perfectly well settled at common law that "Not guilty" only
denies the act. /2/
Next comes the argument from authority. I will begin with an
early and important case. /3/ It was trespass quare clausum. The
defendant pleaded that he owned adjoining land, upon which was a
thorn hedge; that he cut the thorns, and that they, against his
will (ipso invito), fell on the plaintiff's land, and the
defendant went quickly upon the same, and took them, which was
the trespass complained of. And on demurrer judgment was given
for the plaintiff. The plaintiff's counsel put cases which have
been often repeated. One of them, Fairfax, said: "There is a
diversity between an act resulting in a felony, and one resulting
in a trespass .... If one is cutting trees, and the boughs fall
on a man and wound him, in this case he shall have an action of
trespass, &c., and also, sir, if one is shooting at butts, and
his bow shakes in his hands, and kills a man, ipso invito, it is
no felony, as has been said, [86] &c.; but if he wounds one by
shooting, he shall have a good action of trespass against him,
and yet the shooting was lawful, &c., and the wrong which the
other receives was against his will, &c.; and so here, &c."
Brian, another counsel, states the whole doctrine, and uses
equally familiar illustrations. "When one does a thing, he is
bound to do it in such a way that by his act no prejudice or
damage shall be done to &c. As 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, &c.; and yet the raising of the house was lawful, and the
timber fell, me invito, &c. And so if one assaults me and I
cannot escape, and I in self-defence lift my stick to strike him,
and in lifting it hit a man who is behind me, in this case he
shall have an action against me, yet my raising my stick was
lawful in self-defence, and I hit him, me invito, &c.; and so
here, &C."
"Littleton, J. to the same intent, and if a man is damaged he
ought to be recompensed .... If your cattle come on my land and
eat my grass, notwithstanding you come freshly and drive them
out, you ought to make amends for what your cattle have done, be
it more or less .... And, sir, if this should be law that he
might enter and take the thorns, for the same reason, if he cut a
large tree, he might come with his wagons and horses to carry the
trees off, which is not reason, for perhaps he has corn or other
crops growing, &c., and no more here, for the law is all one in
great things and small .... Choke, C. J. to the same intent, for
when the principal thing was not lawful, that which depends upon
it was not lawful; for when he cut the thorns and they fell on my
land, [87] this falling was not lawful, and therefore his coming
to take them out was not lawful. As to what was said about their
falling in ipso invito, that is no plea, but he ought to show
that he could not do it in any other way, or that he did all that
was in his power to keep them out."
Forty years later, /1/ the Year Books report Rede, J. as adopting
the argument of Fairfax in the last case. In trespass, he says,
"the intent cannot be construed; but in felony it shall be. As
when a man shoots at butts and kills a man, it is not felony et
il ser come n'avoit l'entent de luy tuer; and so of a tiler on a