Nay, why need the defendant have acted at
all, and why is it not enough that his existence has been at the
expense of the plaintiff? The requirement of an act is the
requirement that the defendant should have made a choice. But the
only possible purpose of introducing this moral element is to
make the power of avoiding the evil complained of a condition of
liability. There is no such power where the evil cannot be
foreseen. /2/ Here we reach the argument from policy, and I shall
accordingly postpone for a moment the discussion of trespasses
upon land, and of conversions, and will take up the liability for
cattle separately at a later stage.
A man need not, it is true, do this or that act, the term act
implies a choice, --but he must act somehow. Furthermore, the
public generally profits by individual activity. As action cannot
be avoided, and tends to the public good, there is obviously no
policy in throwing the hazard of what is at once desirable and
inevitable upon the actor. [96] The state might conceivably make
itself a mutual insurance company against accidents, and
distribute the burden of its citizens' mishaps among all its
members. There might be a pension for paralytics, and state aid
for those who suffered in person or estate from tempest or wild
beasts.
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