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e 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 t