It is only the surrounding circumstances of a pistol
loaded and cocked, and of a human being in such relation to it,
as to be manifestly likely to be hit, that make the act a wrong.
Hence, it is no sufficient foundation for liability, on any sound
principle, that the proximate cause of loss was an act.
The reason for requiring an act is, that an act implies a choice,
and that it is felt to be impolitic and unjust to make a man
answerable for harm, unless he might have chosen otherwise. But
the choice must be made with a chance of contemplating the
consequence complained of, or else it has no bearing on
responsibility for that consequence. [55] If this were not true,
a man might be held answerable for everything which would not
have happened but for his choice at some past time. For instance,
for having in a fit fallen on a man, which he would not have done
had he not chosen to come to the city where he was taken ill.
All foresight of the future, all choice with regard to any
possible consequence of action, depends on what is known at the
moment of choosing. An act cannot be wrong, even when done under
circumstances in which it will be hurtful, unless those
circumstances are or ought to be known. A fear of punishment for
causing harm cannot work as a motive, unless the possibility of
harm may be foreseen.
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