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 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.
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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). 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 peace,' and 'the peace,'--this last expression being sufficient, after the peace of the sheriff had ceased to be distinguished as a separate jurisdiction." 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. Next comes the argument from authority.I will begin with an early and important case. 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, &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 Icannot 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 stick was lawful in self-defence, and I hit him, me invito, &c.; and so here, &C.""Littleton, J.to the same intent, and if a man is damaged he ought to be recompensed....If your cattle come on my land and eat my grass, notwithstanding you come freshly and drive them out, you ought to make amends for what your cattle have done, be it more or less....And, sir, if this should be law that he might enter and take the thorns, for the same reason, if he cut a large tree, he might come with his wagons and horses to carry the trees off, which is not reason, for perhaps he has corn or other crops growing, &c., and no more here, for the law is all one in great things and small....Choke, C.J.to the same intent, for when the principal thing was not lawful, that which depends upon it was not lawful; for when he cut the thorns and they fell on my land, this falling was not lawful, and therefore his coming to take them out was not lawful.As to what was said about their falling in ipso invito, that is no plea, but he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out."Forty years later, the Year Books report Rede, J.as adopting the argument of Fairfax in the last case.In trespass, he says, "the intent cannot be construed; but in felony it shall be.As when a man shoots at butts and kills a man, it is not felony et il ser come n'avoit l'entent de luy tuer; and so of a tiler on a house who with a stone kills a man unwittingly, it is not felony.
