The question of negligence in the field of terspass is only important where the injury was occasioned unintentionally; if a person intentionally does an injury, by a direct application of force, he is absolutely liable. If the injury was unintentional, liability may still attach, to the person inflicting such injury, through the presence of this element of negligence.

Although it is clearly recognized today that negligence is thus essential to liability for unintentional injury, the common law was very slow in adopting this principle. The doctrine that a man was absolutely liable civilly for the direct consequence of his act, was for a long time firmly established. The right to inquire into the state of mind of the party causing the injury, was long the distinguishing mark between criminal and civil actions for trespasses. Thus in "The Case of the Thorns"12 it was said, "If some one cuts trees and the boughs fall on a man and hurt him, in such a case, that man would have an action for trespass, and so, sir, if an archer shoots at a mark and his bow swerves in his hand and against his will he kills a man, this, as has been said, is no felony. But if he hurts a man with his arrow, this man will have a good action of trespass against him, although archery is lawful and the wrong which the archer did was against his will.,, The modern rule on this subject may be taken as laid down in Castle vs. Dwyer.13 In this case the defendant, who was the colonel of a regiment of State militia, after exercising his men at target practice, caused them to be drawn up for a few volleys with blank cartridges. Precautions were taken to see that all balls were withdrawn from the guns, but through some accident balls remained in one or more of the guns, and when the first volley was fired the plaintiff, a spectator, was severely injured. While it was recognized in this case that liability in this class of cases was not absolute and that some negligence must be proved, it was held that there was negligence in this case in firing at all in the direction of a crowd of people without positive knowledge that each musket contained no more than a blank cartridge.

12 Y. B., 6 Edw. IV, 7, p. 1,18.

13 2 Keyes (N. Y.), 169.