stone fell on the head of Walter Critels, but he had no harm from the blow; and a month after this he died of an infirmity, and she fled to church for fear, but [the jurors] say positively that he did not die of the blow. Therefore let her be in custody until the king be consulted." 1 It is to be noted that a killing done in self-defence was regarded as one of those which required to be pardoned in this way by the king; and this notion long left its impress on English criminal law. 3. But still, in the earlier days, the malfeasor by misadventure must at least pay a fine, though released from the penalty of death, and later on, when the blood-feud had disappeared and a fixed payment was the regular form of civil liability, he must pay a portion of the ordinary amount. . . b. Harm connected with Animals. The successive phases of development are nearly akin to those already considered. 1. Of the primitive idea of full liabilty for harm caused by one's animals, there are a few traces. 2. In the next phase, the injured party is found without the privilege of carrying out the blood-feud; this recognition of the unintentional nature of the deed seems to have come earlier here than in any other class of cases. But the owner is still answerable for the wergeld or the compositio appropriate to the harm done, by most laws for the full sum, by others for an aliquot part; and in many cases the value of the mischievous animal, if surrendered, can be used in reduction of this sum. . . . 3. The next step is to absolve the owner entirely, if he divests himself of all relation with the accursed thing by putting it from him entirely; and this would take place, (1) in the beginning, by handing it over to the injured party for the infliction of vengeance (or, as above, in time, as in some sort a compensation or perquisite), and (2), later, by merely turning the animal loose. The owner would thus not be liable if the animal had escaped; for he is no longer connected with it, he is absolved: Twisden, J.: "If one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature:" this may be a trace of the early notion. Moreover, the notion that the owner is liable if he harbors or takes the animal back after repudiation, became, when rationalized as time went on, one of the sources (apparently) of the scienter rule in English law. It must be added that the feature of delivering to the opposite party for his purpose of wreaking private vengeance was largely supplanted by the idea of forfeiture to the authorities for public punishment: sometimes the animal was outlawed, and could be killed by any one; later it was forfeited to the lord or to the church. Sometimes it was tried for its offence, and the theories and methods of trying and punishing animals form a long and interesting sidepath from the present subject.3 4. Along with all this we find in various regions in later times the requirement of an exculpatory oath as a preliminary to allowing the owner to free himself 1 Selden Society, Vol. I. Pleas of the Crown, I, No. 188 (A. D. 1225). 2 Mitchel v. Alestree, 1 Vent. 295 (1676). 3 K. v. Amira, Thierstrafen und Thierprocesse (1892); E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1907); Westermarck, Origin, etc., pp. 254-260. by giving up the animal. The oath perhaps at first declares merely that the owner was not privy to the wrong; but later it is that the owner was not aware of the animal's vice. . . From this basis (and perhaps that just mentioned) the later doctrines as to animals ferae et mansuetae naturae, and as to a scienter of the tame animal's viciousness in cases of violent injuries, would easily work out. c. Harm connected with Inanimate Things. Here we may trace, mutatis mutandis, stages of development substantially analogous to those found in the preceding class of cases. 1. Of the most primitive form, subjection to the blood-feud for injuries caused by things belonging to a person, and without the owner's personal use of them, there are only a few traces, for the change came early. In the early times, when rape or adultery was committed in a house, its inmates were killed, and the house (of commission or of refuge) was destroyed. 2. This passes into a mere pecuniary liability, accompanied sometimes by the duty of handing over the injuring thing, sometimes by the privilege of using its surrender to reduce the amount of the payment. The rule was, in Schleswig, if one is building a house, and a beam falls and kills a man, the beam is to be given over to the dead man's heirs (or, by later law, merely thrown away), and the owner also pays them 9 marks. 3. The notion of complete exculpation by a surrender or repudiation of the offending thing, or by an abstention from using it again, very early makes its appearance: In the case above, from Schleswig, if the beam is built in after all, the whole house is forfeited. In the laws of Henry I, the owner of weapons used by another to do harm must not take them into his hands again till they are "in omni calumpnia munda.” The notions with regard to the forfeiture of such noxal things passed through phases similar to those respecting animals; and the "deodand" is one of the traces in later law.1 . . . 5. Finally, but coming at different times with respect to different classes of things, we find something approaching a rationalization of the rules. In some clear cases there is an absolute exculpation, without more said; in others, there is a foreshadowing of a test of due care or the like. A treatise of the 1500s in France lays down that . . . when a man is killed during the erection of a house, neither the structure nor the master shall bear any liability, if a warning notice had been given.2 . . . But to-day in torts we do certainly consider, not merely the sufferer's damage, but the blamableness of the defendant's conduct; while no such distinction was yet made, in the 1300s, even in cases of mere "misadventure." The evidence seems plain that the rationalization towards the present standards 1 Holmes, Common Law, 25, citing, among other cases, "If my horse strikes a man, and afterwards I sell my horse, and after that the man dies, the horse shall be forfeited" (Plowden, 260). Every one is familiar with the fossil remains of the deodand in the clause of the criminal indictment stating the value of the weapon with which a murder was done. 2 But as late as 1466 a counsel thus argued in England: "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, etc.; and yet the raising of the house was lawful, and the timber fell, me invito, etc." (Fairfax, in the Thorn-cutting case, Y. B. 6 Edw. IV, 7, pl. 18, quoted post, in No. 475.) began at a much earlier period than has been supposed. In other words, there has never been a time, in English law, since (say) the early 1500s, when the defendant in an action for Trespass was not allowed to appeal to some test or standard of moral blame or fault in addition to and beyond the mere question of his