03 - Common Law by Oliver Wendell Holmes, Jr.

Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)

Episode Transcript

Speaker 1 (00:00):
Lecture three of the Common Law Ioniver Wendell Holmes Junior.
This LibriVox recording is in the public domain Lecture three trts.
Trespass and Negligence. The object of the next two lectures
is to discover whether there is any common ground at
the bottom of all liability in taught, and if so,

(00:24):
what that ground is. Supposing the attempt to succeed, it
will reveal the general principle of civil liability. At common law.
The liabilities incurred by way of contract are more or
less expressly fixed by the agreement of the party's concerned,
but those arising from a taught are independent of any

(00:46):
previous consent of the wrongdoer to bear the loss occasioned
by his act. If a fails to pay a certain
sum on a certain day, or to deliver a lecture
on a certain night, after having made a binding promise
to do so, the damages which he has to pay
are recovered in accordance with his consent that some or

(01:08):
all of the harms which may be caused by his
failure shall fall upon him. But when a assaults or slaughters
his neighbour, or converts his neighbour's property, it is a
harm which he has never consented to bear, and if
the law makes him pay for it, the reason for
doing so must be found in some general view of

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the conduct which everyone may fairly expect and demand from
every other, whether that other has agreed to it or not.
Such a general view is very hard to find. The
law did not begin with a sery. It has never
worked one out. The point from which it started and
that at which I shall try to show that it

(01:50):
has arrived are on different planes. In the progress from
one to the other. It is to be expected that
its course should not be straight, and its direction not
always visible. All that can be done is to point
out a tendency and to justify it. The tendency, which
is our main concern, is a matter of fact to

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be gathered from the cases, but the difficulty of showing
it is much enhanced by the circumstance that until lately
the substantive law has been approached only through the categories
of the forms of action. Discussions of the legislative principle
have been darkened by arguments on the limits between trespass

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and case, or on the scope of a general issue.
In place of a sery of tort, we have a
sery of trespass, and even within that narrow limit, precedents
of the time of the assize and urata have been
applied without a sort of their connection with a long
forgotten procedure. Since the ancient forms of action have disappeared,

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a broader treatment of the subject ought to be possible.
Ignorance is the best of law reformers. People are glad
to discuss a question on general principles when they have
forgotten this special knowledge necessary for technical reasoning. But the
present willingness to generalize is founded on more than merely
negative grounds. The philosophical habit of the day, the frequency

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of legislation, and the ease with which the law may
be changed to meet the opinions and wishes of the
public all make it natural and unavoidable. The judges, as
well as others, should openly discuss the legislative principles upon
which their decisions must always rest in the end, and
should base their judgments upon broad considerations of policy to

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which the traditions of the bench would hardly have tolerated
a reference fifty years ago. The business of the law
of thoughts is to fix the dividing lines between those
cases in which a man is liable for harm which
he has done, and those in which he is not.
But it cannot enable him to addict with certainty whether
a given act, under given circumstances will make him liable,

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because an act will rarely have that effect unless followed
by damage, and for the most part, if not always,
the consequences of an act are not known, but only guessed,
that is more or less probable. All of the rules
of the law can lay down beforehand are rules for
determining the conduct which will be followed by liability if

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it is followed by harm, that is, the conduct which
a man pursues at his pell. The only guide for
the future to be drawn from a decision against a
defendant in an action of Taught is that similar acts
under circumstances which cannot be distinguished except by the result,
from those of the defendant, are done at the pell

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of the actor. That if he escapes liability, it is
simply because by good fortune, no harm comes of his
conduct in the particular event. If therefore, there is any
common ground for all liability in Taught, we shall best
find it by eliminating the event as it actually turns out,
and by considering only the principles on which the pell

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of his conduct is thrown upon the actor, we are
to ask, what are the elements on the defendant side
which must all be present before liability is possible, and
the presence of which will commonly make him liable if
damage follows. The law of taughts abounds in morel phraseology.
It is much to say of wrongs of malice, fraud, intent,

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and negligence. Hence, it may naturally be supposed that the
risk of a man's conduct is thrown upon him as
a result of some more shortcoming. But while this notion
has been entertained, the extreme opposite will be found to
have been a far more popular opinion. I mean the
notion that a man is answerable for all the consequences

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of his acts, or, in other words, that he acts
at his pell always and wholly, irrespective of the state
of his consciousness upon the matter. To test the form
of opinion, it would be natural to take up successively
the several words such as negligence and intent, which in
the language of morals designate various well understood states of mind,

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and to show their significance in the law. To test
the latter, it would perhaps be more convenient to consider
it under the head of the several forms of action.
So many of our assieties are decisions under one or
another of these forms that it will not be safe
to neglect them, at least in the first instance, and

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a compromise between the two modes of approaching the subject
may be reached by beginning with the action of trespass
and the notion of negligence together, leaving wrongs which are
defined as intentional for the next lecture, tresfast lies are
unintentional as well as intended wrongs. Any wrongful and direct

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application of force is addressed by that action, and therefore
affords a fairfield for a discussion of the general principles
of a liability for intentional wrongs at common law. For
it can hardly be supposed that a man's responsibility for
the consequences of his acts varies as the remedy happens
to fall on one side or the other of the

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p number which separates trespaths from the action on the case,
and the greater part of the law of torts will
be found under one or the other of those two heads.
It might be hastily assumed that the action on the
case is founded on the defendant's negligence, But if that
be so, the same doctrine must prevail in trespass. It

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might be assumed that trespass is founded on the defendants
having caused damage by his act without regard to negligence.
But if that be true, the law must apply the
same criterion to other wrongs differing from trespass, only in
some technical point, as, for instance, that the propertieddamaged was
in the defendant's possession. Neither of the above assumptions, however,

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can be hastily permitted. It might very well be argued
that the action on the case adopts a severe rule
just suggested for trespass, except when the action is founded
on a contract negligence, it might be said, had nothing
to do with the common law liability for a nuisance,
And it might be added that where negligence was the
ground of liability, a special duty had to be founded

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in the defendant's super say assumpsit or public callic. On
the other hand, we shall see what can be said
for the proposition that even in trespass there must at
least be negligence. But whichever argument prevails, for the one
form of action must prevail for the other. The discussion
may therefore be shortened on its technical side by confining

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it to trespass so far as may be practicable, without
excluding light to be got from other parts of the law.
As has just been hinted, there are two series of
the common law liability for unintentional heart. Both of them
seem to receive the implied ascent of popular textbooks, and
neither of them is wanting in plausibility and the semblance

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of a sorty. The first is that of Austin, which
is essentially the theory of a criminalist. According to him,
the characteristic feature of law, properly so called is a
sanction or detriment threatened and imposed by the sovereign for
disobedience to the sovereign's commands. As the greater part of
the law only makes a man civilly answerable for breaking it,

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Austin is compelled to regard the liability to an action
as a sanction, or in other words, as a penalty
for disobedience. It follows from this, according to the prevailing
views of penal law, that such liability ought only to
be based upon personal fault and Austin accepts that conclusion
with its collaries, one of which is that negligence means

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estate of the party's mind. These doctrines will be referred
to later, so far as necessary. The other theory is
directly opposed to the foregoing. It seems to be adopted
by some of the greatest common law authorties, and require
serious discussion before it can be set aside in favor
of any third opinion, which may be maintained. According to

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this view, broadly stated under the common law, a man
acts at his pell. It may be held as a
sort of set off that he is never liable for
missions except in consequence of some duty voluntarily undertaken. But
the whole and sufficient ground for such liabilities as he

