ing it。
We have more difficult matter to deal with when we turn to the pleadings and precedents in trespass。 The declaration says nothing of negligence； and it is clear that the damage need not have been intended。 The words vi et armis and contra pacere； which might seem to imply intent； are supposed to have been inserted merely to give jurisdiction to the king's court。 Glanvill says it belongs to the sheriff； in case of neglect on the part of lords of franchise； to take cognizance of melees； blows； and even wounds； unless the accuser add a charge of breach of the king's peace （nisi accusator adjiciat de pace Domini Regis infracta）。 /1/ Reeves observes； 〃In this distinction between the sheriff's jurisdiction and that of the king； we see the reason of the allegation in modern indictments and writs； vi et amis； of 'the king's crown and dignity；' 'the king's ＇85＇ peace；' and 'the peace；'this last expression being sufficient； after the peace of the sheriff had ceased to be distinguished as a separate jurisdiction。〃 /1/
Again； it might be said that； if the defendant's intent or neglect was essential to his liability； the absence of both would deprive his act of the character of a trespass； and ought therefore to be admissible under the general issue。 But it is perfectly well settled at common law that 〃Not guilty〃 only denies the act。 /2/
Next comes the argument from authority。 I will begin with an early and important case。 /3/ It was trespass quare clausum。 The defendant pleaded that he owned adjoining land； upon which was a thorn hedge； that he cut the thorns； and that they； against his will （ipso invito）； fell on the plaintiff's land； and the defendant went quickly upon the same； and took them； which was the trespass complained of。 And on demurrer judgment was given for the plaintiff。 The plaintiff's counsel put cases which have been often repeated。 One of them； Fairfax； said： 〃There is a diversity between an act resulting in a felony； and one resulting in a trespass 。。。。 If one is cutting trees； and the boughs fall on a man and wound him； in this case he shall have an action of trespass； &c。； and also； sir； if one is shooting at butts； and his bow shakes in his hands； and kills a man； ipso invito； it is no felony； as has been said； ＇86＇ &c。； but if he wounds one by shooting； he shall have a good action of trespass against him； and yet the shooting was lawful； &c。； and the wrong which the other receives was against his will； &c。； and so here； &c。〃 Brian； another counsel； states the whole doctrine； and uses equally familiar illustrations。 〃When one does a thing； he is bound to do it in such a way that by his act no prejudice or damage shall be done to &c。 As if I am building a house； and when the timber is being put up a piece of timber falls on my neighbor's house and breaks his house； he shall have a good action； &c。； and yet the raising of the house was lawful； and the timber fell； me invito； &c。 And so if one assaults me and I cannot escape； and I in self…defence lift my stick to strike him； and in lifting it hit a man who is behind me； in this case he shall have an action against me； yet my raising my stick was
lawful in self…defence； and I hit him； me invito； &c。； and so here； &C。〃
〃Littleton； J。 to the same intent； and if a man is damaged he ought to be recompensed 。。。。 If your cattle come on my land and eat my grass； notwithstanding you come freshly and drive them out； you ought to make amends for what your cattle have done； be it more or less 。。。。 And； sir； if this should be law that he might enter and take the thorns； for the same reason； if he cut a large tree； he might come with his wagons and horses to carry the trees off； which is not reason； for perhaps he has corn or other crops growing； &c。； and no more here； for the law is all one in great things and small 。。。。 Choke； C。 J。 to the same intent； for when the principal thing was not lawful； that which depends upon it was not lawful； for when he cut the thorns and they fell on my land； ＇87＇ this falling was not lawful； and therefore his coming to take them out was not lawful。 As to what was said about their falling in ipso invito； that is no plea； but he ought to show that he could not do it in any other way； or that he did all that was in his power to keep them out。〃
Forty years later； /1/ the Year Books report Rede； J。 as adopting the argument of Fairfax in the last case。 In trespass； he says； 〃the intent cannot be construed； but in felony it shall be。 As when a man shoots at butts and kills a man； it is not felony et il ser come n'avoit l'entent de luy tuer； and so of a tiler on a house who with a stone kills a man unwittingly； it is not felony。 /2/ But when a man shoots at the butts and wounds a man； though it is against his will； he shall be called a trespasser against his intent。〃
There is a series of later shooting cases； Weaver v。 Ward； /3/ Dickenson v。 Watson； /4/ and Underwood v。 Hewson； /5/ followed by the Court of Appeals of New York in Castle v。 Duryee； /6/ in which defences to the effect that the damage was done accidentally and by misfortune； and against the will of the defendant； were held insufficient。
