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ally intended to burn it down。 If so； the length of the chain of physical causes intervening is of no importance； and has no bearing on the case。
But the choice may have stopped one step farther back。 The defendant may have intended to light a fire on his own land； and may not have intended to burn the house。 Then the nature of the intervening and concomitant physical causes becomes of the highest importance。 The question will be the degree of danger attending the contemplated （and therefore chosen） effect of the defendant's conduct under the circumstances known to him。 If this was very plain and very great； as； for instance； if his conduct consisted in lighting stubble near a haystack close to the house； and if the manifest circumstances were that the house was of wood； the stubble very dry； and the wind in a dangerous quarter； the court would probably rule that he was liable。 If the defendant lighted an ordinary fire in a fireplace in an adjoining house； having no knowledge that the fireplace was unsafely constructed； the court would probably rule that he was not liable。 Midway； complicated and doubtful cases would go to the jury。
But the defendant may not even have intended to set the fire； and his conduct and intent may have been simply to fire a gun； or； remoter still； to walk across a room； in doing which he involuntarily upset a bottle of acid。 So that cases may go to the jury by reason of the remoteness ＇161＇ of the choice in the series of events； as well as because of the complexity of the circumstances attending the act or conduct。 The difference is； perhaps； rather dramatic than substantial。
But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen； that is to say； what his voluntary act or conduct has been； and what consequences he has actually contemplated as flowing from them； and then goes on to determine what dangers attended either the conduct under the known circumstances； or its contemplated consequence under the contemplated circumstances。
Take a case like the glancing of Sir Walter Tyrrel's arrow。 If an expert marksman contemplated that the arrow would hit a certain person； cadit qucoestio。 If he contemplated that it would glance in the direction of another person； but contemplated no more than that； in order to judge of his liability we must go to the end of his fore… sight； and； assuming the foreseen event to happen； consider what the manifest danger was then。 But if no such event was foreseen； the marksman must be judged by the circumstances known to him at the time of shooting。
The theory of torts may be summed up very simply。 At the two extremes of the law are rules determined by policy without reference of any kind to morality。 Certain harms a man may inflict even wickedly； for certain others he must answer； although his conduct has been prudent and beneficial to the community。
But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases； as well as the nearest to the feeling of revenge which leads to self…redress。 It thus naturally adopted the vocabulary； ＇162＇ and in some degree the tests； of morals。 But as the law has grown； even when its standards have continued to model themselves upon those of morality； they have necessarily become external； because they have considered； not the actual condition of the particular defendant； but whether his conduct would have been wrong in the fair average member of the community； whom he is expected to equal at his peril。
In general； this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances。 If there is danger that harm to another will follow； the act is generally wrong in the sense of the law。
But in some cases the defendant's conduct may not have been morally wrong； and yet he may have chosen to inflict the harm； as where he has acted in fear of his life。 In such cases he will be liable； or not； according as the law makes moral blameworthiness； within the limits explained above； the ground of liability； or deems it sufficient if the defendant has had reasonable warning of danger before acting。 This distinction； however； is generally unimportant； and the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct。
The tendency of a given act to cause harm under given circumstances must be determined by experience。 And experience either at first hand or through the voice of the jury is continually working out concrete rules； which in form are still more external and still more remote from a reference to the moral condition of the defendant； than even the test of the prudent man which makes the first stage of the division between law and morals。 It does this in the domain ＇163＇ of wrongs described as intentional； as systematically as in those styled unintentional or negligent。
But while the law is thus continually adding to its specific rules； it does not adopt the coarse and impolitic principle that a man acts always at his peril。 On the contrary； its concrete rules； as well as the general questions addressed to the jury； show that the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct。 And it is certainly arguable that even a fair chance to avoid bringing harm to pass is not sufficient to throw upon a person the peril of his conduct； unless； judged by average standards； he is also to blame for what he does。
＇164＇ LECTURE V。
THE BAILEE AT COMMON LAW。
So far the discussion has been confined to the general principles of liability； and to the mode of ascertaining the point at which a man begins to act at his own peril。 But it does not matter to a man whether he acts at his own peril or not； unless harm comes of it； and there must always be some one within reach of the consequences of the act before any harm can be done。 Furthermore； and more to the point； there are certain forms of harm which are not likely to be suffered； and which can never be complained of by any one except a person who stands in a particular relation to the actor or to some other person or thing。 Thus it is neither a harm nor a wrong to take fish from a pond unless the pond is possessed or owned by some one； and then only to the possessor or owner。 It is neither a harm nor a wrong to abstain from delivering a bale of wool at a certain time and place； unless a binding promise has been made so to deliver it； and then it is a wrong only to the promisee。
The next thing to be done is to analyze those special relations out of which special rights and duties arise。 The chief of themand I mean by the word 〃relations〃 relations of fact simplyare possession and contract； and I shall take up those subjects successively。
The test of the theory of possession which prevails in any system of law is to be found in its mode of dealing ＇165＇ who have a thing within their power； but not own it； or assert the position of an owner for with regard to it； bailees； in a word。 It is therefore； as a preliminary to understanding the common…law theory of possession； to study the common law with regard to bailees。
The state of things which prevailed on the border between England and Scotland within recent times； and which is brought back in the flesh by the ballad of the Fray O'Suport； is very like that which in an earlier century left its skeleton in the folk…laws of Germany and England。 Cattle were the principal property known； and cattle…stealing the principal form of wrongful taking of property。 Of law there was very little； and what there was depended almost wholly upon the party himself to enforce。 The Salic Law of the fifth century and the Anglo…Saxon laws of Alfred are very full in their directions about following the trail。 If the cattle were come up with before three days were gone； the pursuer had the fight to take and keep them； subject only to swearing that he lost them against his will。 If more than three days went by before the cattle were found； the defendant might swear； if he could； to facts which would disprove the claimant's loss。
This procedure was in truth a legal procedure； but it depended for its beginning and for its execution on the party making the claim。 From its 〃executive〃 nature； it could hardly have been started by any other than the person on the spot； in whose keeping the cattle were。 The oath was to the effect that the party had lost possession against his will。 But if all that a man had to swear was that he had lost possession against his will； it is a natural conclusion that the right to take the oath and make use of ＇166＇ the procedure depended on possession； and not on ownership。 Possession was not merely sufficient； but it was essential。 Only he who was in possession could say that he had lost the property against his will； just as only he who was on the spot could follow the cattle。 /1/
This； so far as known； was the one means afforded by the early law of our race for the recovery of property lost against one's will。 So that； in a word； this procedure； modelled on the self…redress natural to the case which gave rise to it； wa