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does incur outside of the last class is supposed to
be that he has voluntarily acted and that damage has ensued.
If the act was voluntary, it is totally immaterial that
the detriment which followed from it was neither intended nor
due to the negligence of the actor. In order to
do justice to this way of looking at the subject,

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we must remember that the abolition of the common law
forms of pleading has not changed the rules of substantive law. Hence,
although pleaders now generally alleged intent or negligence, anything which
would formerly have been sufficient to charge a defendant in
trespass is still sufficient, notwithstanding the fact that the ancient
form of action and declaration has disappeared. In the first place,

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it is said considered generally the protection given by the
law to property both within and outside the limits of
the last named action. If a man crosses his neighbour's
boundary by however innocent, a mistake, or if his cattle
escape into his neighbour's field, he is said to be
liable in a trespass quay klausum fregate. If an auctioneer,

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in the most perfect good faith and in the regular
course of his business, sells goods sent to his room
for the purpose of being sold, he may be compelled
to pay their full value if a third person turns
out to be the owner, although he is paid over
the proceeds and is no means of attaining indemnity. Now
suppose that instead of dealing with the plaintiff's property, the

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case is that forces proceeded directly from the defendant's body
to the plaintiff's body. It is urged that as the
law cannot be less careful of the persons than of
the property of its subjects, the only defenses possible are
similar to those which would have been open to an
alleged trespass on land. You may show that there was

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no trespass by showing that the defendant did no act,
as where he was thrown from his horse upon the plaintiff,
or where a third person took his hand and struck
the plaintiff with it. In such cases, the defendant's body
is the passive instrument of an external force, and the
bodily motion relied on by the plaintiff is not his

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act at all. So you may show a justification or
excuse in the conduct of the plaintiff himself. But if
no such excuse is shown, and the defendant has voluntarily acted,
he must answer for the consequences, however little intended and
however unforeseen. If, for instance, being assaulted by a sad person,

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the defendant lifted his stick and accidentally hid the plaintiff
who was standing behind him, according to this view, he
is liable irrespective of any negligence towards the party injured.
The arguments for the doctrine under consideration are for the
most part drawn from precedent, but it is sometimes supposed
to be defensible as theoretically sound. Every man, it is said,

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has an absolute right to his person and so force
free from detriment of the hands of his neighbors. In
the case is put, the plaintiff has done nothing. The defendant,
on the other hand, has trucksen to act. As between
the two, the party whose voluntary conduct has caused the
damage should suffer rather than one who has no share

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in producing it. We have more difficult matter to deal
with when we turn to the pleadings and presidents. In trespass.
The declaration says nothing of negligence, and it is clear
that the damage need not have been intended. The words
reared armies and contrad paquer, which might seem to imply intent,

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are supposed to have been inserted merely to give jurisdiction
to the king's court. Glanville says it belongs to the
sheriff in case of neglect on the part of lords
of franchise, to take cognisance of malaise, blows and even wounds,
unless the accuser, at a charge of breach of the
King's peace nisi accusatour ajiquia de pace dominier Reges INTRACTA.

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Reeves observes, in this distinction between the sheriff's jurisdiction and
that of the king, we see the reason of the allegation.
In modern indictments and rates. We amis of the King's
crown and dignity, the king's peace and the peace, this
last expression being sufficient after the peace of the sheriff

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had ceased to be distinguished as a separate jurisdiction. Again,
it might be said that if the defendant's intent or
neglect was essential to his liability, the absence of bose
would deprive his act of the character of a trespass,
and or therefore to be admissible under the general issue.

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But it is perfectly well settled at common law that
not guilty only denies the act. Next comes the argument
from assiety. I will begin with an early and important case.
It was trespass quaret Clausen and pleaded that he owned
adjoining land upon which was a sorn hedge, that he

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cut the saws, and that they against his will. Ibsu
in rito fell on the plaintiff's land, and the defendant
went quickly upon the same and took them, which was
the trespass complained of, And on demur judgment was given
for the plaintiff. The plaintiff's council put cases which have

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been often repeated. One of them, fair fact said, there's
a diversity between an act resulting in a felony and
one resulting in a trespass. If one is cutting trees
and the bows fall on a man and wound him,
in this case, he shall have an action of trespass
et cetera. And also, Sir, if one is shooting at

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butts and his bow shakes in his hands and kills
a man ibso in rito, it is no felony, as
has been said, et cetera. But if he wounds one
by shooting, he shall have a good action of trespass
against him. And yet the shooting was lawful et cetera,
and the wrong which the other receives was against his

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will et cetera. And so here et cetera. Brian. Another
council states the whole doctrine and uses equally familiar illustrations.
When one does a sing, he is bound to do
it in such a way that by his act, no
prejudice or damage shall be done to etcetera. As if

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I am building a house, when the timber is being
put up, a piece of timber fools on my neighbour's
house and breaks his house, he shall have a good action,
et cetera. And Yet the raising of the house was lawful,
and the timberthell may inuito et cetera. And so if
one assaults me I cannot escape. I, in self defense

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lift my stake to strike him, and in sifting it
hit a man who is behind me. In this case
he shall have an action against me. Yet my raising
my stick was lawful in self defense, and I hit
him may rito et cetera. And so here et cetera,
littleton j to the same intent. And if a man

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is damaged, he ought to be recompensed. If your cattle
come on my land, and it might grasp, notwithstanding you
come freshly and drive them out, you ought to make
amends for what your cattle have done, be it more
or less. And sir, if this should be law, that
he might enter and take the songs. For the same reason,

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if he cut a large tree, he might come with
his wagon and horses to carry the trees off, which
is not reason. Perhaps he has gorn or other crops growing,
et cetera. And no more here. For the law is
all one in great things and small choke cj to
the same intent. For when the principal Singh was not lawful,

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that which depends upon it was not lawful. For when
he cut the salms and they fell on my land,
this falling was not lawful, and therefore his coming to
take them out was not lawful. As to what was
said about their falling inmipsu Rito, that is no plea.
But he ought to show that he could not do

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it in any other way, or that he did all
that was in his power to keep them out. Forty
years later, the year books for port rich As adopting
the argument of Fairfax. In the last case in trespass,
he says, the intent cannot be construed but in felony.
It shall be as when a man shoots at buds

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and kills a man. It is not felony. The iSER
com neevois lonten de ritui, and so the tyler on
a house who with a stone will was a man unwittingly,
it is not felony. But when a man shoots at
the butts and wounds a man, though it is against
his will, he should be called a trespasser against his intent.

