acts (§ 62). All who, without legal excuse, concur in a wrongful act are alike liable, either jointly or separately. No one can excuse his concurrence in a wrongful act merely on the ground that in what he did he acted as agent for another.1 It sometimes happens that those who are in nowise concerned in the actual doing of a wrongful act, or a wrong, are nevertheless liable therefor; this, be it observed, is not on account of any presumed connection with the act, but because under the circumstances they are legally responsible for the acts of the actual wrong-doers. It may also occur that the one who actually does the act may not be liable, while for that same act another may be liable.3 § 68. The proposition that one is liable for his wrongful act implies, in terms, liability for the necessary, natural, and proximate consequences of the act. This leaves no room for any question as to the intent with which the act is done. There may or may not be any intent, good or bad; but intent or no intent, the liability is for the act and its consequences, not for the intent. By the law of England, intent alone, without any overt act, may constitute treason; with this exception, there is no case in which intent alone, without an act, can constitute a the libel, it was for the jury to say if the defendants were cognizant of what they sold. (Chubb v. Flannagan, 6 C. & P. 431.) Since intention and will are essential to every act, and intention, will and malice to every crime, the absence of any intention or will will prevent any occurrence from being an action, and the absence of malice * will prevent any action from being a crime. (Stephen's Crim. Law, 85.) "There are no agencies in crime." (E. Darwin Smith, J., Lowenstein v. The People, 54 Barb. 305; and see cases cited 11 Abb. Pr. R. 100.) If a person does an act with a guilty intent, he is not the agent of any one. If he does it innocently, he is the agent of some person or persons; and if two have agreed to employ him, he is the agent of both. (Alderson, B., Reg. v. Bull, 7 Law Times, 8; and see Moloney v. Bartley, 3 Camp. 210; Hecker v. De Groot, 15 How. Pr. R. 314, and post, $8 265-7.) * See post, Publisher. * See ante, note to § 67, and post, Publisher, § 121. wrong. The prima facie liability for the commission of a wrongful act can be avoided only by showing some defense or lawful excuse. Showing the act to have been done with a good intent would not of itself, in any case, constitute a defense or lawful excuse. The consequences of an act are incidents to the act, and inseparable from the act. Liability for the one is inseparable from liability for the other. The usual ground upon which this liability for the consequences of an act is placed is, that the law presumes every one to intend the necessary and natural consequences of his acts.' The phrase, the law presumes, is objectionable. The law does not presume.2 It is customary to say that the law presumes every one innocent; every one of good repute; every wrongful act to be malicious; every one to intend the consequences of his acts, &c. But it is not so. If one is accused of wrong, the law requires proof of his guilt, not because 1 The law presumes a person to intend the injury his acts are calculated to produce. (Haire v. Wilson, 9 B. & Cr. 643; Viele v. Gray, 10 Abb. Pr. R. 7, and a series of dicta.) A man is as much answerable for the probable consequences of his act as for the actual object. (Rex v. Moore, 3 B. & A. 184.) 'It is a universal principle that, when a man is charged with doing an act (that is a wrongful act without any legal justification) of which the probable consequences may be highly injurious, the intention is an inference of law resulting from the doing the act." (Rex v. Dixon, 3 M. & S. 15; cited Reg. v. Hicklin, Law Rep. 3 Q. B. 375.) 2 We are not unmindful of the fact that the books are full of such expressions, as the law presumes, presumption of law, &c. But the phrase is objectionable and should be reformed. Burrill says, the presumption is rather an assumption. (Presump. Ev. 10, 43; and see 6 Lond. Law Mag. 354.) The inference, for it is absurd to call it a presumption. (Stephen's Crim. Law, 182.) "Presumptions of fact are but inferences drawn from other facts." (Mason, J., O'Gara v. Eisenlohr, 7 Trans. App. 317.) Distinction between presumption of evidence and presumption of law, see The People v. McCann, 16 N. Y. 66; Powell v. Cleaver, 2 Brown Ch. R. 499.) Presumptions are not based on the supposition that the fact presumed exists, but because the policy of the law requires such a presumption. (Doe v. Earnhart, 10 Ired. Law Rep. 516.) Presumption “is the inference of one fact from another." (Duncan v. Little, 2 Bibb, 426.) Counsel: It must be assumed that the trustee will do his duty. Pollock, Ch. B.: We must assume nothing either way, but he may not. (Bulnois v. Mann, Law Rep. 1 Ex. 30.) The presumption that every one is bound to know the law has no foundation in fact. (Judge Taney, Blackwell's Tax Titles, 575, note.) it presumes him innocent, but because it does not presume him guilty, and requires the fact to be proved. One complaining of injury to his reputation is not excused from proving his reputation to be good because the law presumes his reputation to be good, but because the law does not presume it bad. On proof of a wrongful act the law will punish it as a wrong, not because it presumes the act to be malicious, but because it does not presume there was any legal excuse for doing the act. An act being wrongful is prima facie a wrong, and if it is not, the