04 - 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 four of the Common Law by Oliver Wendell Holmes Junior.
This LibriVox, according is in the public domain. Ford malice
and intent the theory of tools. The next subjects to
be considered are ford malice and intent. In the discussion

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of unintentional wrongs, the greatest difficulty to be overcome was
found to be the doctrine that a man acts always
at his pell. In what follows, on the other hand,
the difficulty will be to prove that actual wickedness of
the kind iscribed by the several words just mentioned is

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not an element in the civil wrongs to which those
words are applied. It has been shown in dealing with
the criminal law that when we call an act malicious
in common speech, we meaning that harm to another person
was intended to come of it, and that such harm
was desired for its own sake as an end in itself.

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For the purposes of the criminal law, however, intent alone
was found to be important and to have the same
consequences as intent with malevolence superadded. Pursuing the analysis, intent
was found to be made up of foresight of the
harm as a consequence, coupled with a desire to bring

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it about the latter being conceived as a motive for
the act in question. Of these, again, foresight only seemed
material as a last step. Foresight was reduced to its
lowest turn, and it was concluded that, subject to exceptions
which were explained, the general basis of criminal liability was

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knowledge at the time of action of facts from which
common experience showed that certain harmful results were likely to follow.
It remains to be seen whether a similar reduction is
possible on the civil side of the law, and whether
thus fraudulent, malicious, intentional, and negligent wrongs can be brought

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into a philosophically continuous series. A word of preliminary explanation
will be useful. It has been shown in the lectura
just referred to that an act, although always importing intent,
is per se indifferent to the law. It is a
willed and therefore an intended coordination of muscular contractions, but

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the intent necessarily imported by the act ends there and
all muscular motions or coordinations of them are harmless, apart
from concomitant circumstances, the presence of which is not necessarily
implied by the act itself. To strike out with the
fist is the same act, whether done in a desert

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or in a crowd. The same considerations which have been
urged to show that an act alone by itself does
not and ought not to impose either civil or criminal liability,
apply at least frequently to a series of acts or
to conduct, although the series shows a further co ordination

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and a further intent. For instance, it is the same
series of acts to utter a sentence falsely stating that
a certain bowel contains number one macul. Whether the sentence
is uttered in the secrecy of the closet or to
another man in the course of a bargain, there is

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to be sure in either case the further intent beyond
the coordination of muscles for a single sound to allege
that a certain bowel has certain contents, an intent necessary
shown by the ordering of the words. But both the
series of acts and the intent are per se indifferent.

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They are innocent when spoken in solitude, and are only
a ground of liability when certain concomitant circumstances are shown.
The intent which is meant when spoken of as an
element of legal liability, is an intent directed toward the
harm complained of, or at least toward harm it is

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not necessary in every case to carry the analysis back
to the simple muscular contractions out of which a course
of conduct is made up. On the same principle that
requires something more than an act followed by damage to
make a man liable. We constantly find ourselves at liberty

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to assume a coordinated series of acts as approximately simple
element per se, indifferent in considering what further circumstances or
facts must be present before the conduct in question is
at the actor's peril. It will save confusion and the
need of repetition if this is borne in mind. In

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the following discussion. The chief forms of liability in which fraud, malice,
and intent are said to be necessary elements are deceit,
slander and libel, malicious prosecution, and conspiracy, to which perhaps
may be added trova. Deceit is a notion drawn from

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the moral world, and in its popular sense distinctly imports wickedness.
The doctrine of the common law with regard to it
is generally stated in terms which are only consistent with
actual guilt and all actual guilty intent. It is said
that a man is liable to an action for deceit

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if he makes a false representation to another, knowing it
to be false, but intending that the other should believe
and act upon it. If the person addressed believes it
and is thereby persuaded to act to his own harm.
This is, no doubt the typical case, and it is
a case of intentional more wrong. Now, what is the

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party's conduct here? It consists in uttering certain words so
ordered that the utterance of them imports the knowledge of
the meaning which they would convey if heard. But that
conduct was only that knowledge is neither more nor immore.
Go one step further and add the knowledge of another's

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presence within hearing. Still, the act is no determinate character.
The elements which make it more are the knowledge that
the statement is false and the intent that it shall
be acted on. The principal question, then, is whether this
intent can be reduced to the same terms as it

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has been in other cases. There is no difficulty in
the answer. It is perfectly clear that the intent that
a false representation should be acted on would be conclusively
established by proof that the defendant knew that the other
party intended to act upon it. If the defendant foresaw

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the consequence of his acts, he is chargeable whether his
motive was a desire to induce the other party to act,
or simply an unwillingness for private reasons to state the truths.
If the defendant knew a present fact the other party's intent, which,
according to common experience, made it likely that his act

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would have the harmful consequence, he is chargeable whether he
in fact foresaw the consequence or not. In this matter,
the general conclusion follows from a single instance. For the moment.
It is admitted that in one case, knowledge of a
present fact, such as the other parties intent to act

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on the false statement, dispenses with proof of an intent
to induce him to act upon it. It is admitted
that the lesser element is all that is necessary in
the larger compound for intent embraces knowledge, sufficing for foresight,
as has been shown. Hence, when you prove intent, you

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prove knowledge, and intent may often be the easier to
prove of the two. But when you prove knowledge, you
do not prove intent. It may be said, however, that
intent is implied or presumed in such a case as
has been supposed, but this is only helping out a
falsery by a fiction. It is very much like saying

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that a consideration is presumed for an instrument under seal,
which is merely a way of reconciling the formal sery
that add contracts must have a consideration with the manifest
fact that sealed instruments do not require one. Whenever it
is said that a certain sing is essential to liability,

