prove knowledge of facts which made it that harm would follow. Moreover, it is often much easier to prove intent directly, than to prove the knowledge which would make it unnecessary.

The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be to have chosen to cause that harm; and, on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election his part. Generally speaking, the choice will be found to have extended further than a simple act, and to co-ordinated acts into conduct. Very commonly it will have extended further still, to some external consequence. But generally, also, it will be found to have stopped short of the consequence complained of.

The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.

[160] Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant. But it will be seen that the same result may be caused by a choice at different points. For instance, a man is sued for having caused his neighbor's house to burn down. The simplest case is, that he actually intended to burn it down. If so, the length of the chain of physical causes intervening is of no importance, and has no bearing on the case.

But the choice may have stopped one step farther back. The defendant may have intended to light a fire on his own land, and may not have intended to burn the house. Then the nature of the intervening and concomitant physical causes becomes of the highest importance. The question will be the degree of danger attending the contemplated (and therefore chosen) effect of the defendant's conduct under the circumstances known to him. If this was very plain and very great, as, for instance, if his conduct consisted in lighting stubble near a haystack close to the house, and if the manifest circumstances were that the house was of wood, the stubble very dry, and the wind in a dangerous quarter, the court would probably rule that he was liable. If the defendant lighted an ordinary fire in a fireplace in an adjoining house, having no knowledge that the fireplace was unsafely constructed, the court would probably rule that he was not liable. Midway, complicated and doubtful cases would go to the jury.

But the defendant may not even have intended to set the fire, and his conduct and intent may have been simply to fire a gun, or, remoter still, to walk across a room, in doing which he involuntarily upset a bottle of acid. So that cases may go to the jury by reason of the remoteness [161] of the choice in the series of events, as well as because of the complexity of the circumstances attending the act or conduct. The difference is, perhaps, rather dramatic than substantial.

But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from them, and then goes on to determine what dangers attended either the conduct under the known circumstances, or its contemplated consequence under the contemplated circumstances.

Take a case like the glancing of Sir Walter Tyrrel's arrow. If an expert marksman contemplated that the arrow would hit a certain person, cadit qucoestio. If he contemplated that it would glance in the direction of another person, but contemplated no more than that, in order to judge of his liability we must go to the end of his fore-sight, and, assuming the foreseen event to happen, consider what the manifest danger was then. But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time of shooting.

The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community.

But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, [162] and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril.

In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law.

But in some cases the defendant's conduct may not have been morally wrong, and yet he may have chosen to inflict the harm, as where he has acted in fear of his life. In such cases he will be liable, or not, according as the law makes moral blameworthiness, within the limits explained above, the ground of liability, or deems it sufficient if the defendant has had reasonable warning of danger before acting. This distinction, however, is generally unimportant, and the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct.

The tendency of a given act to cause harm under given circumstances must be determined by experience. And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage of the division between law and morals. It does this in the domain [163] of wrongs described as intentional, as systematically as in those styled unintentional or negligent.

But while the law is thus continually adding to its specific rules, it does not adopt the coarse and impolitic principle that a man acts always at his peril. On the contrary, its concrete rules, as well as the general questions addressed to the jury, show that the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct. And it is certainly arguable that even a fair chance to avoid bringing harm to pass is not sufficient to throw upon a person the peril of his conduct, unless, judged by average standards, he is also to blame for what he does.

[164] LECTURE V.

THE BAILEE AT COMMON LAW.

So far the discussion has been confined to the general principles of liability, and to the mode of ascertaining the point at which a man begins to act at his own peril. But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done. Furthermore, and more to the point, there are certain forms of harm which are not likely to be suffered, and which can never be complained of by any one except a person who stands in a particular relation to the actor or to some other person or thing. Thus it is neither a harm nor a wrong to take fish from a pond unless the pond is possessed or owned by some one, and then only to the possessor or owner. It is neither a harm nor a wrong to abstain from delivering a bale of wool at a certain time and place, unless a binding promise has been made so to deliver it, and then it is a wrong only to the promisee.

The next thing to be done is to analyze those special relations out of which special rights and duties arise. The chief of them—and I mean by the word "relations" relations of fact simply—are possession and contract, and I shall take up those subjects successively.

The test of the theory of possession which prevails in any system of law is to be found in its mode of dealing [165] who have a thing within their power, but not own it, or assert the position of an owner for with regard to it, bailees, in a word. It is therefore, as a preliminary to understanding the common-law theory of possession, to study the common law with regard to bailees.

The state of things which prevailed on the border between England and Scotland within recent times, and which is brought back in the flesh by the ballad of the Fray O'Suport, is very like that which in an earlier century left its skeleton in the folk-laws of Germany and England. Cattle were the principal property known, and cattle-stealing the principal form of wrongful taking of property. Of law there was very little, and what there was depended almost wholly upon the party himself to enforce. The Salic Law of the fifth century and the Anglo-Saxon laws of Alfred are very full in their directions about following the trail. If the cattle were come up with before three days were gone, the pursuer had the fight to take and keep them, subject only to swearing that he lost them against his will. If more than three days went by before the cattle were found, the defendant might swear, if he could, to facts which would disprove the claimant's loss.

