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.
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