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There is a series of later shooting cases, weather the
Ward Dickinson v. Watson, and Underwood v. Hewson, followed by
the Court of Appeals of New York in Castle v.
Derr Ye, in which defenses to the effect that the
damage was done accidentally and by misfortune, and against the

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will and the defendant were held insufficient. In the reign
of Queen Elizabeths it was held that where a man
with a gun at the door of his house shot
at a foul and thereby set fire to his own
house and to the house of his neighbour, he was
liable in an action on the case. Generally, the declaration

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not being on the custom of the realm vise for
negligently keeping his fire for the injury is the same,
although this mischance was not by a common negligence but
by misadventure. The above mentioned instances of the stick and
shooting at butts became standard illustrations. They are repeated by

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Sir Thomas Raymond in Bessie v. Olliot, by Sir William
Blackstone in the famous squibcase, and by other judges and
have become familiar through the textbooks. Sir t Raymond in
the above case, or Sir repease the sort and almost
the words of Littleton j Which have been quoted, and

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says further, in all civil acts the law does not
so much regard the intent of the actor as the
loss and damage of the party's suffering. Sir William Blackstone
also adopts a phrase from Dickinson v. Watson, just cited,
nothing but inevitable necessity is a justification. So Lord Ellenborough

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in Liam v. Pray, if the injury were received from
the personal act of another, it was deemed sufficient to
make it trespass, or according to the more frequently quoted
language of Gross Jay in the same case. Looking into
all the cases from the yearbook in the twenty one
Age seventh down to the latest decision on the subject,

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I find the principle to be that if the injury
be done by the act of the party himself at
the time, or he be the immediate cause of it,
though it happen accidentally or by misfortune, yet he is
answerable in trespass. Further citations are deemed unnecessary. In spite, however,
of all the arguments which may be urged for the

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rule that a man acts and his peril. It has
been rejected by very eminent courts, even under the old
forms of action. In view of this fact, and of
the further circumstance that, since the old forms have been abolished,
the allegation of negligence has spread from the action on
the case to all ordinary declarations in taught which do

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not allege it tempt. Probably many lawyers would be surprised
that anyone should think it worthwhile to go into the
present discussion. Such is the natural impression to be derived
from daily practice. But even if the doctrine under consideration
had no longer any followers, which is not the case,
it would be well to have something more than daily

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practice to sustain our views upon so fundamental a question.
As it seems to me, at least, the true principle
is far from being articulately grasped by all who are
interested in it, and can only be arrived at after
a careful analysis of what has been sought hitherto. It
might be sought enough to cite the decisions opposed to

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the rule of absolute responsibility, and to show that such
a rule is inconsistent with admitted doctrine in sound policy.
But we may go further with profit and inquire whether
there are not strong grounds for thinking that the common
law has never known such a rule, unless in that
period of dry precedent, which is so often to be

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found midway between a creative epoch and a period of
solvent philosophical reaction. Conciliating the attention of those who, contrary
to most modern practitioners, still adhere to the strict doctrine
by reminding them once more that there are weighty decisions
to be cited adverse to it, and that if they

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have involved an innovation, the fact that it has been
made by such magistrates as Chief Justice sure goes far
to prove that the change was politic I think I
may assert that a little reflection will show that it
was required not only by policy, but by consistency. I
will begin with the latter. The same reasoning which would

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make a man answerable in trespas for all damage to
another by force directly resulting from his own act, irrespective
of negligence or intent, would make him answerable in case
for the like damage similarly resulting from the act of
his servant. In the course of the latter's employment. The
discussions of the company's negligence in many railway cases would

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therefore be wholly out of place, for though to be
sure there is a contract which would make the company
liable for negligence, that contract cannot be taken to diminish
any liability which would otherwise exist for a trespass on
the part of its employees. More than this, the same
reasoning would make a defendant responsible for all damage, however remote,

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of which his act could be called the cause, so
long at least as only physical or irresponsible agencies, however unforeseen,
cooperated with the act complained of to produce the result.
The argument which would resolve the case of accidental striking
the plaintiff when lifting a stick in necessary self defense,

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adversely to the defendant, would require a decision against him
in every case where his act was a factor in
the result complained of. The distinction between a direct application
of force and causing damage indirectly or as a more
remote consequence of one's act, although it may determine whether
the form of action should be trespassed or case, does

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not touch the theory of responsibility. If that theory be
that a man acts at his power. As it was
said at the outset. If the strict liability is to
be maintained at all, it must be maintained throughout. A
principle cannot be stated which would retain the strict liability
in trespass while abandoning it in case. It cannot be

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said that trespass is for acts alone, in case the
consequences of those acts. All actions of trespass are the
consequences of acts, not for the acts themselves, And some
actions of trespass are for consequences more remote from the
defendant's act than in other instances where the remedy would

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

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this extremely clear. When a man commits an assault and
battery with a pistol, his only act is to contract
the muscles of his arm and forefinger in a certain way.
But it is the delight of elementary writers to point
out what a vast series of physical changes must take
place before the harm is done. Suppose that instead of

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firing a pistol, he takes up a hose which is
discharging water on the sidewalk and exit at the plaintiff.
It is not even set in motion the physical causes
which must cooperate with his act to make a battery.
Not only natural causes, but a living being may intervene
between the act and its effect. Gibbons the Pepper, which

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decided that there was no battery when a man's horse
was frightened by accident or a serve person and ran
away with him and run over the plaintiff, takes a
distinction that if the rider, by spurring, is the cause
of the accident, then he is guilty. In Scotvy's Shepherd,
already mentioned, trespass was maintained against one who had thrown

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a squib into a crowd, where it was tossed from
hand to hand in self defense until it burst and
injured the plaintiff. Here, even human agencies were a part
of the chain between the defendants act and the result,
although they were treated as more or less nearly automatic
in order to arrive at the decision. Now I repeat

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that if principle requires us to charge a man in
trespass when his act has brought force to bear on
another through a comparatively short train of intervening causes, in
spite of his having used all possible care. It requires
the same liability, however numerous and unexpected the events between

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the act and the result. If running a man down
is a trespass, when the accident can be referred to
the rider's act of spurring, why is it not at
allt in every case, as was argued in Vincent Viesteinhauer,
seeing that it can always be referred more remotely to
his act of mounting and taking the horse out. Why

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is a man not responsible for the consequences of an
act innocent in its direct and obvious effects, when those
consequences would not have followed but for the intervention of
a series of extraordinary, although natural events. The reason is
that if the intervening events are of such a kind

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that no foresight could have been expected to look out
for them, the defendant is not to blame for having
failed to do so. It seems to be admitted by
the English judges that, even on the question whether the
acts of leaving dry trimmings in hot weather by the
side of a railroad and then sending an engine over
the track are negligent. That is our ground of liability.

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The consequences which might reasonably be anticipated are material. Yet
these are acts which, under the circumstances, can hardly be
called innocent in their natural and obvious effects. The same
doctrine has been applied to acts in violation of statute
which could not reasonably have been expected to lead to

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the result complained of. But there is no difference in
principle between the case where a natural cause or physical
factor into means after the act in some way not
to be foreseen, and turns what seemed innocent to harm,
and the case where such a cause or factor intervenes
are known at the time. As for the matter of

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that it did in the English cases cited, if a
man is excused in the one case because he is
not to blame, he must be in the other. The
difference taken in Gibbons v. Pepper cited above is not
between results which are and those which are not the
consequences of the defendant's acts. It is between consequences which

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he was bound as a reasonable man to contemplate and
those which he was not heart spurring is just so
much more likely to lead to harm than merely riding
a horse in the street that the court thought that
the defendant would be bound to look out for the
consequences of the one, while it would not hold him
liable for those resulting merely from the other, because the

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possibility of being run away with when riding quietly, though familiar,
is comparatively slight. If, however, the horse had been unruly
and had been taken into a frequented place for the
purpose of being broken, the owner might have been liable
because it was his fault to bring a wild horse

(32:20):
into a place where mischief might probably be done. To
return to the example of the accidental blow with a
stick lifted in self defense, there is no difference between
hitting a person standing in one's rear and hitting one
who was pushed by a horse within range of the
stick just as it was lifted, provided that it was

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not possible, under the circumstances in the one case to
have known, in the other to have anticipated the proximity.
In either case, there's wanting. The only element which distinguishes
voluntary acts from spasmodic muscular country actions as a ground
of liability in neither of them. That is to say,

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has there been an opportunity of choice with reference to
the consequence complained of a chance to guard against the
result which has come to pass. A choice which entails
a concealed consequence is as to that consequence no choice.
The general principle of our law is that loss from