This procedure was in truth a legal procedure; but it depended for its beginning and for its execution on the party making the claim. From its "executive" nature, it could hardly have been started by any other than the person on the spot, in whose keeping the cattle were. The oath was to the effect that the party had lost possession against his will. But if all that a man had to swear was that he had lost possession against his will, it is a natural conclusion that the right to take the oath and make use of [166] the procedure depended on possession, and not on ownership. Possession was not merely sufficient, but it was essential. Only he who was in possession could say that he had lost the property against his will, just as only he who was on the spot could follow the cattle. /1/

This, so far as known, was the one means afforded by the early law of our race for the recovery of property lost against one's will. So that, in a word, this procedure, modelled on the self-redress natural to the case which gave rise to it, was the only remedy, was confined to the man in possession, and was not open to the owner unless he was that man.

To this primitive condition of society has been traced a rule which maintained itself to later times and a more civilized procedure, that, if chattels were intrusted by their owner to another person, the bailee, and not the bailor, was the proper party to sue for their wrongful appropriation by a third. It followed that if the bailee, or person [167] so intrusted, sold or gave the goods in his charge to another, the owner could only look to the bailee, and could not sue the stranger; not from any principle in favor of trade, intended to protect those who bought in good faith from parties in possession, but because there was no form of action known which was open to him. But as the remedies were all in the bailee's hands, it also followed that he was bound to hold his bailor harmless. If the goods were lost, it was no excuse that they were stolen without his fault. He alone could recover the lost property, and therefore he was bound to do so.

In the course of time this reason ceased to exist. An owner out of possession could sue the wrongful taker of his property, as well as one who had possession. But the strict liability of the bailee remained, as such rules do remain in the law, long after the causes which gave rise to it had disappeared, and at length we find cause and effect inverted. We read in Beaumanoir (A.D. 1283) that, if a hired thing is stolen, the suit belongs to the bailee, because he is answerable to the person from whom he hired. /1/ At first the bailee was answerable to the owner, because he was the only person who could sue. Now it was said he could sue because he was answerable to the owner.

All the above peculiarities reappear in the Anglo-Norman law, and from that day to this all kinds of bailees have been treated as having possession in a legal sense, as I shall presently show.

It is desirable to prove the native origin of our law of bailment, in order that, when theory comes to be considered, modern German opinion may not be valued at more than its true worth. The only existing theories on [168] the subject come from Germany. The German philosophers who have written upon law have known no other system than the Roman, and the German lawyers who have philosophized have been professors of Roman law. Some rules which we think clear are against what the German civilians would regard as first principles. To test the value of those principles, or at least to prevent the hasty assumption that they are universal, toward which there is a slight tendency among English writers, it is well to realize that we are dealing with a new system, of which philosophy has not yet taken account.

In the first place, we find an action to recover stolen property, which, like the Salic procedure, was based on possession, not on title. Bracton says that one may sue for his chattel as stolen, by the testimony of good men, and that it does not matter whether the thing thus taken was his own property or another's, provided it was in his custody. /1/

The point of especial importance, it will be remembered, was the oath. The oath of the probi homines would seem from the letter of Bracton to have been that the thing was lost (adirata), and this we are expressly told was the fact in a report of the year 1294. "Note that where a man's chattel is lost (ou la chosse de un home est endire), he may count that he [the finder] tortiously detains it, &c., and tortiously for this that whereas he lost the said thing on such a day, &c., he [the loser] came on such a day, &c. [169] (la vynt yl e en jour), and found it in the house of such an one, and told him, &c., and prayed him to restore the Sing, but that he would not restore it, &c., to his damage, &c.; and if he, &c. In this case, the demandant must prove (his own hand the twelfth) that he lost the thing." /1/

Assuming that as the first step we find a procedure kindred to that of the early German folk-laws, the more important question is whether we find any principles similar to those which have just been explained. One of these, it will be remembered, concerned wrongful transfer by the bailee. We find it laid down in the Year Books that, if I deliver goods to a bailee to keep for me, and he sells or gives them to a stranger, the property is vested in the stranger by the gift, and I cannot maintain trespass against him; but that I have a good remedy against the bailee by writ of detinue (for his failure to return the goods). /2/ These cases have been understood, and it would seem on the whole rightly, not merely to deny trespass to the bailor, but any action whatever. Modern writers have added, however, the characteristically modern qualification, that the purchase must be bona fide, and without notice. /3/ It may be answered, that the proposition extends to gifts as well as to sales by the bailee, that there is no such condition in the old books, and that it is contrary to the spirit of the strict doctrines of the common law to read it in. No lawyer needs to be told that, even so qualified, this is no [170] longer the law. /1/ The doctrine of the Year Books must be regarded as a survival from the primitive times when we have seen the same rule in force, unless we are prepared to believe that in the fifteenth century they had a nicer feeling for the rights of bona fide purchasers than at present.

