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iability to an action as a sanction； or； in other words； as a penalty for disobedience。 It follows from this； according to the prevailing views of penal law； that such liability ought only to be based upon personal fault； and Austin accepts that conclusion； with its corollaries； one of which is that negligence means a state of the party's mind。 /1/ These doctrines will be referred to later； so far as necessary。
The other theory is directly opposed to the foregoing。 It seems to be adopted by some of the greatest common law authorities； and requires serious discussion before it can be set aside in favor of any third opinion which may be maintained。 According to this view； broadly stated； under the common law a man acts at his peril。 It may be held as a sort of set…off； that he is never liable for omissions except in consequence of some duty voluntarily undertaken。 But the whole and sufficient ground for such liabilities as he does incur outside the last class is supposed to be that he has voluntarily acted； and that damage has ensued。 If the act was voluntary； it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor。
In order to do justice to this way of looking at the subject； we must remember that the abolition of the common…law forms of pleading has not changed the rules of substantive law。 Hence； although pleaders now generally ＇83＇ allege intent or negligence； anything which would formerly have been sufficient to charge a defendant in trespass is still sufficient； notwithstanding the fact that the ancient form of action and declaration has disappeared。
In the first place； it is said； consider generally the protection given by the law to property； both within and outside the limits of the last…named action。 If a man crosses his neighbor's boundary by however innocent a mistake； or if his cattle escape into his neighbor's field； he is said to be liable in trespass quare clausum fregit。 If an auctioneer in the most perfect good faith； and in the regular course of his business； sells goods sent to his rooms for the purpose of being sold； he may be compelled to pay their full value if a third person turns out to be the owner； although he has paid over the proceeds； and has no means of obtaining indemnity。
Now suppose that； instead of a dealing with the plaintiff's property； the case is that force has proceeded directly from the defendant's body to the plaintiff's body； it is urged that； as the law cannot be less careful of the persons than of the property of its subjects； the only defences possible are similar to those which would have been open to an alleged trespass on land。 You may show that there was no trespass by showing that the defendant did no act； as where he was thrown from his horse upon the plaintiff； or where a third person took his hand and struck the plaintiff with it。 In such cases the defendant's body is file passive instrument of an external force； and the bodily motion relied on by the plaintiff is not his act at all。 So you may show a justification or excuse in the conduct of the plaintiff himself。 But if no such excuse is shown； and the defendant has voluntarily acted； he must answer ＇84＇ for the consequences； however little intended and however unforeseen。 If； for instance； being assaulted by a third person； the defendant lifted his stick and accidentally hit the plaintiff； who was standing behind him； according to this view he is liable； irrespective of any negligence toward the party injured。
The arguments for the doctrine under consideration are； for the most part； drawn from precedent； but it is sometimes supposed to be defensible as theoretically sound。 Every man； it is said； has an absolute right to his person； and so forth； free from detriment at the hands of his neighbors。 In the cases put； the plaintiff has done nothing； the defendant； on the other hand； has chosen to act。 As between the two； the party whose voluntary conduct has caused the damage should suffer； rather than one who has had no share in producing 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 st