LECTURE IV.
FRAUD, MALICE, AND INTENT.- THE THEORY OF TORTS.
[130] The next subjects to be considered are fraud, malice, and
intent. In the discussion of unintentional wrongs, the greatest
difficulty to be overcome was found to be the doctrine that a man
acts always at his peril. In what follows, on the other hand, the
difficulty will be to prove that actual wickedness of the kind
described by the several words just mentioned is not an element
in the civil wrongs to which those words are applied.
It has been shown, in dealing with the criminal law, that, when
we call an act malicious in common speech, we mean that harm to
another person was intended to come of it, and that such harm was
desired for its own sake as an end in itself. For the purposes of
the criminal law, however, intent alone was found to be
important, and to have the same consequences as intent with
malevolence superadded. Pursuing the analysis, intent was found
to be made up of foresight of the harm as a consequence, coupled
with a desire to bring it about, the latter being conceived as
the motive for the act in question. Of these, again, foresight
only seemed material. As a last step, foresight was reduced to
its lowest term, and it was concluded that, subject to exceptions
which were explained, the general basis of criminal liability was
knowledge, at the time of action, [131] of facts from which
common experience showed that certain harmful results were likely
to follow.
It remains to be seen whether a similar reduction is possible on
the civil side of the law, and whether thus fraudulent,
malicious, intentional, and negligent wrongs can be brought into
a philosophically continuous series.
A word of preliminary explanation will be useful. It has been
shown in the Lecture just referred to that an act, although
always importing intent, is per se indifferent to the law. It is
a willed, and therefore an intended coordination of muscular
contractions. But the intent necessarily imported by the act ends
there. And all muscular motions or co-ordinations of them are
harmless apart from concomitant circumstances, the presence of
which is not necessarily implied by the act itself. To strike out
with the fist is the same act, whether done in a desert or in a
crowd.
The same considerations which have been urged to show that an act
alone, by itself, does not and ought not to impose either civil
or criminal liability, apply, at least frequently, to a series of
acts, or to conduct, although the series shows a further
co-ordination and a further intent. For instance, it is the same
series of acts to utter a sentence falsely stating that a certain
barrel contains No. 1 Mackerel, whether the sentence is uttered
in the secrecy of the closet, or to another man in the course of
a bargain. There is, to be sure, in either case, the further
intent, beyond the co-ordination of muscles for a single sound,
to allege that a certain barrel has certain contents,--an intent
necessarily shown by the ordering of the words. But both the
series of acts and the intent are per se indifferent. They are
innocent when spoken in solitude, and [132] are only a ground of
liability when certain concomitant circumstances are shown.
The intent which is meant when spoken of as an element of legal
liability is an intent directed toward the harm complained of, or
at least toward harm. It is not necessary in every case to carry
the analysis back to the simple muscular contractions out of
which a course of conduct is made up. On the same principle that
requires something more than an act followed by damage to make a
man liable, we constantly find ourselves at liberty to assume a
co-ordinated series of acts as a proximately simple element, per
se indifferent, in considering what further circumstances or
facts must be present before the conduct in question is at the
actor's peril. It will save confusion and the need of repetition
if this is borne in mind in the following discussion.
The chief forms of liability in which fraud, malice, and intent
are said to be necessary elements, are deceit, slander and libel,
malicious prosecution, and conspiracy, to which, perhaps, may be
added trover.
Deceit is a notion drawn from the moral world, and in its popular
sense distinctly imports wickedness. The doctrine of the common
law with regard to it is generally stated in terms which are only
consistent with actual guilt, and all actual guilty intent. It is
said that a man is liable to an action for deceit if he makes a
false representation to another, knowing it to be false, but
intending that the other should believe and act upon it, if the
person addressed believes it, and is thereby persuaded to act to
his own harm. This is no doubt the typical case, and it is a case
of intentional moral wrong. Now, what is the party's conduct
here. It consists in uttering certain words, [133] so ordered
that the utterance of them imports a knowledge of the meaning
which they would convey if heard. But that conduct with only that
knowledge is neither moral nor immoral. Go one step further, and
add the knowledge of another's presence within hearing, still the
act has no determinate character. The elements which make it
immoral are the knowledge that the statement is false, and the
intent that it shall be acted on.
The principal question then is, whether this intent can be
reduced to the same terms as it has been in other cases. There is
no difficulty in the answer. It is perfectly clear that the
intent that a false representation should be acted on would be
conclusively established by proof that the defendant knew that
the other party intended to act upon it. If the defendant foresaw
the consequence of his acts, he is chargeable, whether his motive
was a desire to induce the other party to act, or simply an
unwillingness for private reasons to state the truth. If the
defendant knew a present fact (the other party's intent), which,
according to common experience, made it likely that his act would
have the harmful consequence, he is chargeable, whether he in
fact foresaw the consequence or not.
In this matter the general conclusion follows from a single
instance. For the moment it is admitted that in one case
knowledge of a present fact, such as the other party's intent to
act on the false statement, dispenses with proof of an intent to
induce him to act upon it, it is admitted that the lesser element
is all that is necessary in the larger compound. For intent
embraces knowledge sufficing for foresight, as has been shown.
Hence, when you prove intent you prove knowledge, and intent may
often [134] be the easier to prove of the two. But when you prove
knowledge you do not prove intent.