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accident must lie where it falls. And this principle is
not affected by the fact that a human being is
the instrument of misfortune. But relatively to a given human being,
anything is accident which he could not fairly have been
expected to contemplate as possible, and therefore to avoid. In

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the language of the late Chief Justice Nelson of New York,
no case or principle can be found, or, if found,
can be maintained, subjecting an individual to libels for an
act done without fault on his part. All the cases
concede that an injury arising from inevitable accident, or which

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in law or reason is the same thing from an
act that ordinary human care and foresight are unable to
guard against, is but the misfortune of the sufferer, and
lays no foundation for legal responsibility. This were not so
any act would be sufficient, however, remote which set in

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motion or opened the door for a series of physical
sequences ending in damage, such as riding the horse in
the case of the runaway, or even coming to a
place where one is seized with a fit and strikes
a plaintiff in an unconscious spasm. Nay, why need the
defendant have acted at all? And why is it not

(34:53):
enough that his existence has been at the expense of
the plaintiff. The requirement of an act is the requirement
that the defendant should have made a choice. But the
only possible purpose of introducing this moral element is to
make the power of avoiding the evil complained of a
condition of liability. There is no such power where the

(35:15):
evil cannot be foreseen. Here we reach the argument from policy,
and I shall accordingly postpone for a moment the discussion
of trespasses upon land and of conversions, and will take
up the liability for cattle separately at a latest stage.
A man need not, it is true, to this or

(35:37):
that act. The term act implies a troits, but he
must act somehow. Furthermore, the public generally profits by individual activity,
as action cannot be avoided, and hence to the public good.
There is obviously no policy in throwing the hazard of
what is at once desirable and inevitable upon the end.

(36:01):
The state might conceivably make itself a mutual insurance company
against accidents and distribute the burden of its citizens mishaps
among all its members. There might be a pension for paralytics,
and state aid for those who suffered in person or
estate from tempest or wild beasts as between individuals. It

(36:23):
might adopt the mutual insurance principle protando and divide damages
when both were in fault, as in the rusticumb judicium
of the Admiralty. Or it might throw all lost upon
the actor, irrespective of fault. The state is none of
these things, however, and the prevailing view is that its

(36:44):
cumbrous and expensive machinery ought not to be set in
motion unless some clear benefit is to be derived from
disturbing the status quo. State interference is an evil where
it cannot be shown to be a good. Universal csurance,
if desired, can be better and more cheaply accomplished by
private enterprise. The undertaking to redistribute losses simply on the

(37:09):
ground that they resulted from the defendant's act would not
only be open to these objections, but, as it is hoped,
the preceding discussion has shown to the still graver one
of offending the sense of justice. Unless my act is
of a nature to threaten others, unless under the circumstances
a prudent man would have foreseen the possibility of harm,

(37:32):
it is no more justifiable to make me and dignify
my neighbour against the consequences than to make me do
the same thing if I had fallen upon him in
a fit, or to compel me to ensure him against lightning.
I must now occur to the conclusions drawn from innocent
trespasses upon land and conversions, and the supposed analogy of

(37:56):
those cases to trespasses against the person, lest the law
concerning the latter should be supposed to lie between two antinomies,
each necessitating with equal cogency and opposite conclusion to the other.
Take first the case of trespass upon land attended by
actual damage. When a man goes upon his neighbor's land,

(38:19):
sinking it his own, he intends the very act or
consequence complained of. He means to intermeddle with a certain
sink in a certain way, and it is just that
intended intermeddling to which he is suit Whereas if he
accidentally hits the stranger as he lifts his staff in
self defense, the fact which is the gist of the action, namely,

(38:43):
the contact between the staff and his neighbor's head, was
not intended and could not have been foreseen. It might
be answered to be sure that it is not for
intermeddling with property, but for intermeddling with the plaintiff's property,
that a man is sued, and that in the supposed cases,

(39:04):
just as much as in that of the accidental blow,
the defendant is ignorant of one of the facts making
up the total environment, and which must be present to
make his action wrong. He is ignorant, that is to
say that the true owner either has or claims any
interest in the property in question, and therefore he does

(39:25):
not intend a wrongful act because he does not mean
to deal with his neighbour's property. But the answer to
this is that he does not intend to do the
damage complained of. One who diminishes the value of property
by intentional damage knows it belongs to somebody. If he
thinks it belongs to himself. He expects whatever harm he

(39:48):
may do to come out of his own pocket. It
would be odd if he were to get rid of
the burden by discovering that it belonged to his neighbor.
It is a very different thing to say that he
who intentionally disharm must bear the loss, from saying that
one from whose acts harm follows accidentally as a consequence

(40:09):
which could not have been foreseen, must bear it. Next,
suppose the act complained of is an exercise of dominion
over the plaintiff's property, such as a merely technical trespass
or a conversion. If the defendant sought that the property
belonged to himself, there seems to be no abstract injustice

(40:31):
in requiring him to know the limits of his own titles,
or if he thought that it belonged to another, in
holding him bound to get proof of title before acting.
Considered too what the defendant's liability amounts to. If the act,
whether an entry upon land or a conversion of chattels,
has been unattended by damage to the property, and the

(40:52):
sink has come back to the hands of the true owner,
the sum recovered is merely nominal, and the payment is
nothing more than a normal acknowledgment of the oner's title, which,
considering the effect of prescription and statutes of limitation upon
repeated acts of dominion, is no more than right. All
assemblance of injustice disappears when the defendant is allowed to

(41:15):
avoid the costs of an action by tender or otherwise.
But suppose the property is not come back to the
hands of the true owner. If the sing remains in
the hands of the defendant, it is clearly right that
he should surrender it. And if instead of the sing itself,
he holds the proceeds of a sale, it is as

(41:36):
reasonable to make him pay over its value in trova
or a sum sit as it would have been to
compel a surrender of the sing. But the question whether
the defendant has subsequently paid over the proceeds of the
sale of a chattel to assert person cannot affect the
rights of the true owner of the chattel. In the
supposed case of an auctioneer, for instance, if he paid

(41:59):
the true owner, it would have been an answer to
his bailif's claim. If he has paid his baylor instead,
he has paid one whom he was not bound to pay,
And no general principle requires that this should be held
to divest the plaintiff's find Another consideration affecting the argument
that the law as to trespasses upon property establishes a

(42:22):
general principle, is that the defendant's knowledge or ignorance of
the plaintiff's title is likely to lie wholly in his
own breast, and therefore hardly admits of satisfactory proof. Indeed,
in many cases it cannot have been open to evidence
at aol at the time when the law was settled,
before parties were permitted to testify. Accordingly, in bays Le v. Clarkson,

(42:47):
where the defense set up to an action of trespass
quare clausum was that the defendant, in mowing his own
land involuntarily and by mistake, mowed down some of the
plaintiff's grass. The plaintiff had judgment on demurror, for it
appears the fact was voluntary, and his intention and knowledge

(43:07):
are not traversible they can't be known. This language suggests
that it would be sufficient to explain the law of
trespass upon property historically without attempting to justify it, for
it seems to be admitted that if the defendant's mistake
could be proved, it might be material. It will be

(43:27):
noticed further that any general argument from the law of
trespass upon land to that governing trespass against the person
is shown to be misleading. By the laws to cattle,
the owner is bound at his pell to keep them
off his neighbour's premises, but he is not bound at
his pell in all cases to keep them from his

(43:47):
neighbour's person. The objections to such a decision, as supposed
in the case of an auctioneer, do not rest on
the general theory of liability, but spring altogether from the
special exigency of commerce. It is not becoming just to
hold a person liable for unauthorized into meddling with another's
property until there arises the practical necessity for rapid dealing.

