Moral predilections must not be allowed to influence our minds in settling legal distinctions.  If we accept the test of the liability alone, how do we distinguish between trover and the mill acts?  Or between conduct which is prohibited, and that which is merely taxed?  The only distinction which I can see is in the difference of the collateral consequences attached to the two classes of conduct.  In the one, the maxim in pari delicto potior est [149] conditio defendentis, and the invalidity of contracts contemplating it, show that the conduct is outside the protection of the law.  In the other, it is otherwise. 1 This opinion is confirmed by the fact, that almost the only cases in which the distinction between prohibition and taxation comes up concern the application of these maxims.

But if this be true, liability to an action does not necessarily import wrong-doing.  And this may be admitted without at all impairing the force of the argument in the foregoing Lecture, which only requires that people should not be made to pay for accidents which they could not have avoided.

It is doubtful, however, whether the ruling of Chief Justice Rolle would now be followed.  The squib case, Scott v.  Shepherd, and the language of some text-books, are more or less opposed to it. 2 If the latter view is law, then an act must in general not only be dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable.  But, aside from such exceptional cases as Gilbert v.  Stone, the two tests agree, and the difference need not be considered in what follows.

I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it.

For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people.  The ordinarily intelligent and prudent member of the community [150] would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded.  Hence, it may very properly be held that a man who does such a thing does it at his peril, and that, if damage ensues, he is answerable for it.  The co-ordinated acts necessary to point a gun and pull a trigger, and the intent and knowledge shown by the co-ordination of those acts, are all consistent with entire blamelessness.  They threaten harm to no one without further facts.  But the one additional circumstance of a man in the line and within range of the piece makes the conduct manifestly dangerous to any one who knows the fact.  There is no longer any need to refer to the prudent man, or general experience.  The facts have taught their lesson, and have generated a concrete and external rule of liability.  He who snaps a cap upon a gun pointed in the direction of another person, known by him to be present, is answerable for the consequences.