It may be said, however, that intent is implied or presumed in
such a case as has been supposed. But this is only helping out a
false theory by a fiction. It is very much like saying that a
consideration is presumed for an instrument under seal; which is
merely a way of reconciling the formal theory that all contracts
must have a consideration with the manifest fact that sealed
instruments do not require one. Whenever it is said that a
certain thing is essential to liability, but that it is
conclusively presumed from something else, there is always ground
for suspicion that the essential clement is to be found in that
something else, and not in what is said to be presumed from it.
With regard to the intent necessary to deceit, we need not stop
with the single instance which has been given. The law goes no
farther than to require proof either of the intent, or that the
other party was justified in inferring such intention. So that
the whole meaning of the requirement is, that the natural and
manifest tendency of the representation, under the known
circumstances, must have been to induce the opinion that it was
made with a view to action, and so to induce action on the faith
of it. The standard of what is called intent is thus really an
external standard of conduct under the known circumstances, and
the analysis of the criminal law holds good here.
Nor is this all. The law pursuing its course of specification, as
explained in the last Lecture, decides what is the tendency of
representations in certain cases,--as, for instance, that a horse
is sound at the time of making a [135] sale; or, in general, of
any statement of fact which it is known the other party intends
to rely on. Beyond these scientific rules lies the vague realm of
the jury.
The other moral element in deceit is knowledge that the statement
was false. With this I am not strictly concerned, because all
that is necessary is accomplished when the elements of risk are
reduced to action and knowledge. But it will aid in the general
object of showing that the tendency of the law everywhere is to
transcend moral and reach external standards, if this knowledge
of falsehood can be transmuted into a formula not necessarily
importing guilt, although, of course, generally accompanied by it
in fact. The moment we look critically at it, we find the moral
side shade away.
The question is, what known circumstances are enough throw the
risk of a statement upon him who makes it, if it induces another
man to act, and it turns out untrue. Now, it is evident that a
man may take the risk of his statement by express agreement, or
by an implied one which the law reads into his bargain. He may in
legal language warrant the truth of it, and if it is not true,
the law treats it as a fraud, just as much when he makes it fully
believing it, as when he knows that it is untrue, and means to
deceive. If, in selling a horse, the seller warranted him to be
only five years old, and in fact he was thirteen, the seller
could be sued for a deceit at common law, although he thought the
horse was only five. /1/ The common-law liability for the truth
of statements is, therefore, more extensive than the sphere of
actual moral fraud. But, again, it is enough in general if a
representation [136] is made recklessly, without knowing whether
it is true or false. Now what does "recklessly" mean. It does not
mean actual personal indifference to the truth of the statement.
It means only that the data for the statement were so far
insufficient that a prudent man could not have made it without
leading to the inference that he was indifferent. That is to say,
repeating an analysis which has been gone through with before, it
means that the law, applying a general objective standard,
determines that, if a man makes his statement on those data, he
is liable, whatever was the state of his mind, and although he
individually may have been perfectly free from wickedness in
making it.
Hence similar reasoning to that which has been applied already to
intent may be applied to knowledge of falsity. Actual knowledge
may often be easier to prove than that the evidence was
insufficient to warrant the statement, and when proved it
contains the lesser element. But as soon as the lesser element is
shown to be enough, it is shown that the law is ready to apply an
external or objective standard here also.
Courts of equity have laid down the doctrine in terms which are
so wholly irrespective of the actual moral condition of the
defendant as to go to an opposite extreme. It is said that "when
a representation in a matter of business is made by one man to
another calculated to induce him to adapt his conduct to it, it
is perfectly immaterial whether the representation is made
knowing it to be untrue, or whether it is made believing it to be
true, if, in fact, it was untrue." /1/
Perhaps the actual decisions could be reconciled on a [137]
narrower principle, but the rule just stated goes the length of
saying that in business matters a man makes every statement (of a
kind likely to be acted on) at his peril. This seems hardly
justifiable in policy. The moral starting point of liability in
general should never be forgotten, and the law cannot without
disregarding it hold a man answerable for statements based on
facts which would have convinced a wise and prudent man of their
truth. The public advantage and necessity of freedom in imparting
information, which privileges even the slander of a third person,
ought a fortiori, it seems to me, to privilege statements made at
the request of the party who complains of them.
The common law, at any rate, preserves the reference to morality
by making fraud the ground on which it goes. It does not hold
that a man always speaks at his peril. But starting from the
moral ground, it works out an external standard of what would be
fraudulent in the average prudent member of the community, and
requires every member at his peril to avoid that. As in other
cases, it is gradually accumulating precedents which decide that
certain statements under certain circumstances are at the peril
of the party who makes them.
The elements of deceit which throw the risk of his conduct upon a
party are these. First, making a statement of facts purporting to
be serious. Second, the known presence of another within hearing.
Third, known facts sufficient to warrant the expectation or
suggest the probability that the other party will act on the
statement. (What facts are sufficient has been specifically
determined by the courts in some instances; in others, no doubt,
the question would go to the jury on the principles heretofore
explained.) Fourth, the [138] falsehood of the statement. This
must be known, or else the known evidence concerning the matter
of the statement must be such as would not warrant belief
according to the ordinary course of human experience. (On this
point also the court may be found to lay down specific rules in
some cases. /1/)
I next take up the law of slander. It has often been said that
malice is one of the elements of liability, and the doctrine is
commonly stated in this way: that malice must exist, but that it
is presumed by law from the mere speaking of the words; that
again you may rebut this presumption of malice by showing that
the words were spoken under circumstances which made the
communication privileged,-- as, for instance, by a lawyer in the
necessary course of his argument, or by a person answering in
good faith to inquiries as to the character of a former servant,--
and then, it is said, the plaintiff may meet this defence in some
cases by showing that the words were spoken with actual malice.