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but that it is conclusively presumed from something else, there
is always ground for suspicion that the essential element is
to be found in that something else, and not in
what is said to be presumed from it. With regard
to the intent necessary to deceit, we need not stop
with the single instance which has been given. The law

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goes no farther than to acquire proof either of the
intent or that the other party was justified in inferring
such intention, so that the whole meaning of the requirement
is that the natural and manifest tendency of the representation
under the known circumstances must have been to induce the

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opinion that it was made with a view to action,
and so to induce action on the face of it.
The standard of what is called intent is thus really
an external standard of conduct under the known circumstances, and
the analysis of the criminal law holds good here, Nor

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is this all The law, pursuing its course of specification,
as explained in the last lecture, decides what is the
tendency of representations in certain cases, as for instance, that
a horse is sound at the time of making a sale,
or in general, of any statement of fact which it

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is known the other party intends to rely on. Beyond
these scientific rules lies the vague realm of the joy.
The other moral element in deceit is knowledge that the
statement was false. With this I am not strictly concerned,
because all that is necessary is accomplished when the elements

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of risk are adduced to action and knowledge. But it
will aid in the general object of showing that the
tendency of the law everywhere is to transcend more and
reach external standards. If this knowledge of falsehood can be
transmuted into a formula not necessarily important guilt, although of

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course generally accompanied by it. In fact, the moment we
look critically at it, we find the mall side shade away.
The question is what known circumstances are enough to throw
the risk of a statement upon him who makes it.
If it induces another man to act, and it turns

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out untrue. Now it is evident that a man may
take the risk of his statement by express agreement or
by an implied one, which the law reads into him
his bargain. He may, in legal language, warrant the truth
of it, and if it is not true, the law
treats it as a fraud, just as much when he

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makes it fully believing it as when he knows that
it is untrue and means to deceive. If in selling
a horse, the seller wanted him to be only five
years old, and in fact he was thirteen, the seller
could be sued for a deceit at common law, although

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he saw the horse was only five. The common law
liability for the truce of statements is therefore more extensive
than the sphere of actual moral fraut. But again it
is enough in general, if a representation is made recklessly
without knowing whether it is true or false. Now, what

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does recklessly mean. It does not mean actual personal indifference
to the truth of the statement. It means only that
the data for the statement was so far insufficient that
a prudent man could not have made it without leading
to the inference that he was indifferent. That is to say,

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repeating an analysis which has been gone through with before.
It means that the law applying a general objective standard
determines that if a man makes his statement on those data,
he is liable whatever was the state of his mind,
and although he individually may have been perfectly free from

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wickedness in making it. Hence, similar reasoning to that which
has been applied or ready to intend may be applied
to knowledge of falsity. Actual knowledge may often be easier
to prove than that the evidence was insufficient to warrant
the statement, and when proved, it contains means the lesser element.

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But as soon as the lesser element is shown to
be enough, it is shown that the law is ready
to apply an external or objective standard. Here also courts
of equity have laid down the doctrine in terms which
are so wholly irrespective of the actual moral condition of
the defendant as to go to an opposite extreme. It

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is said that when a representation in a matter of
business is made by one man to another, calculated to
induce him to adapt his conduct to it, it is
perfectly immaterial whether the representation is made knowing it to
be untrue, or whether it is made believing it to
be true. If in fact it was untrue, perhaps the

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actual decisions could be reconciled on a narrower principle. But
the rule just stated goes the lengths of saying that
in business matters, a man makes every statement of a
kind likely to be acted on at his pell This
seems hardly justifiable in policy. The more starting point of

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liability in general should never be forgotten, and the law cannot,
without disregarding it, hold a man answerable for statements based
on facts which would have convinced a wise and prudent
man of their truth. The public advantage a necessity of
freedom in imparting information, which privileges even the slander of

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a sad person ought a forty or eye. It seems
to me to privilege statements made at the request of
the party who complains of them. The common law, at
any rate, preserves the reference to morality by making fraud
the ground on which it goes. It does not hold

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that a man always speaks at his peril, but starting
from the moral ground, it works out an external standard
of what would be fraudulent in the average prudent member
of the community, and requires every member at his perll
to avoid that. As in other cases, it is gradually

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accumulating precedents which decide that certain statements, under certain circumstances
are at the perl of the party who makes them.
The elements of deceit which throw the risk of his
conduct upon a party are these, first, making a statement

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of facts purporting to be serious. Second, the known presence
of another within hearing said known facts sufficient toward the
expectation or suggest the probability that the other party will
act on the statement. What facts are sufficient has been

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specifically determined by the courts in some instances. In others,
no doubt, the question would go to the jury on
the principles heretofore explained force the falsehood of the statement.
This must be known or elst. The known evidence concerning
the matter of the statement must be such as would

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not rant belief according to the ordinary course of human experience.
On this point, also, the court may be found to
lay down specific rules in some cases. I next take
up the law of slander. It has often been said
that malice is one of the elements of liability, and
the doctrine is commonly stated in this way that malice

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must exist, but that it is presumed by law from
the mere speaking of the words that again, you may
rebut this presumption of malice by showing that the words
were spoken under circumstances which made the communication privileged, as
for instance, by a lawyer in the necessary course of
his argument, or by a person answering in good face

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to inquiries as to the character of a former servant.
And then it is said the plaintiff may meet this
defense in some cases by showing that the words were
spoken with actual malice. All this sounds as if at
least actual intent to cause the damage complained of, if
not malevolence, were at the bottom of this class of wrongs.