In the reign of Queen Elizabeth it was held that where a man with a gun at the door of his house shot at a fowl； and thereby set fire to his own house and to the house of his neighbor； he was liable in an action on the case generally； the declaration not being on the custom of the realm； ＇88＇ 〃viz。 for negligently keeping his fire。〃 〃For the injury is the same； although this mischance was not by a common negligence； but by misadventure。〃 /1/
The above…mentioned instances of the stick and shooting at butts became standard illustrations； they are repeated by Sir Thomas Raymond； in Bessey v。 Olliot； /2/ by Sir William Blackstone； in the famous squib case； /3/ and by other judges； and have become familiar through the textbooks。 Sir T。 Raymond； in the above case； also repeats the thought and almost the words of Littleton； J。； which have been quoted； and says further： 〃In all civil acts the law doth not so much regard the intent of the actor； as the loss and damage of the party suffering。〃 Sir William Blackstone also adopts a phrase from Dickenson v。 Watson； just cited： 〃Nothing but inevitable necessity〃 is a justification。 So Lord Ellenborough； in Leame v。 Bray： /4/ 〃If the injury were received from the personal act of another； it was deemed sufficient to make it trespass〃； or； according to the more frequently quoted language of Grose； J。； in the same case： 〃Looking into all the cases from the Year Book in the 21 H。 VII。 down to the latest decision on the subject； I find the principle to be； that if the injury be done by the act of the party himself at the time； or he be the immediate cause of it； though it happen accidentally or by misfortune； yet he is answerable in trespass。〃 Further citations are deemed unnecessary。
In spite； however； of all the arguments which may be ＇89＇ urged for the rule that a man acts at his peril； it has been rejected by very eminent courts； even under the old forms of action。 In view of this fact； and of the further circumstance that； since the old forms have been abolished； the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent； probably many lawyers would be surprised that any one should think it worth while to go into the present discussion。 Such is the natural impression to be derived from daily practice。 But even if the doctrine under consideration had no longer any followers； which is not the case； it would be well to have something more than daily practice to sustain our views upon so fundamental a question； as it seems to me at least； the true principle is far from being articulately grasped by all who are interested in it； and can only be arrived at after a careful analysis of what has been thought hitherto。 It might be thought enough to cite the decisions opposed to the rule of absolute responsibility； and to show that such a rule is inconsistent with admitted doctrines and sound policy。 But we may go further with profit； and inquire whether there are not strong grounds for thinking that the common law has never known such a rule； unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction。 Conciliating the attention of those who； contrary to most modern practitioners； still adhere to the strict doctrine； by reminding them once more that there are weighty decisions to be cited adverse to it； and that； if they have involved an innovation； the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic； I ＇9O＇ think I may assert that a little reflection will show that it was required not only by policy； but by consistency。 I will begin with the latter。
The same reasoning which would make a man answerable in trespass for all damage to another by force directly resulting from his own act； irrespective of negligence or intent； would make him answerable in case for the like damage similarly resulting from the act of his servant； in the course of the latter's employment。 The discussions of the company's negligence in many railway cases would therefore be wholly out of place； for although； to be sure； there is a contract which would make the company liable for negligence； that contract cannot be taken to diminish any liability which would otherwise exist for a trespass on the part of its employees。
More than this； the same reasoning would make a defendant responsible for all damage； however remote； of which his act could be called the cause。 So long； at least； as only physical or irresponsible agencies； however unforeseen； co… operated with the act complained of to produce the result； the argument which would resolve the case of accidentally striking the plaintiff； when lifting a stick in necessary self…defence； adversely to the defendant； would require a decision against him in every case where his act was a factor in the result complained of。 The distinction between a direct application of force； and causing damage indirectly； or as a more remote consequence of one's act； although it ma