All this sounds as if at least actual intent to cause the damage
complained of, if not malevolence, were at the bottom of this
class of wrongs. Yet it is not so. For although the use of the
phrase "malice" points as usual to an original moral standard,
the rule that it is presumed upon proof of speaking certain words
is equivalent to saying that the overt conduct of speaking those
words may be actionable whether the consequence of damage to the
plaintiff was intended or not. And this fails in with the general
theory, because the manifest tendency of slanderous words is to
harm the person of whom they are spoken. Again, the real
substance of the defence is not that the damage [139] was not
intended, -- that would be no defence at all; but that, whether
it was intended or not,--that is, even if the defendant foresaw
it and foresaw it with pleasure,--the manifest facts and
circumstances under which he said it were such that the law
considered the damage to the plaintiff of less importance than
the benefit of free speaking.
It is more difficult to apply the same analysis to the last stage
of the process, but perhaps it is not impossible. It is said that
the plaintiff may meet a case of privilege thus made out on the
part of the defendant, by proving actual malice, that is, actual
intent to cause the damage complained of. But how is this actual
malice made out? It is by showing that the defendant knew the
statement which he made was false, or that his untrue statements
were grossly in excess of what the occasion required. Now is it
not very evident that the law is looking to a wholly different
matter from the defendant's intent? The fact that the defendant
foresaw and foresaw with pleasure the damage to the plaintiff, is
of no more importance in this case than it would be where the
communication was privileged. The question again is wholly a
question of knowledge, or other external standard. And what makes
even knowledge important? It is that the reason for which a man
is allowed in the other instances to make false charges against
his neighbors is wanting. It is for the public interest that
people should be free to give the best information they can under
certain circumstances without fear, but there is no public
benefit in having lies told at any time; and when a charge is
known to be false, or is in excess of what is required by the
occasion, it is not necessary to make that charge in order to
speak freely, and [140] therefore it falls under the ordinary
rule, that certain charges are made at the party's peril in case
they turn out to be false, whether evil consequences were
intended or not. The defendant is liable, not because his intent
was evil, but because he made false charges without excuse.
It will be seen that the peril of conduct here begins farther
back than with deceit, as the tendency of slander is more
universally harmful. There must be some concomitant
circumstances. There must at least be a human being in existence
whom the statement designates. There must be another human being
within hearing who understands the statement, and the statement
must be false. But it is arguable that the latter of these facts
need not be known, as certainly the falsity of the charge need
not be, and that a man must take the risk of even an idle
statement being heard, unless he made it under known
circumstances of privilege. It would be no great curtailment of
freedom to deny a man immunity in attaching a charge of crime to
the name of his neighbor, even when he supposes himself alone.
But it does not seem clear that the law would go quite so far as
that.
The next form of liability is comparatively insignificant. I mean
the action for malicious prosecution. A man may recover damages
against another for maliciously and without probable cause
instituting a criminal, or, in some cases, a civil prosecution
against him upon a false charge. The want of probable cause
refers, of course, only to the state of the defendant's
knowledge, not to his intent. It means the absence of probable
cause in the facts known to the defendant when he instituted the
suit. But the standard applied to the defendant's consciousness
is external to it. The question is not whether he thought the
[141] facts to constitute probable cause, but whether the court
thinks they did.
Then as to malice. The conduct of the defendant consists in
instituting proceedings on a charge which is in fact false, and
which has not prevailed. That is the root of the whole matter. If
the charge was true, or if the plaintiff has been convicted, even
though he may be able now to prove that he was wrongly convicted,
the defendant is safe, however great his malice, and however
little ground he had for his charge.
Suppose, however, that the charge is false, and does not prevail.
It may readily be admitted that malice did originally mean a
malevolent motive, an actual intent to harm the plaintiff by
making a false charge. The legal remedy here, again, started from
the moral basis, the occasion for it, no doubt, being similar to
that which gave rise to the old law of conspiracy, that a man's
enemies would sometimes seek his destruction by setting the
criminal law in motion against him. As it was punishable to
combine for such a purpose, it was concluded, with some
hesitation, that, when a single individual wickedly attempted the
same thing, he should be liable on similar grounds. /1/ I must
fully admit that there is weighty authority to the effect that
malice in its ordinary sense is to this day a distinct fact to be
proved and to be found by the jury.
But this view cannot be accepted without hesitation. It is
admitted that, on the one side, the existence of probable cause,
believed in, is a justification notwithstanding malice; /2/ that,
on the other, "it is not enough to show [142] that the case
appeared sufficient to this particular party, but it must be
sufficient to induce a sober, sensible and discreet person to act
upon it, or it must fail as a justification for the proceeding
upon general grounds." /1/ On the one side, malice alone will not
make a man liable for instituting a groundless prosecution; on
the other, his justification will depend, not on his opinion of
the facts, but on that of the court. When his actual moral
condition is disregarded to this extent, it is a little hard to
believe that the existence of an improper motive should be
material. Yet that is what malice must mean in this case, if it
means anything. /2/ For the evil effects of a successful
indictment are of course intended by one who procures all other
to be indicted. I cannot but think that a jury would be told that
knowledge or belief that the charge was false at the time of
making it was conclusive evidence of malice. And if so, on
grounds which need not be repeated, malice is not the important
thing, but the facts known to the defendant.