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Yet it is not so. For though the use of
the phrase malice points as usual to an original moral standard,
the rule that it is presumed upon proof of speaking
certain words is equivalent to saying that the overt conduct
of speaking those words may be actionable, whether the consequences

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of damage to the plaintiff was intended or not. With
the general theory, because the manifest tendency of slanderous words
is to harm the person of whom they are spoken. Again,
the real substance of the defense is not that the
damage was not intended, that would be no defense at all,

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But that whether it was intended or not, that is,
even if the defendant foresaw it and foresaw it with pleasure,
the manifest facts and circumstances under which he said it
were such that the law considered the damage to the
plaintiff of less importance than the benefit of free speaking.

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It is more difficult to apply the same analysis to
the last stage of the process, but perhaps it is
not impossible. It is said that the plaintiff may meet
a case of privilege thus made out on the part
of the defendant by proving actual malice, that is, actual
intent to cause the damage complained of. But how is

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this actual malice made out? It is by showing that
the defendant knew the statement which he made was false,
or that his untrue statements were grossly in excess of
what the occasion required. Now, is it not very evident
that the law is looking to a wholly different matter

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from the defendants intent. The fact that the defendant foresaw
and foresaw with pleasure the damage to the plaintiff is
of no more importance in this case than it would
be where communication was privileged. The question again is wholly
a question of knowledge or other external standard. And what

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makes even knowledge important It is that the reason for
which a man is allowed, in the other instances to
make false charges against his neighbors is wanting. It is
for the public interest that people should be free to
give the best of information they can under certain circumstances without fear.

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But there is no public benefit in having lies told
at any time. And when a charge is known to
be false or is in excess of what is required
by the occasion, it is not necessary to make that
charge in order to speak freely. And therefore it falls
under the ordinary war that certain charges are made at

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the party's pell in case they turn out to be false,
whether evil consequences were intended or not. The defendant is
liable not because his intent was evil, but because he
made false charges without excuse. It will be seen that
the pell or conduct here begins farther back than was deceit.

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As the tendency of slander is more universally harmful, there
must be some concomitant circumstances. There must at least be
a human being in existence whom the statement designates. There
must be another human being within hearing who understands the statement,
and the statement must be false. But it is arguable

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that the latter of these facts need not be known,
as certainly the falsity of the charge need not be,
and that a man must take the risk of even
an idle statement being heard unless he made it under
known circumstances of privilege. It would be no great curtailment
of freedom to deny a man immunity in attaching a

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charge of crime to the name of his neighbour, even
when he supposes himself alone. But it does not seem
clear that the law would go quite so far as
that the next form of liability is comparatively insignificant. I
mean the action for malicious prosecution. A man may recover

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damages again against another for maliciously and without probable cause,
instituting a criminal or, in some cases, a civil prosecution
against him upon a false charge. The want of probable
cause refers, of course, only to the state of the
defendant's knowledge, not to his intent. It means the absence

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of probable cause in the facts known to the defendant
when he instituted the suit. But the standard apply to
the defendant's consciousness is external to it. The question is
not whether he sought the facts to constitute probable cause,
but whether the court thinks they did. Then, as to malice,

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

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however great his malice, and however little ground he had
for his charge. Suppose, however, that the charge is false
and does not prevail, it may readily be admitted that
malice did originally mean a malevolent motive, an actual intent
to harm the plaintiff by making a false charge. The

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legal remedy here again started from the moral basis, the
occasion for it, no doubt being similar to that which
gave rise to the old law of conspiracy, that a
man's enemies would sometimes seek his destruction by setting the
criminal law in motion against him, as it was punishable

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to combine for such a purpose. It was concluded, with
some hesitation, that when a single individual wickedly tempted the
same thing, he should be liable on similar grounds. I
must fully admit that there is weighty authority to the
effect that malice in its ordinary sense is to this

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day a distinct fact to be proved and to be
found by the joy. But this view cannot be accepted
without hesitation. It is admitted that, on the one side,
the existence of probable cause believed in is a justification
notwithstanding malice, that on the other it is not enough

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to show that the case appeared sufficient to this particular party,
but it must be sufficient to induce a sober, sensible
and discreet person to act upon it, or it must
fail as a justification for the proceeding upon general grounds.
On the one side, malice alone will not make a

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man liable for instituting a groundless prosecution. On the other,
his justification will depend not on his opinion of the facts,
but on that of the court. When his actual moral
condition is disregarded. To this extent, it is a little
hard to believe that the existence of an improper motive

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should be material. Yet that is what malice must mean
in this case, if it means anything. For the evil
effects of a successful indictment are, of course intended by
one who procures all other to be indicted. I cannot
but think that a jury would be told the knowledge

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or belief that the charge was false at the time
of making it was conclusive evidence of malice, and if so,
on grounds which need not be repeated. Malice is not
the importancing, but the facts known to the defendant. Nevertheless,
as it is obviously treading on delicate ground to make

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it actionable, to set the regular processes of the law
in motion, it is of course entirely possible to say
that the action shall be limited to those cases where
the charge was preferred from improper motives, at least if
the defendant sought that there was probable cause. Such a

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limitation would stand almost alone in the law of civil liability.
But the nature of the wrong is peculiar, and moreover,
it is quite consistent with the theory of liability here
advanced that it should be confined in any given instance
to actual wrongdoing in a moral sense. The only other

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cause of action in which the moral condition of the
defendant's consciousness might seem to be important is conspiracy. The
old action going by that name was much like malicious prosecution,
and no doubt was originally find to cases where several
persons had conspired to indict another from malevolent motives, But