act having been voluntary; i. e., conceding a voluntary act, he might still exonerate himself. TITLE A: CAUSATION, IN GENERAL SUB-TITLE (I): CAUSATION, AS A CONCEPTION OF PRACTICAL LOGIC AND MORAL RESPONSIBILITY 1 350. ALFRED SIDGWICK. Fallacies: A View of Logic from the Practical Side. (1884, p. 334.) When S is observed to happen earlier in time than S; if we inquire as to the various ways in which these may conceivably be related to each other in Causation, we find: First, S may be the cause of S: (1) As what is often loosely called the sole cause. That is, if S had not happened, S would not have happened, all other circumstances in S's environment being "accidental" to S: as where S is the passing of a bullet through a healthy man's brain, and S the death of the man. (2) S and a third circumstance, Z, may have been jointly essential to S's happening. That is, without their combination, S would not have happened: as where Z is a certain person's weak state of health, S is the arrival of feverinfection, and S his consequent fever. (3) S and Z may have jointly contributed to S's existence, without their combination being essential to the production of S at all. That is, without one of them, S might have happened, but not to so great an extent or intensity: as where S and Z are a pair of horses, and S the movement of the carriage. (4) S may have been itself due to a former case of S, but may now be in its turn cause (whether sole or otherwise) of the present S: as where S is a rise in the bank rate, and S a general uneasiness in the money-market. Secondly, S and S may be co-effects of Z: as where S is day, S is night, and Z is the earth's revolution in the sunlight: or where Z is a "centre of depression," S is a falling barometer, and S a storm. Thirdly, Z may have been (sole or other) cause of S, and S accidental:· (1) Simply accidental, as where S is the act of blowing, S is the flying open of the watch-case, and Z is the pressure of my finger on the spring. (Along with this may be classed the case where Z is the effect of S, and S accidental; as where S is the arrival of a comet, Z a letter in the Times about it, and S a war.) (2) Z may have been the cause of S, and S a hindrance: as where S is the flourishing state of trade in America, Z is the "boundless resources of the country," and S is the system of Protective Duties. 351. J. J. BURLAMAQUI. Principles of Natural and Politic Law (transl. Nugent. 3d ed. 1784. Vol. I, p. 34; Part I, c. III). Principle of Imputability. Since man is the immediate author of his actions, he is accountable for them; and in justice and reason they can be imputed to him. This is a point of which we think it necessary to give here a short explication. The term of "imputing" is borrowed of arithmetic, and signifies properly, to set a sum down to somebody's account. To impute an action therefore to a person, is to attribute it to him as to its real author, to set it down, as it were, to his account, and to make him answerable for it. Now it is evidently an essential quality of human actions, as produced and directed by the understanding and will, to be suscepti 1 This is in contrast with the primitive idea shown in Nos. 346-349, ante. ble to imputation; that is, it is plain that man can be justly considered as the author and productive cause of those actions, and that for this very reason it is right to make him accountable for them, and to lay to his charge the effects that arise from thence as natural consequences. In fact, the true reason why a person cannot complain of being made answerable for an action, is that he has produced it himself knowingly and willingly. Every thing, almost, that is said and done in human society supposes this principle generally received, and every body acquiesces in it from an inward conviction. We must therefore lay down, as an incontestable and fundamental principle of the imputability of human actions, that every voluntary action is susceptible of imputation; or, to express the same thing in other terms, that every action or omission subject to the direction of man, can be charged to the account of the person in whose power it was to do it or to let it alone; and on the contrary, every action, whose existence or non-existence does not depend on our will, cannot be imputed to us. Observe here, that omissions are ranked by civilians and moralists among the number of actions; because they apprehend them as the effect of a voluntary suspension of the exercise of our faculties. . . . We give in general the name of "moral cause" of an action to the person that produced it, either in the whole or part, by a determination of his will. 352. ATCHISON, TOPEKA, & SANTA FE R. Co. v. BALES. (1876. 16 Kan. 252, 256; action for damage done by the spread of a prairie fire.) Valentine, J. The word "cause" has various meanings, and shades of meanings. Philosophically speaking, the sum of all the antecedents of any event, constitutes its cause. Ordinarily, however, we consider each separate antecedent of an event as a cause for such event, provided however that the event could not have happened except for such antecedent. Taking this view of cause and effect, there may be many causes conjointly and consecutively contributing to produce one and the same final result. And these causes may differ vastly in their proximity or remoteness to or from such final result. But still, any one of them may, as we think, be selected as the responsible cause for such final result, provided it be selected in accordance with rules of law settled and established by the numerous adjudications of the Courts. . . . Observing these rules and limitations, an unlimited number of causes and effects may intervene between the first wrongful cause and the final injurious result, and still the author of such wrongful cause be held responsible for the last as well as the first and for every intermediate result. In the burning of prairie grass, like the case at bar, the number of causes and effects that may intervene between the first cause and the final result is illimitable. Each blade of grass is a separate and distinct entity, and the burning of each blade is both an effect and a cause. It is the effect of the burning of the blades immediately preceding it, and the cause, along with other blades, of the burning of the blades immediately succeeding it. And yet all these causes and effects are so intimately interlinked and blended with each other that we look upon the whole of them as constituting but one grand, united, continuous and single whole. We look upon the whole fire as only one fire, and the whole of these separate causes as merely one cause. 353. HAYES v. MICHIGAN CENTRAL RAILROAD COMPANY. (1883. 111 U. S. 228. Action against a railroad company, for personal injury received by the plaintiff, a deaf-and-dumb boy, in falling under the train; the plaintiff had passed from a public park on to the railroad right of way; the defendant was by |