The next point in logical order would be the degree of responsibility to which the bailee was held as towards his bailor who intrusted him. But for convenience I will consider first the explanation which was given of the bailee's right of action against third persons wrongfully taking the goods from his possession. The inverted explanation of Beaumanoir will be remembered, that the bailee could sue because he was answerable over, in place of the original rule, that he was answerable over so strictly because only he could sue. We find the same reasoning often repeated in the Year Books, and, indeed, from that day to this it has always been one of the commonplaces of the law. Thus Hankford, then a judge of the Common Bench, says (circa A.D. 1410), /2/ "If a stranger takes beasts in my custody, I shall have a writ of trespass against him, and shall recover the value of the beasts, because I am chargeable for the beasts to my bailor, who has the property." There are cases in which this reasoning was pushed to the conclusion, that if, by the terms of the trust, the bailee was not answerable for the goods if stolen, he would not have an action against the thief. /3/ The same explanation is repeated to this day. Thus we read in a well- known textbook, [171] "For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action," &c. /1/ In general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will, and if the reason offered were a true one, it would follow that, as he was not answerable over, he could not sue the wrong-doer. It would only be necessary for the wrong-doer to commit a wrong so gross as to free the bailee from responsibility, in order to deprive him of his right of action. The truth is, that any person in possession, whether intrusted and answerable over or not, a finder of property as well as a bailee, can sue any one except the true owner for interfering with his possession, as will be shown more particularly at the end of the next Lecture.

The bailor also obtained a right of action against the wrong-doer at a pretty early date. It is laid down by counsel in 48 Edward III., /2/ in an action of trespass by an agister of cattle, that, "in this case, he who has the property may have a writ of trespass, and he who has the custody another writ of trespass. Persay: Sir, it is true. But [172] he who recovers first shall oust the other of the action, and so it shall be in many cases, as if tenant by elegit is ousted, each shall have the assize, and, if the one recover first, the writ of the other is abated, and so here."

It would seem from other books that this was spoken of bailments generally, and was not limited to those which are terminable at the pleasure of the bailor. Thus in 22 Edward IV., counsel say, "If I bail to you my goods, and another takes them out of your possession, I shall have good action of trespass quare vi et armis." /1/ And this seems to have been Rolle's understanding in the passage usually relied on by modern courts. /2/

It was to be expected that some action should be given to the bailor as soon as the law had got machinery which could be worked without help from the fresh pursuit and armed hands of the possessor and his friends. To allow the bailor to sue, and to give him trespass, were pretty nearly the same thing before the action on the case was heard of. Many early writs will be found which show that trespass had not always the clear outline which it developed later. The point which seems to be insisted on in the Year Books is, as Brooke sums it up in the margin of his Abridgment, that two shall have an action for a single act,—not that both shall have trespass rather than case. /3/ It should be added that the Year Books quoted do not go beyond the case of a wrongful taking out of the custody of the bailee, the old case of the folk-laws. /4/ Even thus [173] the right to maintain trespass is now denied where bailee has the exclusive right to the goods by lease or lien; /1/ although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor. /2/ But the modified rule does not concern the present discussion, any more than the earlier form, because it still leaves open the possessory remedies to all bailees without exception. This appears from the relation of the modified rule to the ancient law; from the fact that Baron Parke, in the just cited case of Manders v. Williams, hints that he would have been prepared to apply the old rule to its full extent but for Gordon v. Harper, and still more obviously from the fact, that the bailee's right to trespass and trover is asserted in the same breath with that of the bailor, as well as proved by express decisions to be cited.

It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at nisi prius that a lender could maintain trespass for damage done to a chattel in the hands of a borrower, and that the case is often cited as authority without remark. Indeed, it is sometimes laid down generally, in reputable text-books, that a gratuitous bailment does not change the possession, but leaves it in the bailor; /4/ that a gratuitous bailee is quasi a servant of the bailor, and the possession of one is the possession of the other; and that it is for this reason that, although the bailee may sue on [174] his possession, the bailor has the same actions. /1/ A part of this confusion has already been explained, and the rest will be when I come to speak of servants, between whom and all bailees there is a broad and well-known distinction. But on whatever ground Lotan v. Cross may stand, if on any, it cannot for a moment be admitted that borrowers in general have not trespass and trover. A gratuitous deposit for the sole benefit of the depositor is a much stronger case for the denial of these remedies to the depositary; yet we have a decision by the full court, in which Lord Ellenborough also took part, that a depositary has case, the reasoning implying that a fortiori a borrower would have trespass. And this has always been the law. /2/ It has been seen that a similar doctrine necessarily resulted from the nature of the early German procedure; and the cases cited in the note show that, in this as in other respects, the English followed the traditions of their race.

The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title. On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by a survival, which [175] explained, and which in the modern form of the an anomaly. /1/ The reason usually given is, that a right of immediate possession is sufficient,—a reason which the notion that the bailor is actually possessed.

The point which is essential to understanding the common-law theory of possession is now established: that all bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies. It is not strictly necessary to go on and complete the proof that our law of bailment is of pure German descent. But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/