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in the modern action on the case where conspiracy is charged,
the allegation, as a rule only means that two or
more persons were so far cooperating in their acts that
the act of any one was the act of all.
Generally speaking, the liability depends not on the cooperation or conspiring,

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but on the character of the acts done, supposing them
all to be done by one man or irrespective of
the question whether they were done by one or several,
there may be cases to be sure in which the
result could not be accomplished, or the offense could not
ordinarily be proved without a combination of several as for instance,

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the removal of a teacher by a school board. The
conspiracy would not affect the case except in a practical way.
The question would be raised whether, notwithstanding the right of
the board to remove, proof that they were actuated by
malevolence would not make a removal actionable policy. It might

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be said forbids going behind their judgment, but actual evil
motives coupled with the absence of grounds, withdraw this protection.
Because policy, although it does not require them to take
the risk of being right, does require that they should
judge honestly on the merits. Other isolated instances like the

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last might perhaps be found in different parts of the law,
in which actual malevolence would affect a man's liability for
his conduct. Again in Trova, for the conversion of another's chattel,
whether the dominion exercised over it was of a slight
and ambiguous nature, it has been said that the taking

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must be with the intent of exercising an ownership over
the the chattel, inconsistent with the real owner's right of possession.
But this seems to be no more than a faint
shadow of the doctrine explained with regard to larceny, and
does not require any further or special discussion. Trover is

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commonly understood to go like larceny, on the plaintiff's being
deprived of his property, although in factice every possessor has
the action, and generally speaking, the shortest wrongful withholding of
possession is a conversion. Be the exceptions more or less numerous,
the general purpose of the law of taughts is to

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secure a man indemnity against certain forms of harm to
person reputation or estate at the hands of his neighbours,
not because they are wrong, but because they are harms.
The true explanation of the reference of liability to a
moral standard in the sense which has been blamed is

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not that it is for the purpose of improving men's hearts,
but that it is to give a man a fair
chance to avoid doing the harm before he is held
responsible for it. It is intended to reconcile the policy
of letting accidents lie where they fall, and the reasonable
freedom of others with the protection of the individual from injury.

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But the law does not even seek to indemnify a
man from all harms. An unrestricted enjoyment of all his
possibilities would interfere with other equally important enjoyments on the
part of his neighbours. There are certain things which the
law allows a man to do, notwithstanding the fact that

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he foresees that harm to another will follow from them.
He may charge a man with crime if the charge
is true. He may establish himself in business where he
foresees that of his competition will be to diminish the
custom of another shopkeeper, perhaps to ruin him. He may

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construct a building which cuts another off from a beautiful
prospect or he may drain subterranean waters, and thereby drain
and others well. And many other cases might be put.
As any of these things may be done with foresight
of their evil consequences, it would seem that they might

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be done with intent, and even with malevolent intent to
produce them. The whole argument of this lecture and the
proceeding tends to this conclusion. If the aim of liability
is simply to prevent or indemnify from heart, so far
as is consistent with avoiding the extreme of making a

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man answer for accident, when the law permits the harm
to be knowingly inflicted, it would be a strong sing
if the presence of malice need any difference in its decisions.
That might happen, to be sure, without affecting the general
views maintained here, But it is not to be expected,

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and the weight of authority is against it. As the law,
on the one hand, allow certain harms to be inflicted
irrespective of the moral condition of him who inflicts them,
so at the other extreme, it may, on grounds of policy,
throw the absolute risk of certain transactions on the person

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engaging in them, irrespective of blameworthiness in any sense. Instances
of this sort have been mentioned in the last lecture
and will be referred to again. Most liabilities in talkt
lie between these two extremes, and are founded on the
infliction of harm which the defendant had a reasonable opportunity

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to avoid at the time of the acts or omissions
which were its proximate cause. But as fast as specific
rules are worked out in place of the vague reference
to the conduct of the average man, they range themselves
alongside of other specific rules based on public policy, and

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the grounds from which they spring cease to be manifest,
so that, as will be seen directly, rules which seem
to lie outside of culpability in any sense have sometimes
been referred to remote fault, while others which started from
the general notion of negligence may with equal ease be

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referred to some extrinsic ground of policy. Apart from the
extremes just mentioned, it is now easy to see how
the point at which a man's conduct begins to be
at his own peril is generally fixed. When the principle
is understood on which that point is determined by the

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law of thoughts, we possess a common ground of classification
and a key to the whole subject. So far as
tradition has not swerved the law from a consistent sury,
it has been made pretty clear from what precedes that
I find that ground and knowledge of circumstances accompanying an

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act or conduct indifferent but from those circumstances. But it
is worse remarking before that criterion is discussed, that a
possible common ground is reached at the preceding step in
the descent from malice through intent and foresight. Foresight is

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a possible common denominator of wrongs of the two extremes
of malice and negligence. The purpose of the law is
to prevent or secure a man indemnity from harm at
the hands of his neighbours, so far as consistent with
others considerations which have been mentioned, and accepting, of course,

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such harm as it permits to be intentionally inflicted. When
a man foresees that harm will result from his conduct,
the principle which exonerates him from accident no longer applies,
and he is liable. But as has been shown, he
is bound to foresee whatever a prudent and intelligent man

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would have foreseen, and therefore he is liable for conduct
from which such a man would have foreseen that harm
was liable to follow. Accordingly, it would be possible to
state all cases of negligence in terms of imputed or
presumed foresight. It would be possible even to press the

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presumption further, applying the very inaccurate maxim that every man
is presumed to intend the natural consequences of his own acts.
And this mode of expression will in fact be found
to have been occasionally used, more especially in the criminal law,
where the notion of intent has a stronger foothold. The

