Were this not so, the almost universal
acceptance of the first proposition in this Lecture, that the
general foundation of liability for unintentional wrongs is
conduct different from that of a prudent man under the
circumstances, would leave all our rights and duties throughout a
great part of the law to the necessarily more or less accidental
feelings of a jury.
It is perfectly consistent with the views maintained in this
Lecture that the courts have been very slow to withdraw questions
of negligence from the jury, without distinguishing [127] nicely
whether the doubt concerned the facts or the standard to be
applied. Legal, like natural divisions, however clear in their
general outline, will be found on exact scrutiny to end in a
penumbra or debatable land. This is the region of the jury, and
only cases falling on this doubtful border are likely to be
carried far in court. Still, the tendency of the law must always
be to narrow the field of uncertainty. That is what analogy, as
well as the decisions on this very subject, would lead us to
expect.
The growth of the law is very apt to take place in this way. Two
widely different cases suggest a general distinction, which is a
clear one when stated broadly. But as new eases cluster around
the opposite poles, and begin to approach each other, the
distinction becomes more difficult to trace; the determinations
are made one way or the other on a very slight preponderance of
feeling, rather than of articulate reason; and at last a
mathematical line is arrived at by the contact of contrary
decisions, which is so far arbitrary that it might equally well
have been drawn a little farther to the one side or to the other,
but which must have been drawn somewhere in the neighborhood of
where it falls.
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