(44:12):
But where this practical necessity exists, it is not surprising
to find, and we do find, a different tendency in
the law. The absolute protection of property, however, natural to
a primitive community more occupied in production than in exchange,
is hardly consistent with the requirements of modern business. Even

(44:34):
when the rules which we have been considering were established,
the traffic of the public markets was governed by more
liberal principles. On the continent of Europe, it was long
ago decided that the policy of protecting titles must yield
to the policy of protecting trade. Cassaragis held that the
general principle namo pus juris in aluminium transferre protes quam

(45:00):
ipsay habit must give way in mercantile transactions to possession
without titre. In later times, as markets over have lost
their importance, the factors acts and their successive amendments have
tended more and more in the direction of adopting the
continental doctrine. I must preface the argument from precedent with

(45:22):
a reference to what has been said already in the
first lecture about early forms of liability, and especially about
the appeals. It was there shown that the appeals to
paque ed plagiz and of Mayhem became the action of trespass,
and that those peals and the early actions of trespass

(45:42):
were always so far as the peers for intentional wrongs.
The contrapacem in the writ of trespass was no doubt
inserted to lay a foundation for the King's writ, But
there seems to be no reason to attribute a similar
purpose to re ed armis or kum usoi, as it

(46:03):
was often put. Glanville says that wounds are within the
sheriff's jurisdiction unless the appella adds a charge of breach
of the King's peace. Yet the wounds are given we
ed armis as much in the one case as in
the other. Bracton says that the lesser wrongs described by

(46:24):
him belong to the king's jurisdiction because they are sometimes
against the peace of our Lord, the King, while as
has been observed, they were supposed to be always committed intentionally.
It might even perhaps be inferred that the allegation contra
pacem was originally material, and it will be remembered that

(46:45):
trespasses formally involved the liability to pay a fine to
the king. If it be true the trespass was originally
confined to intentional wrongs, it is hardly necessary to consider
the argument drawn from the scope hope of the general
issue in form it was a mitigation of the strict
denial de verbo in verbum of the ancient procedure to

(47:08):
which the inquest given by the King's writ was unknown.
The strict form seems to have lasted in England some
time after the trial of the issue by recognition was introduced.
When a recognition was granted, the inquest was, of course
only competent to speak to the facts, as has been
said above. When the general issue was introduced, trespass was

(47:32):
still confined to intentional wrongs. We may now take up
the authorities. It will be remembered that the earlier precedents
are of a date when the assize and urata had
not given place to the modern jury. These bodies spoke
from their own knowledge to an issue defined by the writ,

(47:53):
or to certain familiar questions of fact arising in the
trial of a cause, but did not hear the whole
case upon evidence adduced. Their function was more limited than
that which has been gained by the jury, and it
naturally happened that, when they had declared what the defendant
had done, the judges laid down the standard by which

(48:15):
those acts were to be measured without their assistance. Hence,
the question in the yearbooks is not a loose or
general inquiry of the jury whether they sink the alleged
trespasser was negligent on such facts as they may find,
but a well defined issue of law to be determined
by the court whether certain acts set force upon the

(48:36):
record are a ground of liability. It is possible that
the judges may have dealt pretty strictly with defendants, and
it is quite easy to pass from the premise the
defendants have been held trespasses for a variety of acts
without mention of neglect, to the conclusion that any act
by which another was damaged will make the act rechargeable.

(48:58):
But a more exact scrutiny of the early books will
show that liability in general, then as later, was founded
on the opinion of the tribunal for the defendant ought
to have acted otherwise, or, in other words, that he
was to blame. Returning first to the case of the
sawns in the year Book, it will be seen that

(49:19):
the falling of the sawns into the plaintiffs close, although
a result not wished by the defendant, were in no
other sense against his will. When he cut the sawns,
he didn't act which obviously and necessarily would have that consequence,
and he must be taken to have foreseen and not
to have prevented it. Choke c J. Says as to

(49:43):
what was said about their falling in Ipsu inuito that
is no pla. But he ought to show that he
could not do it in any other way, or that
he did all in his power to keep them out,
And both the judges put the unlawfulness of the en
entry upon the plaintiff's land as a consequence of the

(50:03):
unlawfulness of dropping the sauns there. Trope admits that if
the sawns or a tree had been blown over upon
the plaintiff's land, the defendant might have entered to get them.
Chief Justice crew says of this case in Millin Vie Forgery,
that the opinion was that trespassed lies because he did

(50:24):
not plead that he did his best endeavor to hinder
their falling there. Yet this was a hard case. The
statements of law by counsel in argument may be left
on one side, although Brian is quoted and mistaken for
one of the judges by Sir William Blackstone in Scott
Frees Shepherd. The principal authorities are the shooting cases, and

(50:48):
as shooting is an extra hazardous act, it would not
be surprising if it should be held that men do
it at their pell in public places. The liability has
been put on the general ground of fault, however, where
the line of necessary precaution may be drawn. In Weaver
the Ward, the defendants set up that the plaintiff and

(51:10):
he were skirmishing in a train band, and that when
discharging his peace, he wounded the plaintiff by accident and
misfortune and against his own will. On de Murah, the
cord says that no man shall be excused of a
trespass except it may be judged utterly without his fault,
as if a man by force take my hand and

(51:31):
strike you, or if here the defendant had said that
the plaintiff ran across his peace when it was discharging,
or had set force the case with the circumstances so
as it had appeared to the court that it had
been inevitable, and that the defendant had committed no negligence
to give occasion to the hurt. The later cases simply

(51:51):
follow weav the War. The quotations which were made above
in favor of the strict doctrine, from Sir t Raymond
in sev. Olliott and from Sir William Blackstone in Scott
vll Shepherd are both taken from dissenting opinions. In the
latter case, it is pretty clear that the majority of
the court considered that to repel personal danger by instantaneously

(52:15):
tossing away a squib thrown by another upon one's stool
was not a trespass, although a new motion was thereby
imparted to the squib and the plaintiff's eye was put
out in consequence. The last case cited above in stating
the arguments for absolute responsibility was Liam v. Bray. The

(52:36):
question under discussion was whether the action for running down
the plaintiff should not have been kates rather than trespass,
the defendant founding his objection to trespass on the ground
that the injury happened to his neglect but was not
done wilfully. There was therefore no question of absolute responsibility

(52:57):
for one's acts before the court, as negligence was admitted
and the language used is all directed simply to the
proposition that the damage need not have been done intentionally.
In a Wakeman v. Robinson, another runaway case, there was
evidence that the defendant pulled the wrong brain and that

(53:18):
he ought to have kept a straight cause. The jury
were instructed that if the injury was occasioned by an
immediate act of the defendant, it was immaterial whether the
act was wilful or accidental. On motion for a new trial,
Dallas c j. Said, if the accident happened entirely without

(53:39):
default on the part of the defendant, or blame imputable
to him, the action does not lie. The accident was
clearly occasioned by the default of the defendant. The weight
of evidence was all that weigh. I am now called
upon to grant a new trial contrary to the justice
of the case, upon the ground that the jury were

(54:00):
not called on to consider whether the accident was unavoidable
or occasioned by the fault of the defendant. There can
be no doubt that the learned judge who presided would
have taken the opinion of the jury on that ground
if he had been requested so to do. This language
may have been inapposite under the defendant's plea the general issue,