Nevertheless, as it is obviously treading on delicate ground to
make it actionable to set the regular processes of the law in
motion, it is, of course, entirely possible to say that the
action shall be limited to those cases where the charge was
preferred from improper motives, at least if the defendant
thought that there was probable cause. Such a limitation would
stand almost alone in the law of civil liability. But the nature
of the wrong is peculiar, and, moreover, it is quite consistent
with the theory of liability here advanced that it should be
confined in any given instance to actual wrong-doing in a moral
sense.
The only other cause of action in which the moral condition [143]
of the defendant's consciousness might seem to be important is
conspiracy. The old action going by that name was much like
malicious prosecution, and no doubt was originally confined to
cases where several persons had conspired to indict another from
malevolent motives. But in the modern action on the case, where
conspiracy is charged, the allegation as a rule only means that
two or more persons were so far co-operating in their acts that
the act of any one was the act of all. Generally speaking, the
liability depends not on the co-operation or conspiring, but on
the character of the acts done, supposing them all to be done by
one man, or irrespective of the question whether they were done
by one or several. There may be cases, to be sure, in which the
result could not be accomplished, or the offence could not
ordinarily be proved, without a combination of several; as, for
instance, the removal of a teacher by a school board. The
conspiracy would not affect the case except in a practical way,
but the question would be raised whether, notwithstanding the
right of the board to remove, proof that they were actuated by
malevolence would not make a removal actionable. Policy, it might
be said, forbids going behind their judgment, but actual evil
motives coupled with the absence of grounds withdraw this
protection, because policy, although it does not require them to
take the risk of being right, does require that they should judge
honestly on the merits. /1/
Other isolated instances like the last might, perhaps, be found
in different parts of the law, in which actual malevolence would
affect a man's liability for his conduct. Again, in trover for
the conversion of another's chattel, where the dominion exercised
over it was of a slight and ambiguous [144] nature, it has been
said that the taking must be "with the intent of exercising an
ownership over the chattel inconsistent with the real owner's
right of possession." /1/ But this seems to be no more than a
faint shadow of the doctrine explained with regard to larceny,
and does not require any further or special discussion. Trover is
commonly understood to go, like larceny, on the plaintiff's being
deprived of his property, although in practice every possessor
has the action, and, generally speaking, the shortest wrongful
withholding of possession is a conversion.
Be the exceptions more or less numerous, the general purpose of
the law of torts is to secure a man indemnity against certain
forms of harm to person, reputation, or estate, at the hands of
his neighbors, not because they are wrong, but because they are
harms. The true explanation of the reference of liability to a
moral standard, in the sense which has been explained, is not
that it is for the purpose of improving men's hearts, but that it
is to give a man a fair chance to avoid doing the harm before he
is held responsible for it. It is intended to reconcile the
policy of letting accidents lie where they fall, and the
reasonable freedom of others with the protection of the
individual from injury.
But the law does not even seek to indemnify a man from all harms.
An unrestricted enjoyment of all his possibilities would
interfere with other equally important enjoyments on the part of
his neighbors. There are certain things which the law allows a
man to do, notwithstanding the fact that he foresees that harm to
another will follow from them. He may charge a man with crime if
the charge is true. He may establish himself in business where he
foresees that [145] of his competition will be to diminish the
custom of another shopkeeper, perhaps to ruin him. He may a
building which cuts another off from a beautiful prospect, or he
may drain subterranean waters and thereby drain another's well;
and many other cases might be put.
As any of these things may be done with foresight of their evil
consequences, it would seem that they might be done with intent,
and even with malevolent intent, to produce them. The whole
argument of this Lecture and the preceding tends to this
conclusion. If the aim of liability is simply to prevent or
indemnify from harm so far as is consistent with avoiding the
extreme of making a man answer for accident, when the law permits
the harm to be knowingly inflicted it would be a strong thing if
the presence of malice made any difference in its decisions. That
might happen, to be sure, without affecting the general views
maintained here, but it is not to be expected, and the weight of
authority is against it.
As the law, on the one hand, allows certain harms to be inflicted
irrespective of the moral condition of him who inflicts them, so,
at the other extreme, it may on grounds of policy throw the
absolute risk of certain transactions on the person engaging in
them, irrespective of blameworthiness in any sense. Instances of
this sort have been mentioned in the last Lecture, /1/ and will
be referred to again.
Most liabilities in tort lie between these two extremes, and are
founded on the infliction of harm which the defendant had a
reasonable opportunity to avoid at the time of the acts or
omissions which were its proximate cause. Rut as fast as specific
rules are worked out in place of the [146] vague reference to the
conduct of the average man, they range themselves alongside of
other specific rules based on public policy, and the grounds from
which they spring cease to be manifest. So that, as will be seen
directly, rules which seem to lie outside of culpability in any
sense have sometimes been referred to remote fault, while others
which started from the general notion of negligence may with
equal ease be referred to some extrinsic ground of policy.
Apart from the extremes just mentioned, it is now easy to see how
the point at which a man's conduct begins to be at his own peril
is generally fixed. When the principle is understood on which
that point is determined by the law of torts, we possess a common
ground of classification, and a key to the whole subject, so far
as tradition has not swerved the law from a consistent theory. It
has been made pretty clear from what precedes, that I find that
ground in knowledge of circumstances accompanying an act or
conduct indifferent but for those circumstances.