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latter fiction is more remote and less philosophical than the former,
but after all both are equally fictions. Negligence is not foresight,
but precisely the want of it. And if foresight were presumed,
the ground of the presumption, and therefore the essential element

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would be the knowledge of facts which made foresight possible,
taking knowledge then as the true starting point. The next
question is how to determine the circumstances necessary to be
known in any given case. In order to make a
man liable for the consequences of his act. They must

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be such as would have led a prudent man to
perceive danger, although not necessarily to foresee the specific harm.
This is a vague test. How has it decided what
those circumstances are? The answer must be by experience. But
there is one point which has been left ambiguous in

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the preceding lecture, and here and which must be touched upon.
It has been assumed the conduct which the man of
ordinary intelligence would perceive to be dangerous under the circumstances,
would be blameworthy if pursued by him. It might not
be so. However, suppose that, acting under the sweats of

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twelve armed men, which put him in fear of his life,
a man enters another's close and takes a horse. In
such a case, he actually contemplates and chooses harm to
another as a consequence of his act. Yet the act
is neither blameworthy nor punishable, but it might be actionable.

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And while c J. Ruled that it was so in
Gilbert feast Stone. If this be law, it goes the
full length of deciding that it is enough if the
defendant has had a chance to avoid inflicting the harm
complained of. And it may well be argued that although
he does wisely to ransom his life as he best

(39:18):
may there is no reason why he should be allowed
to intentionally and permanently transfer his misfortunes to the shoulders
of his neighbors. It cannot be inferred from the mere
circumstance that certain conduct is made actionable, that therefore the
law regards it as wrong or seeks to prevent it.

(39:41):
Under our mill acts, as a man has to pay
for flowing his neighbor's lands in the same way that
he has to pay in trova for converting his neighbor's goods,
yet the law approves and encourages the flowing of lands
for the erection of mills. More predilections must not be

(40:02):
allowed to influence our minds in settling legal distinctions. If
we accept the test of the liability alone, how do
we distinguish between trova and the male acts, or between
conduct which is prohibited and that which is merely taxed.
The only distinction which I can see is in the

(40:24):
difference of the collateral consequences attached to the two classes
of conduct. In the one, the maxim in pari delicto
potior est condichio defendentis and the invalidity of contracts contemplating
it show that the conduct is outside the protection of

(40:47):
the law, in the other it is otherwise. This opinion
is confirmed by the fact that almost the only cases
in which the distinction between prohibition and taxi comes up
concern the application of these maxims. But if this be true,

(41:07):
liability to an action does not necessarily import wrongdoing, and
this may be admitted without at all impairing the force
of the argument in the foregoing lecture, which only requires
that people should not be made to pay for accidents
which they could not have avoided. It is doubtful, however,

(41:27):
whether the ruling of chief justice role would now be followed.
The Squib case Scott v. Shepherd, and the language of
some textbooks are more or less opposed to it. If
the latter view is law, then an act must in
general not only be dangerous, but one which would be
blameworthy on the part of the average man in order

(41:51):
to make the actor liable. But aside from such exceptional
cases as Gilbert v. Stone, the two agree, and the
difference need not be considered in what follows. I therefore
repeat that experience is a test by which it is
decided whether the degree of danger attending given conduct under

(42:15):
certain known circumstances is sufficient to throw the risk upon
the party pursuing it. For instance, experience shows that a
good many guns supposed to be unloaded go off and
hurt people. The ordinary, intelligent and prudent member of the
community would foresee the possibility of danger from pointing a

(42:37):
gun which he had not inspected into a crowd and
pulling the trigger although it was said to be unloaded. Hence,
it may very properly be held that a man who
does such a sing does it at his power, and
that if damage ensues, he is answerable for it. The
coordinated acts necessary to point a gun gun and pull

(43:00):
a trigger, and the intent and knowledge shown by the
coordination of those acts, are all consistent with entire blamelessness.
They threaten harm to no one without further facts. But
the one additional circumstance of a man in the line
and within range of the piece makes the conduct manifestly

(43:21):
dangerous to anyone who knows the fact. There is no
longer any need to refer to the prudent man or
general experience. The facts have taught their lesson and have
generated a concrete and external rule of liability. He who
snaps a cap upon a gun pointed in the direction

(43:42):
of another person known by him to be present, is
answerable for the consequences. The question what a prudent man
would do under given circumstances is then equivalent to the
question what are the teachings of experience as to the
dangerous character of this or that conduct under these or

(44:05):
those circumstances? And as the teachings of experience are matters
of fact, it is easy to see why the jury
should be consulted with regard to them. They are, however,
facts of a special and peculiar function. Their only bearing
is on the question what ought to have been done

(44:26):
or omitted under the circumstances of the case, not on
what was done. Their function is to suggest a rule
of conduct. Sometimes courts are induced to lay down rules
by facts of a more specific nature, as that the
legislature passed a certain statute and that the case at

(44:49):
bar is within the fair meaning of its words, Or
that the practice of a specially interested class or of
the public at large, has generated a rule of conduct
outside the law, which it is desirable that the courts
should recognize and enforce. These are matters of fact, and

(45:09):
have sometimes been pleaded as such, but as their only
importance is that, if believed, they will induce the judges
to lay down a rule of conduct, or in other words,
a rule of law suggested by them, their tendency in
most instances is to disappear as fast as the rules

(45:29):
suggested by them become settled. While the facts are uncertain,
as they are still only motives for decision upon the
law grounds for legislation, so to speak, the judges may
ascertain them in any way which satisfies their conscience. Thus,

