I must preface the argument from precedent with a reference to what has been said already in the first Lecture about early forms of liability, and especially about the appeals.It was there shown that the appeals de pace et plagis and of mayhem became the action of trespass, and that those appeals and the early actions of trespass were always, so far as appears, for intentional wrongs. The contra pacem in the writ of trespass was no doubt inserted to lay a foundation for the king's writ; but there seems to be no reason to attribute a similar purpose to vi et armis, or cum vi sua, as it was often put.Glanvill says that wounds are within the sheriff's jurisdiction, unless the appellor adds a charge of breach of the king's peace. Yet the wounds are given vi et armis as much in the one case as in the other.Bracton says that the lesser wrongs described by him belong to the king's jurisdiction, "because they are sometimes against the peace of our lord the king," while, as has been observed, they were supposed to be always committed intentionally.It might even perhaps be inferred that the allegation contra pacem was originally material, and it will be remembered that trespasses formerly involved the liability to pay a fine to the king. If it be true that trespass was originally confined to intentional wrongs, it is hardly necessary to consider the argument drawn from the scope of the general issue.In form it was a mitigation of the strict denial de verbo in verbum of the ancient procedure, to which the inquest given by the king's writ was unknown. The strict form seems to have lasted in England some time after the trial of the issue by recognition was introduced. When a recognition was granted, the inquest was, of course, only competent to speak to the facts, as has been said above. When the general issue was introduced, trespass was still confined to intentional wrongs.
We may now take up the authorities.It will be remembered that the earlier precedents are of a date when the assize and jurata had not given place to the modern jury.These bodies spoke from their own knowledge to an issue defined by the writ, or to certain familiar questions of fact arising in the trial of a cause, but did not hear the whole case upon evidence adduced.
Their function was more limited than that which has been gained by the jury, and it naturally happened that, when they had declared what the defendant had done, the judges laid down the standard by which those acts were to be measured without their assistance.Hence the question in the Year Books is not a loose or general inquiry of the jury whether they think the alleged trespasser was negligent on such facts as they may find, but a well-defined issue of law, to be determined by the court, whether certain acts set forth upon the record are a ground of liability.
It is possible that the judges may have dealt pretty strictly with defendants, and it is quite easy to pass from the premise that defendants have been held trespassers for a variety of acts, without mention of neglect, to the conclusion that any act by which another was damaged will make the actor chargeable.But a more exact scrutiny of the early books will show that liability in general, then as later, was founded on the opinion of the tribunal that the defendant ought to have acted otherwise, or, in other words, that he was to blame.
Returning first to the case of the thorns in the Year Book, it will be seen that the falling of the thorns into the plaintiff's close, although a result not wished by the defendant, was in no other sense against his will.When he cut the thorns, he did an act which obviously and necessarily would have that consequence, and he must be taken to have foreseen and not to have prevented it.Choke, C.J.says, "As to 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 in his power to keep them out"; and both the judges put the unlawfulness of the entry upon the plaintiff's land as a consequence of the unlawfulness of dropping the thorns there.
Choke admits that, if the thorns or a tree had been blown over upon the plaintiff's land, the defendant might have entered to get them.Chief Justice Crew says of this case, in Millen v.
Fawdry, that the opinion was that "trespass lies, because he did not plead that he did his best endeavor to hinder their falling there; yet this was a hard case." The statements of law by counsel in argument may be left on one side, although Brian is quoted and mistaken for one of the judges by Sir William Blackstone, in Scott v.Shepherd.
The principal authorities are the shooting cases, and, as shooting is an extra- hazardous act, it would not be surprising if it should be held that men do it at their peril in public places.The liability has been put on the general ground of fault, however, wherever the line of necessary precaution may be drawn.In Weaver v.Ward, the defendant set up that the plaintiff and he were skirmishing in a trainband, and that when discharging his piece he wounded the plaintiff by accident and misfortune, and against his own will.On demurrer, the court says that "no man shall be excused of a trespass,...except it may be judged utterly without his fault.As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances so as it had appeared to the court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt." The later cases simply follow Weaver v.Ward.