(54:21):
but the pleadings were not adverted to, and the doctrine
is believed to be sound. In America, there have been
several decisions to the point. In Brown v. Kendall, Chief
Justice Shaw settled the question for Massachusetts that was trespassed
for assault and battery, and it appeared that the defendant,

(54:42):
while trying to separate two fighting dogs, had raised his
stick over his shoulder in the act of striking, and
had accidentally hid the plaintiff in the eye, inflicting upon
him a severe injury. The case was stronger for the
plaintiff than if the defendant had been acting in self defense.
But the court held that although the defendant was bound

(55:03):
by no duty to separate the dogs, yet if he
was doing a lawful act, he was not liable unless
he was wanting in the care which men of ordinary
prudence would use under the circumstances, and that the burden
was on the plaintiff to prove the want of such
care in such a matter. No aciety is more deserving

(55:25):
of respect than that of chief justice. Sure for the
strength of that great judge lay in an accurate appreciation
of the requirements of the community whose officer he was.
Some indeed, many English judges could be named to have
surpassed him in accurate technical knowledge, but few have lived
who were his equals in their understanding of the grounds

(55:47):
of public policy to which all laws must ultimately be referred.
It was this which made him, in the language of
the late Judge Curtis the greatest magistrate which this country
has produced round the Kendall has been followed in Connecticut
in a case where a man fired a pistol in
lawful self defense, as he alleged and hit a bystander.

(56:10):
The court was strongly of opinion that the defendant was
not answerable on the general principles of trespass unless there
was a failure to use such care as was practicable
under the circumstances. The foundation of liability in trespass, as
well as case was said to be negligence. The Supreme
Court of the United States has given the sanction of

(56:33):
its approval to the same doctrine. The language of Harvey v.
Dunlop has been quoted, and there is a case in
Vermont which tends in the same direction. Supposing it now
to be conceded that the general notion upon which liability
to an action is founded is fault or blameworthiness in
some sense, the question arises whether it is so in

(56:57):
the sense of personal moral shortcoming, as would practically result
from Austin's teaching. The language of read j which has
been quoted from the Yearbook, gives a sufficient answer in trespass.
The intent, we may say, more broadly, the defendant's state
of mind cannot be construed. Suppose that a defendant were

(57:21):
allowed to testify that before acting he considered carefully what
would be the conduct of a prudent man under the circumstances,
and having formed the best judgment, he could acted accordingly.
If the story was believed, it would be conclusive against
the defendant's negligence, judged by a moral standard, which would

(57:42):
take his personal characteristics into account. But supposing any such
evidence to have got before the jury, it is very
clear that the court would say, gentlemen, the question is
not whether the defendant sought his conduct was that of
a prudent man, but whether you think it was, Sir.
Middle point must be found between the hauns of this dilemma.

(58:06):
The standards of the law are standards of general application.
The law takes no account of the infinite varieties of temperament, intellect,
and education, which make the internal character of a given
act so different in different men. It does not attempt
to see men as God sees them, for more than
one sufficient reason. In the first place, the impossibility of

(58:31):
nicely measuring a man's powers and limitations is far clearer
than that of ascertaining his knowledge of law, which has
been sought to account for what is called the presumption
that every man knows the law. But a more satisfactory
explanation is that when men live in society, a certain
average a conduct, a sacrifice of individual peculiarities going beyond

(58:55):
a certain point, is necessary to the general welfare. If,
for instance, a man is born hasty and awkward, is
always having accidents and hurting himself or his neighbours, no
doubt his congenital defects will be allowed for in the
courts of heaven. But his lips are no less troublesome
to his neighbours than if they spang from guilty neglect.

(59:18):
His neighbors accordingly require him, at his proper peral to
come up to their standard, and the courts which they
establish decline to take his personal equation into account. The
rule that the lord does, in general determine liability by
blameworthiness is subject to the limitation that minute differences of

(59:39):
character are not allowed. For the law considers, in other words,
what would be blameworthy in the average man, the man
of ordinary intelligence and prudence, and determines liability by that
if we fall below the level in those gifts, it
is our misfortune so much as that we must have
at our for the reasons just given. But he who

(01:00:03):
is intelligent and prudent does not act at his peril.
In theory of law, on the contrary, it is only
when he fails to exercise the foresight of which he
is capable, or exercises it with evil intent, that he
is answerable for the consequences. There are exceptions to the
principle that every man is presumed to possess ordinary capacity

(01:00:27):
to avoid harm to his neighbours, which illustrate the rule
and also the moral basis of liability in general. When
a man has a distinct defect of such a nature
that all can recognize its making certain precautions impossible, he
will not be held answerable for not taking them. A
blind man is not required to see at his heell,

(01:00:49):
and although he is no doubt bound to consider his
infirmity in regulating his actions. Yet if he properly finds
himself in a certain situation, the neglect of precautions requiring
eyesight would not prevent his recovering from an injury to himself,
and it may be presumed, would not make him liable
for injuring another. So it is held that in cases

(01:01:13):
where he is the plaintive, an infant of very tender
years is only bound to take the precautions of which
an infant is capable. The same principle may be cautiously
applied where he is defendant. Insanity is a more difficult
matter to deal with, and no general rule can be
laid down about it. There is no doubt that in

(01:01:34):
many cases a man may be insane and yet perfectly
capable of taking the precautions and of being influenced by
the motives which the circumstances demand. But if insanity of
a pronounced type exists manifestly incapacitating the sufferer from complying
with the rule which he is broken, good sense would

(01:01:55):
require it to be admitted as an excuse. Taking the
qualification last established in connection with the general proposition previously
laid down, it will now be assumed that, on the
one hand, the law presumes or acquires a man to
possess ordinary capacity to avoid harming his neighbours unless a

(01:02:15):
clear and manifest incapacity be shown, but that on the
other it does not, in general, hold him liable for
unintentional injury unless possessing such capacity, he might and ought
to have foreseen the danger, or in other words, unless
a man of ordinary intelligence and foresought would have been

(01:02:37):
to blame for acting as he did. The next question
is whether this vague test is all that the law
has to say upon the matter, and the same question
in another form, by whom this test is to be applied.
Notwithstanding the fact that the grounds of legal liability are
more to the extent above explained, it must be borne

(01:02:59):
in mind that law only works within the sphere of
the senses. If the external phenomena the manifest acts and omissions,
are such as it requires. It is wholly indifferent to
the internal phenomena of conscience. A man may have as
bad a heart as he chooses if his conduct is
within the rules. In other words, the standards of the

(01:03:22):
law are external standards, and however much it may take
moral considerations into account, it does so only for the
purpose of drawing a line between such bodily motions and
rests as it permits, and such as it does not.
What the law really forbids, And the only sing it
forbids is the act on the wrong side of the line,

(01:03:44):
be that act blameworthy or otherwise. Again, any legal standard must,
in Surrey be one which would apply to all men,
not specially accepted under the same circumstances. It is not
intended that the public forces should fall upon an individual
accidentally or at the whim of anybody of men. The standard,

(01:04:06):
that is, must be fixed. In practice. No doubt, one
man may have to pay and another may escape, according
to the different feelings of different juries. But this merely
shows that the law does not perfectly accomplish its ends.
The theory or intention of the law is not that
the feeling of approbation or blame which a particular twelve

(01:04:30):
may entertain should be the criterion. They are supposed to
leave their idiosyncrasies on one side, and to represent the
feeling of the community. The ideal, average prudent man, whose
equivalent the jury is taken to be in many cases,
and whose culpability or innocence is a supposed test, is