(45:49):
courts recognize the statutes of the jurisdiction judicially, although the
laws of other jurisdictions, with doubtful wisdom, are left to
the jury. They may take judicial cognisance of a custom
of merchants in former days, at least they might inquire
about it in pay after a demure. They may act

(46:13):
on the statement of a special jury, as in the
time of Lord Mansfield and his successes, or upon the
finding of a common jury based on the testimony of witnesses,
as is the practice today in this country. But many
instances will be found in the textbooks, which show that

(46:34):
when the facts are ascertained, they soon cease to be
referred to and give place to a rule of law.
The same transition is noticeable with regard to the teachings
of experience. There are many cases, no doubt, in which
the court would lean for aid upon a jury, but

(46:54):
there are also many in which the teaching has been
formulated in specific rules. These rules will be found to
vary considerably with regard to the number of concomitant circumstances
necessary to throw the peril of conduct otherwise indifferent on
the actor. As the circumstances become more numerous and complex,

(47:19):
the tendency to cut the knot with the jury becomes greater.
It will be useful to follow a line of cases
up from the simple to the more complicated by way
of illustration. The difficulty of distinguishing rules based on other
grounds of policy from those which have been worked out
in the field of negligence will be particularly noticed. In

(47:44):
all these cases, it will be found that there has
been a voluntary act on the part of the person
to be charged. The reason for this requirement was shown
in the foregoing lecture. Unnecessary though it is for the
day defendant to have intended or foreseen the evil which
he has caused, it is necessary that he should have

(48:07):
chosen the conduct which led to it. But it has
also been shown that a voluntary act is not enough,
and that even a coordinated series of acts or conduct
is often not enough by itself. But the coordination of
a series of acts shows a further intent than is

(48:27):
necessarily manifested by any single act, and sometimes proves with
almost equal certainty the knowledge of one or more concomitant circumstances.
And there are cases where conduct was only the intent
and knowledge thus necessarily implied is sufficient to throw the

(48:47):
risk of it on the actor. For instance, when a
man does the series of acts called walking, it is assumed,
for all purposes of responsibility, that he knows the earth
is under his feet. The conduct per se is indifferent.
To be sure, a man may go through the motions

(49:10):
of walking without legal pell if he chooses to practice
on a private treadmill. But if he goes through the
same motions on the surface of the earth, it cannot
be doubted that he knows that the earth is there.
With that knowledge, he acts at his pell in certain respects.

(49:33):
If he crosses his neighbor's boundary, he is a trespasser.
The reasons for this strict rule have been partially discussed
in the last lecture. Possibly there is more of history,
or of past or present notions of policy in its
explanation than is there suggested. And at any rate, I

(49:54):
do not care to justify the rule, but it is intelligible.
A man who walks knows that he is moving over
the surface of the earth. He knows that he is
surrounded by private estates which he has no right to enter,
and he knows that his motion, unless properly guided, will

(50:15):
carry him into those estates. He is thus warned, and
the burden of his conduct is thrown upon himself. But
the act of walking does not throw the pell of
all possible consequences upon him. He may run a man
down in the street, but he is not liable for

(50:36):
that unless he does it negligently. Confused as the law
is with cross lights of tradition, and hard as we
may find it to arrive at perfectly satisfactory general theory,
it does distinguish in a pretty sensible way, according to
the nature and degree of the different pells incident to

(50:59):
a given situation. From the simple case of walking, we
may proceed to the more complex cases of dealings with
tangible objects of property. It may be said that generally speaking,
a man meddles with such things at his own risk.

(51:20):
It does not matter how honestly he may believe that
they belong to himself or are free to the public,
or that he has a license from the owner, or
that the case is one in which the law has
limited the rights of ownership. He takes the chance of
how the fact may turn out, and if the fact

(51:42):
is otherwise than as he supposes, he must answer for
his conduct. As has been already suggested. He knows that
he is exercising more or less dominion over property, or
that he is injuring it, he must make good his right.
If it is challenged whether this strict rule is based

(52:06):
on the common grounds of liability or upon some special
consideration of past or present policy. Policy has set some
limits to it, as was mentioned in the foregoing lecture.
Another case of conduct which is at the risk of
the party without further knowledge than it necessarily imports, is

(52:31):
the keeping of a tiger or bear, or other animal
of a species commonly known to be ferocious. If such
an animal escapes and does damage, the owner is liable
simply on proof that he kept it. In this instance,
the comparative remoteness of the moment of choice in the

(52:52):
line of causation from the effect complained of will be
particularly noticed. Ordinary cases of liability arise out of a
choice which was the proximate cause of the harm upon
which the action is founded. But here there is usually
no question of negligence in guarding the beast. It is

(53:15):
enough in most, if not in all, cases, that the
owner has chosen to keep it. Experience has shown that
tigers and bears are alert to find means of escape,
and that if they escape, they are very certain to
do harm of a serious nature. The possibility of a

(53:35):
great danger has the same effect as the probability of
a less one, and the law throws the risk of
the venture on the person who introduces the peril into
the community. This remoteness of the opportunity of choice goes
far to show that this risk is thrown upon the

(53:55):
owner for other reasons than the ordinary one of imprudent
It has been suggested that the liability stood upon remote inadvertence,
But the law does not forbid a man to keep
him a nagerie or deem it in any way blameworthy.
It has applied nearly as trick to rule to dealings

(54:17):
which are even more clearly beneficial to the community than
a show of wild beasts. This seems to be one
of those cases where the ground of liability is to
be sought in policy coupled with tradition, rather than in
any form of blameworthiness, or the existence of such a

(54:38):
chance to avoid doing the harm as a man is
usually allowed. But the fact that remote inadvertence has been
suggested for an explanation illustrates what has been said about
the difficulty of deciding whether a given rule is founded
on special grounds or has been worked out within the

(54:58):
sphere of negligence. When once a special rule has been
laid down, it is further to be noticed that there
is no question of the defendant's knowledge of the nature
of tigers, although without that knowledge he cannot be said
to have intelligently chosen to subject the community to danger.