But it is worth remarking, before that criterion is discussed,
that a possible common ground is reached at the preceding step in
the descent from malice through intent and foresight. Foresight
is a possible common denominator of wrongs at the two extremes of
malice and negligence. The purpose of the law is to prevent or
secure a man indemnity from harm at the hands of his neighbors,
so far as consistent with other considerations which have been
mentioned, and excepting, of course, such harm as it permits to
be intentionally inflicted. When a man foresees that harm will
result from his conduct, the principle which exonerates him from
accident no longer applies, and he is liable. But, as has been
shown, he is bound to foresee [147] whatever a prudent and
intelligent man would have foreseen, and therefore he is liable
for conduct from which such a man would have foreseen that harm
was liable to follow.
Accordingly, it would be possible to state all cases of
negligence in terms of imputed or presumed foresight. It would be
possible even to press the presumption further, applying the very
inaccurate maxim, that every man is presumed to intend the
natural consequences of his own acts; and this mode of expression
will, in fact, be found to have been occasionally used, /1/ more
especially in the criminal law, where the notion of intent has a
stronger foothold. /2/ The latter fiction is more remote and less
philosophical than the former; but, after all, both are equally
fictions. Negligence is not foresight, but precisely the want of
it; and if foresight were presumed, the ground of the
presumption, and therefore the essential element, would be the
knowledge of facts which made foresight possible.
Taking knowledge, then, as the true starting-point, the next
question is how to determine the circumstances necessary to be
known in any given case in order to make a man liable for the
consequences of his act. They must be such as would have led a
prudent man to perceive danger, although not necessarily to
foresee the specific harm. But this is a vague test. How is it
decided what those circumstances are? The answer must be, by
experience.
But there is one point which has been left ambiguous in the
preceding Lecture and here, and which must be touched upon. It
has been assumed that conduct which [148] the man of ordinary
intelligence would perceive to be dangerous under the
circumstances, would be blameworthy if pursued by him. It might
not be so, however. Suppose that, acting under the threats of
twelve armed men, which put him in fear of his life, a man enters
another's close and takes a horse. In such a case, he actually
contemplates and chooses harm to another as the consequence of
his act. Yet the act is neither blameworthy nor punishable. But
it might be actionable, and Rolle, C. J. ruled that it was so in
Gilbert v. Stone. /1/ If this be law, it goes the full length of
deciding that it is enough if the defendant has had a chance to
avoid inflicting the harm complained of. And it may well be
argued that, although he does wisely to ransom his life as he
best may, there is no reason why he should be allowed to
intentionally and permanently transfer his misfortunes to the
shoulders of his neighbors.
It cannot be inferred, from the mere circumstance that certain
conduct is made actionable, that therefore the law regards it as
wrong, or seeks to prevent it. Under our mill acts a man has to
pay for flowing his neighbor's lands, in the same way that he has
to pay in trover for converting his neighbor's goods. Yet the law
approves and encourages the flowing of lands for the erection of
mills.
Moral predilections must not be allowed to influence our minds in
settling legal distinctions. If we accept the test of the
liability alone, how do we distinguish between trover and the
mill acts? Or between conduct which is prohibited, and that which
is merely taxed? The only distinction which I can see is in the
difference of the collateral consequences attached to the two
classes of conduct. In the one, the maxim in pari delicto potior
est [149] conditio defendentis, and the invalidity of contracts
contemplating it, show that the conduct is outside the protection
of the law. In the other, it is otherwise. /1/ This opinion is
confirmed by the fact, that almost the only cases in which the
distinction between prohibition and taxation comes up concern the
application of these maxims.
But if this be true, liability to an action does not necessarily
import wrong-doing. And this may be admitted without at all
impairing the force of the argument in the foregoing Lecture,
which only requires that people should not be made to pay for
accidents which they could not have avoided.
It is doubtful, however, whether the ruling of Chief Justice
Rolle would now be followed. The squib case, Scott v. Shepherd,
and the language of some text-books, are more or less opposed to
it. /2/ If the latter view is law, then an act must in general
not only be dangerous, but one which would be blameworthy on the
part of the average man, in order to make the actor liable. But,
aside from such exceptional cases as Gilbert v. Stone, the two
tests agree, and the difference need not be considered in what
follows.
I therefore repeat, that experience is the test by which it is
decided whether the degree of danger attending given conduct
under certain known circumstances is sufficient to throw the risk
upon the party pursuing it.
For instance, experience shows that a good many guns supposed to
be unloaded go off and hurt people. The ordinarily intelligent
and prudent member of the community [150] would foresee the
possibility of danger from pointing a gun which he had not
inspected into a crowd, and pulling the trigger, although it was
said to be unloaded. Hence, it may very properly be held that a
man who does such a thing does it at his peril, and that, if
damage ensues, he is answerable for it. The co-ordinated acts
necessary to point a gun and pull a trigger, and the intent and
knowledge shown by the co-ordination of those acts, are all
consistent with entire blamelessness. They threaten harm to no
one without further facts. But the one additional circumstance of
a man in the line and within range of the piece makes the conduct
manifestly dangerous to any one who knows the fact. There is no
longer any need to refer to the prudent man, or general
experience. The facts have taught their lesson, and have
generated a concrete and external rule of liability. He who snaps
a cap upon a gun pointed in the direction of another person,
known by him to be present, is answerable for the consequences.
The question what a prudent man would do under given
circumstances is then equivalent to the question what are the
teachings of experience as to the dangerous character of this or
that conduct under these or those circumstances; and as the
teachings of experience are matters of fact, it is easy to see
why the jury should be consulted with regard to them. They are,
however, facts of a special and peculiar function. Their only
bearing is on the question, what ought to have been done or
omitted under the circumstances of the case, not on what was
done. Their function is to suggest a rule of conduct.
