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s or the standard to be applied。 Legal； like natural divisions； however clear in their general outline； will be found on exact scrutiny to end in a penumbra or debatable land。 This is the region of the jury； and only cases falling on this doubtful border are likely to be carried far in court。 Still； the tendency of the law must always be to narrow the field of uncertainty。 That is what analogy； as well as the decisions on this very subject； would lead us to expect。
The growth of the law is very apt to take place in this way。 Two widely different cases suggest a general distinction； which is a clear one when stated broadly。 But as new eases cluster around the opposite poles； and begin to approach each other； the distinction becomes more difficult to trace； the determinations are made one way or the other on a very slight preponderance of feeling； rather than of articulate reason； and at last a mathematical line is arrived at by the contact of contrary decisions； which is so far arbitrary that it might equally well have been drawn a little farther to the one side or to the other； but which must have been drawn somewhere in the neighborhood of ；where it falls。 /1/
In this way exact distinctions have been worked out upon questions in which the elements to be considered are few。 For instance； what is a reasonable time for presenting negotiable paper； or what is a difference in kind and what a difference only in quality； or the rule against perpetuities。
An example of the approach of decisions towards each other from the opposite poles； and of the function of the jury midway； is to be found in the Massachusetts adjudications； ＇128＇ that； if a child of two years and four months is unnecessarily sent unattended across and down a street in a large city； he cannot recover for a negligent injury； /1/ that to allow a boy of eight to be abroad alone is not necessarily negligent； /2/ and that the effect of permitting a boy of ten to be abroad after dark is for the jury； /3/ a coupled with the statement； which may be ventured on without authority； that such a permission to a young man of twenty possessed of common intelligence has no effect whatever。
Take again the law of ancient lights in England。 An obstruction to be actionable must be substantial。 Under ordinary circumstances the erection of a structure a hundred yards off； and one foot above the ground； would not be actionable。 One within a foot of the window； and covering it； would be； without any finding of a jury beyond these facts。 In doubtful cases midway； the question whether the interference was substantial has been left to the jury。 /4/ But as the elements are few and permanent； an inclination has been shown to lay down a definite rule； that； in ordinary cases； the building complained of must not be higher than the distance of its base from the dominant windows。 And although this attempt to work out an exact line requires much caution； it is entirely philosophical in spirit。 /5/
The same principle applies to negligence。 If the whole evidence in the case was that a party； in full command of ＇129＇ senses and intellect； stood on a railway track； looking at an approaching engine until it ran him down； no judge would leave it to the jury to say whether the conduct was prudent。 If the whole evidence was that he attempted to cross a level track； which was visible for half a mile each way； and on which no engine was in sight； no court would allow a jury to find negligence。 Between these extremes are cases which would go to the jury。 But it is obvious that the limit of safety in such cases； supposing no further elements present； could be determined to a foot by mathematical calculation。
The trouble with many cases of negligence is； that they are of a kind not frequently recurring； so as to enable any given judge to profit by long experience with juries to lay down rules； and that the elements are so complex that courts are glad to leave the whole matter in a lump for the jury's determination。
I reserve the relation between negligent and other torts for the next Lecture。
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。 Th