(55:19):
Here again, even in the domain of knowledge, the law
applies its principle of averages. The fact that tigers and
bears are dangerous is so generally known that a man
who keeps them is presumed to know their peculiarities. In
other words, he does actually know that he has an
animal with certainties, clause and so forths, and he must

(55:44):
find out the rest of what an average member of
the community would know at his peril. What is true
as to damages in general done by ferocious wild beasts
is true as to a particular class of death damages
done by domestic cattle, namely trespasses upon another's land. This

(56:07):
has been dealt with in former lectures, and it is
therefore needless to do more than to recall it here
and to call attention to the distinction, based on experience
and policy, between damage which is and that which is
not of a kind to be expected. Cattle generally stray
and damage cultivated land when they get upon it. They

(56:31):
only exceptionally hurt human beings. I need not recur to
the possible historical connection of either of these last forms
of liability with the noxded issue, because, whether that origin
is made out or not, the policy of the rule
has been accepted as sound and carried further in England

(56:54):
within the last few years by the doctrine that a
man who brings upon his land and keep there anything
likely to do mischief if it escape, must keep it
in at his peril. The strictness of this principle will
vary in different jurisdictions, as the balance varies between the
advantages to the public and the dangers to individuals from

(57:17):
the conduct in question. Danger of harm to others is
not the only thing to be considered. As has been
said already, the law allows some harms to be intentionally inflicted,
and a forty ori some risks to be intentionally run.
In some Western states, a man is not required to

(57:40):
keep his cattle fenced in some courts have refused to
follow Ryland's the Fletcher. On the other hand, the principle
has been applied to artificial reservoirs of water, to cesspools,
to accumulations of snow and ice upon a building by
reason of the form of its roof, and to party wars.

(58:02):
In these cases, as in that of ferocious animals, it
is no excuse that the defendant did not know and
could not have found out the weak point from which
the dangerous object escaped. The period of choice was further back,
and although he was not to blame, he was bound
at his peril to know that the object was a

(58:25):
continual threat to his neighbors, and that is enough to
throw the risk of the business on him. I now
passed to cases one degree more complex than those so
far considered. In these, there must be another concomitant circumstance
known to the party, in addition to those of which

(58:45):
the knowledge is necessarily or practically proved by his conduct.
The cases which naturally suggest themselves again concern animals. Experience,
as interpreted by the English law, has shown that dogs, rams,
and bulls are in general of attain and mired nature,

(59:07):
and that if any one of them does, by chance
exhibit a tendency to bite, but or gore, it is
an exceptional phenomenon. Hence, it is not the law that
a man keeps dogs, rams, bulls, and other like tame
animals at his peril as to the personal damages which

(59:27):
they may inflict, unless he knows or has noticed, that
the particular animal kept by him has the abnormal tendency
which they do sometimes show. The law has, however, been
brought a little nearer to actual experience by statute in
many jurisdictions. Now let us go one step farther still.

(59:50):
A man keeps an unbroken and unruly horse, knowing it
to be so, that is not enough to throw the
risk of its behavior on him. The tendency of the
known wildness is not dangerous generally, but only under particular circumstances.
Add to keeping the attempt to break the horse, still

(01:00:12):
no danger to the public is disclosed. But if the
place where the owner tries to break it is a
crowded sorrowfair, the owner knows an additional circumstance which, according
to common experience, makes this conduct dangerous, and therefore must
take the risk of what harm may be done. On

(01:00:34):
the other hand, if a man who was a good
rider brought a horse with no appearance of vice and
mounted it to ride home, there would be no such
apparent danger as to make him answerable if the horse
became unruly and did damage. Experience has measured the probabilities
and draws the line between the two cases. Whatever may

(01:00:57):
be the true explanation of the rule all applied to
keeping tigers, or the principle of Rylns v. Fletcher. In
the last cases, we have entered the sphere of negligence.
And if we take a case lying somewhere between the
two just stated and add somewhat to the complexity of
the circumstances, we shall find that both conduct and standard

(01:01:20):
would probably be left without much discrimination to the jury
on the broad issue whether the defendant had acted as
a prudent man would have done under the circumstances. As
to the wrongs called malicious or intentional, it is not
necessary to mention the different classes a second time and

(01:01:41):
to find them a place in this series. As has
been seen, they vary in the number of circumstances which
must be known. Slander is conduct which is very generally
at the risk of the speaker, because as charges of
the kind with which it deals are manifestly detriment mental.
The questions which practically arise for the most part concern

(01:02:05):
the defense of truce or privilege to seed. To requires
more but still simple facts. Statements do not threaten the
harm in question unless they are made under such circumstances
as to naturally lead to action, and are made on
insufficient grounds. It is not, however, without significance, that certain

(01:02:28):
wrongs are described in language importing intent. The harm in
such cases is most frequently done intentionally, and if intent
to cause a certain harm is shown, their need to
prove knowledge of facts which made it that harm would follow. Moreover,
it is often much easier to prove intent directly than