Sometimes courts are induced to lay down rules by facts of a more
specific nature; as that the legislature passed a certain
statute, and that the case at bar is within [151] the fair
meaning of its words; or that the practice of a specially
interested class, or of the public at large, has generated a rule
of conduct outside the law which it is desirable that the courts
should recognize and enforce. These are matters of fact, and have
sometimes been pleaded as such. But as their only importance is,
that, if believed, they will induce the judges to lay down a rule
of conduct, or in other words a rule of law, suggested by them,
their tendency in most instances is to disappear as fast as the
rules suggested by them become settled. /1/ While the facts are
uncertain, as they are still only motives for decision upon the
law,--grounds for legislation, so to speak,--the judges may
ascertain them in any way which satisfies their conscience. Thus,
courts recognize the statutes of the jurisdiction judicially,
although the laws of other jurisdictions, with doubtful wisdom,
are left to the jury. /2/ They may take judicial cognizance of a
custom of merchants. /3/ In former days, at least, they might
inquire about it in pais after a demurrer. /4/ They may act on
the statement of a special jury, as in the time of Lord Mansfield
and his successors, or upon the finding of a common jury based on
the testimony of witnesses, as is the practice to-day in this
country. But many instances will be found the text-books which
show that, when the facts are ascertained, they soon cease to be
referred to, and give place to a rule of law.
[152] The same transition is noticeable with regard to the
teachings of experience. There are many cases, no doubt, in which
the court would lean for aid upon a jury; but there are also many
in which the teaching has been formulated in specific rules.
These rules will be found to vary considerably with regard to the
number of concomitant circumstances necessary to throw the peril
of conduct otherwise indifferent on the actor. As the
circumstances become more numerous and complex, the tendency to
cut the knot with the jury becomes greater. It will be useful to
follow a line of cases up from the simple to the more
complicated, by way of illustration. The difficulty of
distinguishing rules based on other grounds of policy from those
which have been worked out in the field of negligence, will be
particularly noticed.
In all these cases it will be found that there has been a
voluntary act on the part of the person to be charged. The reason
for this requirement was shown in the foregoing Lecture.
Unnecessary though it is for the defendant to have intended or
foreseen the evil which he has caused, it is necessary that he
should have chosen the conduct which led to it. But it has also
been shown that a voluntary act is not enough, and that even a
co-ordinated series of acts or conduct is often not enough by
itself. But the co-ordination of a series of acts shows a further
intent than is necessarily manifested by any single act, and
sometimes proves with almost equal certainty the knowledge of one
or more concomitant circumstances. And there are cases where
conduct with only the intent and knowledge thus necessarily
implied is sufficient to throw the risk of it on the actor.
For instance, when a man does the series of acts called [153]
walking, it is assumed for all purposes of responsibility that he
knows the earth is under his feet. The conduct per se is
indifferent, to be sure. A man may go through the motions of
walking without legal peril, if he chooses to practise on a
private treadmill; but if he goes through the same motions on the
surface of the earth, it cannot be doubted that he knows that the
earth is there. With that knowledge, he acts at his peril in
certain respects. If he crosses his neighbor's boundary, he is a
trespasser. The reasons for this strict rule have been partially
discussed in the last Lecture. Possibly there is more of history
or of past or present notions of policy its explanation than is
there suggested, and at any rate I do not care to justify the
rule. But it is intelligible. A man who walks knows that he is
moving over the surface of the earth, he knows that he is
surrounded by private estates which he has no right to enter, and
he knows that his motion, unless properly guided, will carry him
into those estates. He is thus warned, and the burden of his
conduct is thrown upon himself.
But the act of walking does not throw the peril of all possible
consequences upon him. He may run a man down in the street, but
he is not liable for that unless he does it negligently. Confused
as the law is with cross-lights of tradition, and hard as we may
find it to arrive at perfectly satisfactory general theory, it
does distinguish in a pretty sensible way, according to the
nature and degree of the different perils incident to a given
situation.
From the simple case of walking we may proceed to the more
complex cases of dealings with tangible objects of property. It
may be said that, generally speaking, a man meddles with such
things at his own risk. It does not [154] matter how honestly he
may believe that they belong to himself, or are free to the
public, or that he has a license from the owner, or that the case
is one in which the law has limited the rights of ownership; he
takes the chance of how the fact may turn out, and if the fact is
otherwise than as he supposes, he must answer for his conduct. As
has been already suggested, he knows that he is exercising more
or less dominion over property, or that he is injuring it; he
must make good his right if it is challenged.
Whether this strict rule is based on the common grounds of
liability, or upon some special consideration of past or present
policy, policy has set some limits to it, as was mentioned in the
foregoing Lecture.
Another case of conduct which is at the risk of the party without
further knowledge than it necessarily imports, is the keeping of
a tiger or bear, or other animal of a species commonly known to
be ferocious. If such an animal escapes and does damage, the
owner is liable simply on proof that he kept it. In this instance
the comparative remoteness of the moment of choice in the line of
causation from the effect complained of, will be particularly
noticed. Ordinary cases of liability arise out of a choice which
was the proximate cause of the harm upon which the action is
founded. But here there is usually no question of negligence in
guarding the beast. It is enough in most, if not in all cases,
that the owner has chosen to keep it. Experience has shown that
tigers and bears are alert to find means of escape, and that, if
they escape, they are very certain to do harm of a serious
nature. The possibility of a great danger has the same effect as
the probability of a less one, and the law throws the risk of
[155] the venture on the person who introduces the peril into the
community.
