Sir William Blackstone also adopts a phrase from Dickenson v.  Watson, just cited:  “Nothing but inevitable necessity” is a justification.  So Lord Ellenborough, in Leame v.  Bray:  4 “If the injury were received from the personal act of another, it was deemed sufficient to make it trespass”; or, according to the more frequently quoted language of Grose, J., in the same case:  “Looking into all the cases from the Year Book in the 21 H. VII. down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass.”  Further citations are deemed unnecessary.

In spite, however, of all the arguments which may be [89] urged for the rule that a man acts at his peril, it has been rejected by very eminent courts, even under the old forms of action.  In view of this fact, and of the further circumstance that, since the old forms have been abolished, the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent, probably many lawyers would be surprised that any one should think it worth while to go into the present discussion.  Such is the natural impression to be derived from daily practice.  But even if the doctrine under consideration had no longer any followers, which is not the case, it would be well to have something more than daily practice to sustain our views upon so fundamental a question; as it seems to me at least, the true principle is far from being articulately grasped by all who are interested in it, and can only be arrived at after a careful analysis of what has been thought hitherto.  It might be thought enough to cite the decisions opposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with admitted doctrines and sound policy.  But we may go further with profit, and inquire whether there are not strong grounds for thinking that the common law has never known such a rule, unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction.  Conciliating the attention of those who, contrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once more that there are weighty decisions to be cited adverse to it, and that, if they have involved an innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic, I [90] think I may assert that a little reflection will show that it was required not only by policy, but by consistency.  I will begin with the latter.