(01:02:50):
to prove the knowledge which would make it unnecessary. The
cases in which a man is treated as the responsible
cause of a given harm on the one and extend
beyond those in which his conduct was chosen in actual
contemplation of that result, and in which therefore he may
be to have chosen to cause that harm. And on

(01:03:12):
the other hand, they do not extend to all instances
where the damages would not have happened but for some
remote election on his part. Generally speaking, the choice will
be found to have extended further than a simple act,
and to coordinated acts into conduct. Very commonly it will

(01:03:33):
have extended further still to some external consequence. But generally
also it will be found to have stopped short of
the consequence complained of. The question in each case is
whether the actual choice, or in other words, the actually
contemplated result, was near enough to the remoter result complained

(01:03:54):
of to throw the peril of it upon the actor.
Many of the cases which have been put thus far
are cases where the approximate cause of the loss was
intended to be produced by the defendant. But it will
be seen that the same results may be caused by
a choice at different points For instance, a man is

(01:04:16):
sued for having caused his neighbour's house to burn down.
The simplest case is that he actually intended to burn
it down. If so, the length of the chain of
physical causes intervening is of no importance and has no
bearing on the case. But the choice may have stopped
one step farther back. The defendant may have intended to

(01:04:39):
light a fire on his own land and may not
have intended to burn the house. Then the nature of
the intervening and concomincient physical causes becomes of the highest importance.
The question will be the degree of danger attending the
contemplated and therefore chosen effect of the defendant's conduct under

(01:05:01):
the circumstances known to him. If this was very plain
and very great, as for instance, if his conduct consisted
in lighting stubble near a haystack close to the house,
and if the manifest circumstances were that the house was
of wood, the stubble very dry, and the wind in

(01:05:21):
a dangerous quarter, the court would probably rule that he
was liable. If the defendant lighted an ordinary fire in
a fireplace in an adjoining house, having no knowledge that
the fireplace was unsafely constructed, the court would probably rule
that he was not liable. Midway complicated and doubtful cases

(01:05:43):
would go to the jury. But the defendant may not
even have intended to set the fire, and his conduct
and intent may have been simply to fire a gun
or a motor still to walk across a room, in
doing which he involuntarily upset a bottle of acid, So
that cases may go to the jury by reason of

(01:06:04):
the remoteness of the choice in the series of events,
as well as because of the complexity of the circumstances
attending the act or conduct. The difference is perhaps rather
dramatic than substantial. But the philosophical analysis of every wrong
begins by determining what the defendant has actually chosen, that

(01:06:27):
is to say, what his voluntary act or conduct has been,
and what consequences he has actually contemplated as flowing from them,
and then goes on to determine what dangers attended either
the conduct under the known circumstances or its contemplated consequence
under the contemplated circumstances. Take a case like the glassing

(01:06:50):
of Sir Walter Till's arrow. If an expert marksman contemplated
that the arrow would hit a certain person, caddied Christ
if he contemplated that it would glance in the direction
of another person, but contemplated no more than that. In
order to judge of his liability, we must go to

(01:07:11):
the end of his foresight, and, assuming the foreseen event
to happen, consider what the manifest danger was then. But
if no such event was foreseen, the marksman must be
judged by the circumstances known to him at the time
of shooting. The theory of thoughts may be summed up
very simply, as the two extremes of the law are

(01:07:34):
rules determined by policy, without reference of any kind to morality.
Certain harms a man may inflict, even wickedly, for certain others,
he must answer, although his conduct has been prudent and
beneficial to the community. But in the main, the law
started from those intentional wrongs, which are the simplest and

(01:07:57):
most pronounced cases, as well as nearest to the feeling
of revenge, which leads to self redress. It thus naturally
adopted the vocabulary and in some degree the tests of morals.
But as the law has grown, even when its standards
have continued to model themselves upon those of morality. They

(01:08:18):
have necessarily become external because they have considered not the
actual condition of the particular defendant, but whether his conduct
would have been wrong in the fair average member of
the community, whom he is expected to equal at his peril.
In general, this question will be determined by considering the
degree of danger attending the act or conduct under the

(01:08:41):
known circumstances. If there is danger that harm to another
will follow, the act is generally wrong in the sense
of the law. But in some cases the defendant's conduct
may not have been morally wrong, and yet he may
have chosen to inflict the harm as where he has
acted in fear. In such cases he will be liable

(01:09:03):
or not, according as the law makes more blameworthiness within
the limits explained above the ground of liability or deems
it sufficient if the defendant has had reasonable warning of
danger before acting. This distinction, however, is generally unimportant, and
the known tendency of the act under the known circumstances

(01:09:25):
to do harm may be accepted as the general test
of conduct. The tendency of a given act to cause
harm under given circumstances must be determined by experience and
the experience, either at first hand or through the voice
of the jury, is continually working out concrete rules, which

(01:09:47):
in form are still more external and still more remote
from a reference to the moral condition of the defendant
than even the test of the prudent man, which makes
the first stage of the division between law and morals.
It does in the domain of wrongs described as intentional
as systematically as in those styled unintentional or negligent. But

(01:10:11):
while the law is thus continually adding to its specific rules,
it does not adopt the cause in impolitic principle that
a man acts always at his peril. On the contrary,
its concrete rules, as well as the general questions addressed
to the jury, show that the defendant must have had
at least a fair chance of avoiding the infliction of

(01:10:34):
harm before he becomes answerable for such a consequence of
his conduct. And it is certainly arguable that even a
fair chance to avoid bringing harm to pass is not
sufficient to throw upon a person the peril of his conduct,
unless judged by average standards, he is also to blame
for what he does. End of Lecture four.