Page:Harvard Law Review Volume 9.djvu/108

80 8o HARVARD LAW REVIEW. RECOVERY FOR CONSEQUENCES OF AN ACT. ONE of the surprising facts in the history of our law is the unsettled state of its doctrine with respect to recovery for consequences. This is a fundamental point, both of civil and of criminal liability ; volumes have been written about it in the last fifty years, yet we are apparently no nearer an accepted doctrine than we were three centuries ago. Four or five rules have been proposed, discussed, and found inadequate; all of them, in difficult cases, fail even to guide a jury, and no one has prevailed over the others. The fruitlessness of the discussion seems to indicate one of two things. Either recovery for consequences depends entirely upon a question of fact, must in every case be left to a jury, and can never profitably be determined by the law or predicted by a lawyer ; or else, if there is an underlying principle of law, we have not yet sought it in the right way, and must retrace our steps and try again from the beginning. The former opinion has been ex- pressed,^ but it has found few advocates, and its adoption must surely be a last resort. It remains to start afresh. -I do not pro- pose in this article to formulate and attempt to support another alleged rule of law upon the subject, but to point out a new and what seems the right way of starting in order to reach a satisfactory goal. The false direction first came, I think, from a misconception of the problem. The attempt made was to connect defendant with the result complained of by means of a train of events through which it was thought the active force set in motion by the defendant could be traced. If, according to one form of statement, the result was not a remote consequence, or according to another form, it was the natural or probable consequence of what defendant did, liability for the result was thought to be established. The connec- tion sought was one between the final result and defendant's origi- nal act. In seeking this connection the courts (at least in this century) professed to be guided by Lord Bacon's first maxim, " Causa proxima non remota spectatur'' 1 For instance, by a majority of the court (Ladd, J., vigorously dissenting) in Oilman V, Noyes, 57 N. H. 627, Smith Cas. on Torts, 18.