(01:04:50):
a constant, and his conduct under given circumstances is theoretically
always the same. Finally, any legal standard might must in
Surrey be capable of being known when a man has
to pay damages, he is supposed to have broken the law,
and he is further supposed to have known what the
law was. If now the ordinary liabilities in taught arise

(01:05:15):
from failure to comply with fixed and uniform standards of
external conduct, which every man is presumed and required to know,
it is obvious that it ought to be possible, sooner
or later to formulate these standards, at least to some extent,
and that to do so must at last be the
business of the court. It is equally clear that the

(01:05:37):
featureless generality that the defendant was bound to use such
care as a prudent manner would do under the circumstances,
ought to be continually giving place to the specific one
that he was bound to use this or that precaution
under these or those circumstances. The standard which the defendant
was bound to come up to was a standard of

(01:05:58):
specific acts or omissions with reference to the specific circumstances
in which he found himself. If in the whole department
of unintentional wrongs, the courts arrived at no further utterance
than the question of negligence, and left every case without
rudder or compass to the jury, they would simply confess

(01:06:20):
their inability to state a very large part of the
law which they required the defendant to know, and would
assert by implication that nothing could be learned by experience.
But neither courts nor legislatures have ever stopped at that point.
From the time of Alfred to the present day, statutes
and decisions have busied themselves with defining the precautions to

(01:06:43):
be taken in certain familiar cases, that is, with substituting
for the vague test of the care exercised by a
prudent man a precise one of specific acts or omissions.
The fundamental sort is still the same that the way
proscis described is that in which prudent men are in
the habit of acting, or else is one laid down

(01:07:06):
for cases where prudent men might otherwise be in doubt.
It will be observed that the existence of the external
tests of liability which will be mentioned, while it illustrates
the tendency of the law of taught to become more
and more concrete by judicial decision and by statute, does
not interfere with the general doctrine maintained as to the

(01:07:29):
grounds of liability. The argument of this lecture, although opposed
to the doctrine that a man acts or exerts force
at his pell is by no means opposed to the
doctrine that he does certain particular acts at his pal.
It is the coarseness, not the nature of the standard,
which is objected to. If when the question of the

(01:07:52):
defendant's negligence is left to a joy, negligence does not
mean the actual state of the defendant's mind, but a
failure to act as a prudent man of average intelligence
would have done. He is required to conform to an
objective standard at his pell. Even in that case, when
a more exact and specific rule has been arrived at

(01:08:13):
he must obey that rule at his pell to the
same extent. But further, if the law is wholly a
standard of external conduct, a man must always comply with
that standard at his pell. Some examples of the process
of specification will be useful. In L. L. Alfred thirty six,

(01:08:34):
providing for the case of a man staking himself on
a spear carried by another, we read, let this liability
be if the point be three fingers higher than the
highmost part of the shark. If they be both on
a level, be that without danger The Rule of the
Road and the Sailing Rules adopted by Congress from England

(01:08:55):
are modern examples of such statutes. By the former rule,
the question has been narrowed from the vague one was
the party negligent to the precise one, was he on
the right or left of the road. To avoid a
possible misconception, it may be observed that, of course, this
question does not necessarily and under all circumstances, decide that

(01:09:18):
of liability. A plaintiff may have been on the wrong
side of the road, as he may have been negligent,
and yet the conduct of the defendant may have been
unjustifiable and a ground of liability, so no doubt a
defendant could justify or excuse being on the wrong side
under some circumstances. The difference between alleging that a defendant

(01:09:41):
was on the wrong side of the road and that
he was negligent is the difference between an allegation of
facts requiring to be excused by a counter allegation of
further facts to prevent there being a ground of liability,
and an allegation which involves a conclusion of law and
denies in advance the existence of an exc Whether the

(01:10:01):
former allegation ought not to be enough, and whether the
establishment of the fact ought not to shift the burden
of proof are questions which belong to the sory of
pleading and evidence, and could be answered either way consistently
with analogy. I should have no difficulty in saying that
the allegation of facts which are ordinarily a ground of liability,

(01:10:23):
and which would be so unless excused or to be sufficient,
but the forms of the law, especially the forms of bleeding,
do not change, was every change of its substance, and
a prudent lawyer would use the broader and safer phrase.
The same course of specification, which has been illustrated from
the Statute Book, ought also to be taking place in

(01:10:45):
the gross of judicial decisions. That this should happen is
in accordance with the past history of the law. It
has been suggested already that in the days of the
assize and urata, the courts decided whether the constituted a
ground of liability. In all ordinary cases a question of

(01:11:06):
negligence might no doubt have gone to the jury. Common
sense and common knowledge are as often sufficient to determine
whether proper care has been taken of an animal, as
they are to say whether A or B owns it.
The cases which first arose were not of a kind
to suggest analysis, and negligence was used as approximately simple

(01:11:29):
element for a long time before the need or possibility
of analysis was found. Still, when an issue of this
sort is found, the dispute is rather what the acts
or omissions of the defendant were than on the standard
of conduct. The distinction between the functions of court and
jury does not come in question until the parties differ

(01:11:51):
as to the standard of conduct. Negligence, like ownership, is
a complex conception. Just as the Latin the existence of
certain facts and also the consequence protection against all the
world which the law attaches to those facts, the former
imports the existence of certain facts, conduct and also the

(01:12:15):
consequence liability which the law attaches to those facts. In
most cases, the question is upon the facts, and it
is only occasionally that one arises on the consequence. It
will have been noticed how the judges pass on the
defendant's acts on grounds of fault and public policy. In

(01:12:38):
the case of the Suns, and that in Weaver the Reward,
it is said that the facts constituting an excuse and
showing that the defendant was free from negligence should have
been spread upon the record in order that the court
might judge. A similar requirement was laid down with regard
to the defense of probable cause in an action for

(01:13:00):
malicious prosecution, and to this day the question of probable
cause is always passed on by the court. Later evidence
will be found in what follows. There is, however, an
important consideration which has not yet been inverted to. It
is undoubtedly possible that those who have the making of

(01:13:22):
the law should deem it wise to put the mark
highat in some cases than the point established by common
practice at which blame worthiness begins. For instance, in Mars v. Plan,
the Court, while declaring in the strongest terms that in
general negligence is the foundation of liability for accidental trespasses,

(01:13:45):
nevertheless hints that if a decision of the point were necessary,
it might hold a defendant to a stricter rule where
the damage was caused by a pistol, in view of
the danger to the public of the growing habit of
carrying deadly weapons. Again, it might well seem that to
enter a man's house for the purpose of carrying a

(01:14:05):
present or inquiring after his house when he was ill
was a harmless and rather praiseworthy act. Although crossing the
owner's boundary was intentional, it is not supposed that an
action would lie at the present day for such a
cause unless the defendant had been forbidden the house it.

