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Other isolated instances like the last might； perhaps； be found in different parts of the law； in which actual malevolence would affect a man's liability for his conduct。 Again； in trover for the conversion of another's chattel； where the dominion exercised over it was of a slight and ambiguous ＇144＇ nature； it has been said that the taking must be 〃with the intent of exercising an ownership over the chattel inconsistent with the real owner's right of possession。〃 /l / But this seems to be no more than a faint shadow of the doctrine explained with regard to larceny； and does not require any further or special discussion。 Trover is commonly understood to go； like larceny； on the plaintiff's being deprived of his property； although in practice every possessor has the action； and； generally speaking； the shortest wrongful withholding of possession is a conversion。
Be the exceptions more or less numerous； the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person； reputation； or estate； at the hands of his neighbors； not because they are wrong； but because they are harms。 The true explanation of the reference of liability to a moral standard； in the sense which has been explained； is not that it is for the purpose of improving men's hearts； but that it is to give a man a fair chance to avoid doing the harm before he is held responsible for it。 It is intended to reconcile the policy of letting accidents lie where they fall； and the reasonable freedom of others with the protection of the individual from injury。
But the law does not even seek to indemnify a man from all harms。 An unrestricted enjoyment of all his possibilities would interfere with other equally important enjoyments on the part of his neighbors。 There are certain things which the law allows a man to do； notwithstanding the fact that he foresees that harm to another will follow from them。 He may charge a man with crime if the charge is true。 He may establish himself in business where he foresees that ＇145＇ of his competition will be to diminish the custom of another shopkeeper； perhaps to ruin him。 He may a building which cuts another off from a beautiful prospect； or he may drain subterranean waters and thereby drain another's well； and many other cases might be put。
As any of these things may be done with foresight of their evil consequences； it would seem that they might be done with intent； and even with malevolent intent； to produce them。 The whole argument of this Lecture and the preceding tends to this conclusion。 If the aim of liability is simply to prevent or indemnify from harm so far as is consistent with avoiding the extreme of making a man answer for accident； when the law permits the harm to be knowingly inflicted it would be a strong thing if the presence of malice made any difference in its decisions。 That might happen； to be sure； without affecting the general views maintained here； but it is not to be expected； and the weight of authority is against it。
As the law； on the one hand； allows certain harms to be inflicted irrespective of the moral condition of him who inflicts them； so； at the other extreme； it may on grounds of policy throw the absolute risk of certain transactions on the person engaging in them； irrespective of blameworthiness in any sense。 Instances of this sort have been mentioned in the last Lecture； /1/ and will be referred to again。
Most liabilities in tort lie between these two extremes； and are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions which were its proximate cause。 Rut as fast as specific rules are worked out in place of the ＇146＇ vague reference to the conduct of the average man； they range themselves alongside of other specific rules based on public policy； and the grounds from which they spring cease to be manifest。 So that； as will be seen directly； rules which seem to lie outside of culpability in any sense have sometimes been referred to remote fault； while others which started from the general notion of negligence may with equal ease be referred to some extrinsic ground of policy。
Apart from the extremes just mentioned； it is now easy to see how the point at which a man's conduct begins to be at his own peril is generally fixed。 When the principle is understood on which that point is determined by the law of torts； we possess a common ground of classification； and a key to the whole subject； so far as tradition has not swerved the law from a consistent theory。 It has been made pretty clear from what precedes； that I find that ground in knowledge of circumstances accompanying an act or conduct indifferent but for those circumstances。
But it is worth remarking； before that criterion is discussed； that a possible common ground is reached at the preceding step in the descent from malice through intent and foresight。 Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence。 The purpose of the law is to prevent or secure a man indemnity from harm at the hands of his neighbors； so far as consistent with other considerations which have been mentioned； and excepting； of course； such harm as it permits to be intentionally inflicted。 When a man foresees that harm will result from his conduct； the principle which exonerates him from accident no longer applies； and he is liable。 But； as has been shown； he is bound to foresee ＇147＇ whatever a prudent and intelligent man would have foreseen； and therefore he is liable for conduct from which such a man would have foreseen that harm was liable to follow。
Accordingly； it would be possible to state all cases of negligence in terms of imputed or presumed foresight。 It would be possible even to press the presumption further； applying the very inaccurate maxim； that every man is presumed to intend the natural consequences of his own acts； and this mode of expression will； in fact； be found to have been occasionally used； /1/ more especially in the criminal law； where the notion of intent has a stronger foothold。 /2/ The 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 wr