This remoteness of the opportunity of choice goes far to show
that this risk is thrown upon the owner for other reasons than
the ordinary one of imprudent conduct. It has been suggested that
the liability stood upon remote inadvertence. /1/ But the law
does not forbid a man to keep a menagerie, or deem it in any way
blameworthy. It has applied nearly as strict a rule to dealings
which are even more clearly beneficial to the community than a
show of wild beasts.
This seems to be one of those cases where the ground of liability
is to be sought in policy coupled with tradition, rather than in
any form of blameworthiness, or the existence of such a chance to
avoid doing the harm as a man is usually allowed. But the fact
that remote inadvertence has been suggested for an explanation
illustrates what has been said about the difficulty of deciding
whether a given rule is founded on special grounds, or has been
worked out within the sphere of negligence, when once a special
rule has been laid down.
It is further to be noticed that there is no question of the
defendant's knowledge of the nature of tigers, although without
that knowledge he cannot be said to have intelligently chosen to
subject the community to danger. Here again even in the domain of
knowledge the law applies its principle of averages. The fact
that tigers and bears are dangerous is so generally known, that
a man who keeps them is presumed to know their peculiarities. In
other words, he does actually know that he has an animal with
certain teeth, claws, and so forth, and he must find out the
[156] rest of what an average member of the community would know,
at his peril.
What is true as to damages in general done by ferocious wild
beasts is true as to a particular class of damages done by
domestic cattle, namely, trespasses upon another's land. This has
been dealt with in former Lectures, and it is therefore needless
to do more than to recall it here, and to call attention to the
distinction based on experience and policy between damage which
is and that which is not of a kind to be expected. Cattle
generally stray and damage cultivated land when they get upon it.
They only exceptionally hurt human beings.
I need not recur to the possible historical connection of either
of these last forms of liability with the noxoe deditio, because,
whether that origin is made out or not, the policy of the rule
has been accepted as sound, and carried further in England within
the last few years by the doctrine that a man who brings upon his
land and keeps there anything likely to do mischief if it escape,
must keep it in at his peril. /1/ The strictness of this
principle will vary in different jurisdictions, as the balance
varies between the advantages to the public and the dangers to
individuals from the conduct in question. Danger of harm to
others is not the only thing to be considered, as has been said
already. The law allows some harms to be intentionally inflicted,
and a fortiori some risks to be intentionally run. In some
Western States a man is not required to keep his cattle fenced
in. Some courts have refused to follow Rylands v. Fletcher. /2/
On the other hand, the principle has been applied to artificial
[157] reservoirs of water, to cesspools, to accumulations of snow
and ice upon a building by reason of the form of its roof, and to
party walls. /1/
In these cases, as in that of ferocious animals, it is no excuse
that the defendant did not know, and could not have found out,
the weak point from which the dangerous object escaped. The
period of choice was further back, and, although he was not to
blame, he was bound at his peril to know that the object was a
continual threat to his neighbors, and that is enough to throw
the risk of the business on him.
I now pass to cases one degree more complex than those so far
considered. In these there must be another concomitant
circumstance known to the party in addition to those of which the
knowledge is necessarily or practically proved by his conduct.
The cases which naturally suggest themselves again concern
animals. Experience as interpreted by the English law has shown
that dogs, rams, and bulls are in general of a tame and mild
nature, and that, if any one of them does by chance exhibit a
tendency to bite, butt, or gore, it is an exceptional phenomenon.
Hence it is not the law that a man keeps dogs, rams, bulls, and
other like tame animals at his peril as to the personal damages
which they may inflict, unless he knows or has notice that the
particular animal kept by him has the abnormal tendency which
they do sometimes show. The law has, however, been brought a
little nearer to actual experience by statute in many
jurisdictions.
Now let us go one step farther still. A man keeps an unbroken and
unruly horse, knowing it to be so. That is not enough to throw
the risk of its behavior on him. The [158] tendency of the known
wildness is not dangerous generally, but only under particular
circumstances. Add to keeping, the attempt to break the horse;
still no danger to the public is disclosed. But if the place
where the owner tries to break it is a crowded thoroughfare, the
owner knows an additional circumstance which, according to common
experience, makes this conduct dangerous, and therefore must take
the risk of what harm may be done. /1/ On the other hand, if a
man who was a good rider bought a horse with no appearance of
vice and mounted it to ride home, there would be no such apparent
danger as to make him answerable if the horse became unruly and
did damage. /2/ Experience has measured the probabilities and
draws the line between the two cases.
Whatever may be the true explanation of the rule applied to
keeping tigers, or the principle of Rylands v. Fletcher, in the
last cases we have entered the sphere of negligence, and, if we
take a case lying somewhere between the two just stated, and add
somewhat to the complexity of the circumstances, we shall find
that both conduct and standard would probably be left without
much discrimination to the jury, on the broad issue whether the
defendant had acted as a prudent man would have done under the
circumstances.
As to wrongs called malicious or intentional it is not necessary
to mention the different classes a second time, and to find them
a place in this series. As has been seen, they vary in the number
of circumstances which must be known. Slander is conduct which is
very generally at the risk of [159] the speaker, because, as
charges of the kind with which it deals are manifestly
detrimental, the questions which practically arise for the most
part concern the defence of truth or privilege. Deceit requires
more, but still simple facts. Statements do not threaten the harm
in question unless they are made under such circumstances as to
naturally lead to action, and are made on insufficient grounds.