(01:14:26):
In the time of Henry the Eights, it was said
to be actionable if without license, for then under that colour,
my enemy might be in my house and kill me.
There is a clear case where public policy establishes a
standard of overt acts without regard to fault in any sense.
In like manner, policy established exceptions to the general prohibition

(01:14:49):
against entering another's premises, as in the instance put by
Chief Justice Choke in the Year Book of a tree
being blown over upon them, or when the highway became
in passible, or for the purpose of keeping the peace.
Another example may perhaps be found in the shape which
has been given in modern times to the liability for animals,

(01:15:11):
and in the derivative principle of Ryland's v. Fletcher, that
when a person brings on his land and collects and
keeps there anything likely to do mischief. If it escapes,
he must keep it in at his peril, and if
he does not do so, is prime a facie answerable
for all the damage which is the natural consequence of

(01:15:33):
its escape. Cases of this sort do not stand on
the notion that it is wrong to keep cattle or
to have a reservoir of water, as might have been
sought with more plausibility when fits and useless animals only
weren't questioned. It may even be very much for the
public good that the dangerous accumulation should be made, a

(01:15:55):
consideration which might influence the decision in some instances and
in different jurisdictions. But as there is a limit to
the nicety of inquiry which is possible in a trial,
it may be considered that the safest way, it is
a pure care, is to throw the risk upon the
person who decides what precautions shall be taken. The liability

(01:16:18):
for trespasses of cattle seems to lie on the boundary
line between rules based on policy irrespective of fault, and
requirements intended to formulate the conduct of a prudent man.
It has been shown in the first lecture how this
liability for cattle arose in the early law, and how

(01:16:39):
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.
But they do not stop there. They go on to
take practical distinctions based on common experience. Thus, when the

(01:17:02):
defendant chased sheep out of his land with a dog,
and as soon as the sheep were out cooled 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. It was lawful

(01:17:23):
in plowing to turn the horses on adjoining land, And
if while so turning the beasts took a mouseful of
grass or subverted the soil with the plow against the
will of the driver, he had a good justification, because
the law would recognize that a man cannot at every
instant govern his cattle as he will. So it was

(01:17:44):
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. So
it was said by Dodoich 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

(01:18:06):
for me to wind my horn to recall the dogs,
because by this the warden of the forest has noticed
that a deer is being chased. The very case of
Mason v. Keeling, 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

(01:18:27):
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, if the animals are

(01:18:49):
such as are naturally mischievous in their kind, he should
asser the hurt done by them without any notice. The
latter principle has been applied to the case of a bear,
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

(01:19:12):
one time sought 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. If, as has been suggested, the historical origin

(01:19:36):
of the rule was different, it does not matter. Following
the same line of salt, 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,

(01:19:57):
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 a hedge and runs into the highway
and kicks or gores some passenger, an action will not

(01:20:18):
lie against the owner, otherwise if he had noticed that
they had done such a thing before. Perhaps the most
striking souciety for the position that the judge's duties are
not at an end when the question of negligence is
reached is shown by discussions concerning the law of bailment.

(01:20:39):
Consider the judgment in Coggs v. Burnet, the Treatises of
Sir William Jones and Story, and the Chapter of Kent
upon this subject. They are so many attempts to state
the duty of the bai lee 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

(01:21:03):
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. To
instruct a jury that they must find the defendant guilty

(01:21:23):
of gross negligence before he can be charged is open
to the approach that for such a body the word
gross is only a retuperative 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 successful or not.

(01:21:47):
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

(01:22:08):
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
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 light, as it should. Thus,

(01:22:33):
in crafton the Metropolitan Railway co the plane tis slipped
on the defendants 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

(01:22:56):
a handwrap. There is 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 a sigh and
ordered a non suit. The ruling was informed that there
was no evidence of negligence to go to the joy,

(01:23:18):
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 textbooks. On the
other hand, if the court should rule that certain acts

(01:23:40):
or omissions coupled with damage were a conclusive evidence of
negligence unless explained, it would, in substance and in truce,
rule that such acts or omissions were a ground of
liability or prevented a recovery, as the case might be. Thus,
it is said to be actionable neglige to let a

(01:24:00):
house for a dwelling, knowing it to be so ineffected
with smallpox as to be dangerous to help, and concealing
the knowledge. To explain the acts or omissions in such
a 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

(01:24:23):
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 is
ruled that there was primea facie evidence of negligence or
some evidence of negligence to go to the jury. Many

(01:24:44):
have noticed the confusion of sort 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

(01:25:06):
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 government 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. But

(01:25:29):
when a controversy arises on the second half, the question
whether the court or the joy 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

(01:25:50):
instructions adapted to every state of facts, which it is
open to the joy to find. If there is no
such dispute, the court may they still take their opinion
as to the standard. The problem is to explain the
relative functions of court and joy with regard to the latter.
When a case arises in which the standard of conduct

(01:26:12):
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 taught has been derived. The court further feels that

(01:26:35):
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. Therefore, it aids its conscience by taking the
opinion of the jury. But supposing a state of facts

(01:26:57):
often repeated in practice, is it to be a man
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.

(01:27:17):
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

(01:27:39):
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 whether the standard was rapidly changing, as for instance,
in some questions of medical treatment. If this be the
proper can inclusion in plain cases. Further consequences ensue. Facts

(01:28:05):
do not often exactly repeat themselves in practice, but cases
with comparatively small variations from each other do. A judge
who is long set 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

(01:28:27):
lead and to instruct them in detail, even where he
sinks it desirable on the whole to take their opinion. Furthermore,
the sphere in which 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

(01:28:50):
be such that negligence may be inferred from it, the
jury are always to decide whether the inference shall be drawn.
But it is believed that the courts, when they lay
down this broad proposition as sinking of cases where the
conduct to be passed upon is not proved directly, and
the main or only question is what that conduct was,

(01:29:12):
not what standards 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

(01:29:34):
of a brick from a railway bridge over a highway
upon the plaintiff. The fact must be inferred that the
dropping was due not to a certain 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.

(01:29:55):
So in the case of a bowel 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. 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

(01:30:18):
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. The principal argument that is urged
in favor of the view that a more extended function

(01:30:40):
belongs to the jury as a 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

(01:31:03):
down conformable to daily life. No doubt, this conformity is
a practical justification for acquiring a man to know the
civil law, as the fact that crimes are also generally
sins is one of the practical justifications for acquiring a
man to know the criminal law. But these considerations only

(01:31:23):
lead to 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

(01:31:47):
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

(01:32:08):
their opinions freely on the value and weight of the evidence,
and the judges in Bank, 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

(01:32:30):
jury with respect to matters of fact, and when the
court in Bank 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

(01:32:51):
the court feels competent to do so. Where 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

(01:33:11):
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 draw questions of negligence
from the jury, without distinguishing nicely whether the doubt concerned
the facts or the standard to be applied. Legal like

(01:33:36):
natural divisions, however clear in their general outline, will be
found on exact scrutiny, to end in a per number
or debatable land. This is the region of the jury,
and only cases falling on this doubtful order are likely
to be carried far in court. Still, the tendency of
the law must always be to narrow the field of uncertainty.

(01:33:59):
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 cases cluster around the opposite poles and begin to

(01:34:21):
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

(01:34:44):
farther to the one side or to the other, but
which must have been drawn somewhere in the neighborhood of
where it falls. 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

(01:35:06):
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 that if a child of two years

(01:35:26):
and four months is unnecessarily sent unattended across and down
a street in a large city, he cannot recover for
a negligent injury, That to allow a boy of eight
to be abroad alone is not necessarily negligent, and that
the effect of permitting a boy of ten to be
abroad after dark is for the jury coupled with the

(01:35:48):
statement which may be ventured on without a sorty, 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

(01:36:10):
a structure one 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. But as the elements are few and permanent,

(01:36:33):
an inclination has been shown to lay down a definite
rule that, in ordinary cases the building complained of must
not be higher than the distance of its base from
the dominant windows. And although this attempt to work out
an exact line requires much caution, it is entirely philosophical
in spirit. The same principle applies to negligence. If the

(01:36:57):
whole evidence in the case was that party, in full
command of 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

(01:37:18):
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.

(01:37:42):
The trouble with many cases of negligence is that they
are of a kind not frequently recurring, so as to
enable any giving judge to profit by long experience with
juries to lay down wolves, 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

(01:38:04):
the relation between negligent and other thoughts for the next lecture.
End of Lecture three.