Brown v.  Kendall has been followed in Connecticut, 1 in a case where a man fired a pistol, in lawful self-defence as he alleged, and hit a bystander.  The court was strongly of opinion that the defendant was not answerable on the general principles of trespass, unless there was a failure to use such care as was practicable under the circumstances.  The foundation of liability in trespass as well as case was said to be negligence.  The Supreme Court of the United States has given the sanction of its approval to the same doctrine. 2 The language of Harvey v.  Dunlop 3 has been [107] quoted, and there is a case in Vermont which tends in the same direction. 1

Supposing it now to be conceded that the general notion upon which liability to an action is founded is fault or blameworthiness in some sense, the question arises, whether it is so in the sense of personal moral shortcoming, as would practically result from Austin’s teaching.  The language of Rede, J., which has been quoted from the Year Book, gives a sufficient answer.  “In trespass the intent” (we may say more broadly, the defendant’s state of mind) “cannot be construed.”  Suppose that a defendant were allowed to testify that, before acting, he considered carefully what would be the conduct of a prudent man under the circumstances, and, having formed the best judgment he could, acted accordingly.  If the story was believed, it would be conclusive against the defendant’s negligence judged by a moral standard which would take his personal characteristics into account.  But supposing any such evidence to have got before the jury, it is very clear that the court would say, Gentlemen, the question is not whether the defendant thought his conduct was that of a prudent man, but whether you think it was. 2

Some middle point must be found between the horns of this dilemma.

[108 The standards of the law are standards of general application.  The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men.  It does not attempt to see men as God sees them, for more than one sufficient reason.  In the first place, the impossibility of nicely measuring a man’s powers and limitations is far clearer than that of ascertaining his knowledge of law, which has been thought to account for what is called the presumption that every man knows the law.  But a more satisfactory explanation is, that, when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare.  If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect.  His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.