It is not, however, without significance, that certain wrongs are
described in language importing intent. The harm in such cases is
most frequently done intentionally, if intent to cause a certain
harm is shown, there need to prove knowledge of facts which made
it that harm would follow. Moreover, it is often much easier to
prove intent directly, than to prove the knowledge which would
make it unnecessary.
The cases in which a man is treated as the responsible cause of a
given harm, on the one hand, extend beyond those in which his
conduct was chosen in actual contemplation of that result, and in
which, therefore, he may be to have chosen to cause that harm;
and, on the other hand, they do not extend to all instances where
the damages would not have happened but for some remote election
his part. Generally speaking, the choice will be found to have
extended further than a simple act, and to co-ordinated acts into
conduct. Very commonly it will have extended further still, to
some external consequence. But generally, also, it will be found
to have stopped short of the consequence complained of.
The question in each case is whether the actual choice, or, in
other words, the actually contemplated result, was near enough to
the remoter result complained of to throw the peril of it upon
the actor.
[160] Many of the cases which have been put thus far are cases
where the proximate cause of the loss was intended to be produced
by the defendant. But it will be seen that the same result may be
caused by a choice at different points. For instance, a man is
sued for having caused his neighbor's house to burn down. The
simplest case is, that he actually intended to burn it down. If
so, the length of the chain of physical causes intervening is of
no importance, and has no bearing on the case.
But the choice may have stopped one step farther back. The
defendant may have intended to light a fire on his own land, and
may not have intended to burn the house. Then the nature of the
intervening and concomitant physical causes becomes of the
highest importance. The question will be the degree of danger
attending the contemplated (and therefore chosen) effect of the
defendant's conduct under the circumstances known to him. If this
was very plain and very great, as, for instance, if his conduct
consisted in lighting stubble near a haystack close to the house,
and if the manifest circumstances were that the house was of
wood, the stubble very dry, and the wind in a dangerous quarter,
the court would probably rule that he was liable. If the
defendant lighted an ordinary fire in a fireplace in an adjoining
house, having no knowledge that the fireplace was unsafely
constructed, the court would probably rule that he was not
liable. Midway, complicated and doubtful cases would go to the
jury.
But the defendant may not even have intended to set the fire, and
his conduct and intent may have been simply to fire a gun, or,
remoter still, to walk across a room, in doing which he
involuntarily upset a bottle of acid. So that cases may go to the
jury by reason of the remoteness [161] of the choice in the
series of events, as well as because of the complexity of the
circumstances attending the act or conduct. The difference is,
perhaps, rather dramatic than substantial.
But the philosophical analysis of every wrong begins by
determining what the defendant has actually chosen, that is to
say, what his voluntary act or conduct has been, and what
consequences he has actually contemplated as flowing from them,
and then goes on to determine what dangers attended either the
conduct under the known circumstances, or its contemplated
consequence under the contemplated circumstances.
Take a case like the glancing of Sir Walter Tyrrel's arrow. If an
expert marksman contemplated that the arrow would hit a certain
person, cadit qucoestio. If he contemplated that it would glance
in the direction of another person, but contemplated no more than
that, in order to judge of his liability we must go to the end of
his fore-sight, and, assuming the foreseen event to happen,
consider what the manifest danger was then. But if no such event
was foreseen, the marksman must be judged by the circumstances
known to him at the time of shooting.
The theory of torts may be summed up very simply. At the two
extremes of the law are rules determined by policy without
reference of any kind to morality. Certain harms a man may
inflict even wickedly; for certain others he must answer,
although his conduct has been prudent and beneficial to the
community.
But in the main the law started from those intentional wrongs
which are the simplest and most pronounced cases, as well as the
nearest to the feeling of revenge which leads to self-redress. It
thus naturally adopted the vocabulary, [162] and in some degree
the tests, of morals. But as the law has grown, even when its
standards have continued to model themselves upon those of
morality, they have necessarily become external, because they
have considered, not the actual condition of the particular
defendant, but whether his conduct would have been wrong in the
fair average member of the community, whom he is expected to
equal at his peril.
In general, this question will be determined by considering the
degree of danger attending the act or conduct under the known
circumstances. If there is danger that harm to another will
follow, the act is generally wrong in the sense of the law.
But in some cases the defendant's conduct may not have been
morally wrong, and yet he may have chosen to inflict the harm, as
where he has acted in fear of his life. In such cases he will be
liable, or not, according as the law makes moral blameworthiness,
within the limits explained above, the ground of liability, or
deems it sufficient if the defendant has had reasonable warning
of danger before acting. This distinction, however, is generally
unimportant, and the known tendency of the act under the known
circumstances to do harm may be accepted as the general test of
conduct.
The tendency of a given act to cause harm under given
circumstances must be determined by experience. And experience
either at first hand or through the voice of the jury is
continually working out concrete rules, which in form are still
more external and still more remote from a reference to the moral
condition of the defendant, than even the test of the prudent man
which makes the first stage of the division between law and
morals. It does this in the domain [163] of wrongs described as
intentional, as systematically as in those styled unintentional
or negligent.
But while the law is thus continually adding to its specific
rules, it does not adopt the coarse and impolitic principle that
a man acts always at his peril. On the contrary, its concrete
rules, as well as the general questions addressed to the jury,
show that the defendant must have had at least a fair chance of
avoiding the infliction of harm before he becomes answerable for
such a consequence of his conduct. And it is certainly arguable
that even a fair chance to avoid bringing harm to pass is not
sufficient to throw upon a person the peril of his conduct,
unless, judged by average standards, he is also to blame for what
he does.