burden of showing the legal excuse to exist is on the actor, or whoever is liable for the act. One is liable for the consequences of his acts because the law will not presume the actor intended any other than the consequences of his act, not because the law presumes any intention. It would be as illogical and unfair to presume that one did not intend to do exactly what he has done, as it would be unwise to allow one to say he did not intend to effect the necessary and natural consequences of his acts. $69. In every transaction brought before a court of law for adjudication two questions always arise: (1) what are the facts, and (2) what is the law applicable to those facts? The court always decides the questions of law. Some questions of fact are decided by the court, and some by the jury.' Courts control the decisions of juries 1 For twelve honest men have decided the cause, On the motion for a new trial in the case of the Dean of St. Asaph (3 T. R. 428, note), Lord Mansfield misquoted the above lines as thus: For twelve honest men have decided the cause, Who are judges of facts, though not judges of laws. The author was Mr. Pulteny, and they were written on the occasion of the failure of the prosecution against "The Craftsman." (See 21 State Trials, 847, 1046; 17 Id. 625; Forsyth's Hist. of Trial by Jury, 272; Popular Progress in England, 89; 2 Political Ballads of 17th and 18th Centuries, by Wilkins; Lord Campbell, Lives of the Chancellors Vol. VI, p. 176, Life of Lord Hardwicke.) on questions of fact. (1) By determining whether or not the evidence adduced tends any way to prove the fact in issue; whether there is some evidence or no evidence. (2) By deciding in some cases that certain established facts warrant or do not warrant certain inferences, and requiring the jury to accept such inferences as proved. (3) By deciding what evidence is to be regarded, and what disregarded, whether as going to prove or disprove a fact, or to affect damages. (4) By granting new trials when they deem the verdict as contrary to or as against evidence, or the damages excessive or inadequate. The connection between one fact and another, as cause and effect, is always a question of fact. It is the degree of probability of such connection which leads. courts to determine whether they decide the question, or whether they leave it to the jury to decide. (1) If one event is very generally the cause of a certain other event, the courts lay down the general rule that the proof of the one event is the proof of the other, and do not allow juries to decide contrariwise. (2) If one event is often but not so generally the cause of a certain other event, then the courts leave it to the jury in each case to decide whether or not in that particular case that certain other event has followed. The necessary consequences of an act always follow the act, and therefore the courts pronounce it a rule of evidence that the proof of the act is proof of its necessary consequences, and the jury may not find otherwise. The natural and proximate consequences of an act do The judge put back the jury twice because they offered their verdict contrary to the evidence. (Clayton, 50.) Instances of judges taking questions of fact out of hands of jury. (Wright v. Orient Mut. Ins. Co. 6 Bosw. 269; Wells v. Com. Mut. Ins. Co. 46 Barb. 413; Clarke v. Rankin, 46 Barb. 571, and numerous cases.) Juries are assistants to the courts in determining some issues of fact. (Forsyth's Hist. Trial by Jury.) In Vermont by statute the courts are forbidden to grant new trials because they differ from the jury as to the weight of testimony. (Stearns v. Howe, 12 Vt. 579.) often, but not always, follow the act; therefore the jury decide in each case whether or not those consequences have followed in that particular case. § 70. In every slander there are two acts: (1) the composing, and (2) the publishing. In every libel there are three acts: (1) the composing, (2) the writing, and (3) the publishing. The act which is the essential element in the wrongs slander and libel, is a wrongful publication of language (§ 23), and the general prohibition ($49) as applicable to those wrongs would be: No one shall, without legal excuse, publish language concerning another or his affairs which shall occasion him damage. In other words: Every publication of language concerning a man or his affairs, which, as a necessary or natural and proximate consequence occasions pecuniary loss to him, is prima facie a slander or a libel-a slander, if the publication be oral; a libel, if the publication be by writing. This, it must be remembered, is not a description, much less a definition of a slander or a libel, but merely a description of what is prima facie a slander or a libel. 71. In describing or defining a slander or a libel, it is customary to enumerate among its requisites (1) that the language must be defamatory, (2) false, and (3) that the publication must be with malice, or made maliciously. We shall endeavor to give sufficient reasons for omitting these three supposed requisites from our description. 72. To constitute a slander or libel, must the language be defamatory? This question suggests others: What is meant by defamatory? Does defamatory mean more than discommendatory? It appears to us that to say the language must be defamatory, is only stating a portion of what is implied in saying that it must be such language as by a necessary or natural and proximate consequence occasions pecuniary loss to him whom, or whose affairs, it concerns. It is scarcely conceivable that any |