never forgiven Hastings v. Stetson 58 for being so perversely wrong, and so I do not see why I should be reconciled to the Arsenic-inSilk case,59 which instead of paring down Hastings v. Stetson gave it a new application; in these days of more widespread touchiness on public sanitation, it would be worth while to raise the question again.

60

Acting at Peril. For damage by Buildings, the Division Fence case gave us a most restorative survey of the principle, remedying the confusion caused by the unfortunate opinion of a prior judge in the Chimney case,61 and epitomizing the doctrine of "The Common Law." For Defamation, we owe him a perpetual debt for the dissenting opinion in the case of the Wrong Initials; 62 and the sure hand of one who is merely fitting a new instance into a general system is here seen in striking contrast to the juristic helplessness of the English opinions in the later case of the Imaginary British Tripper's case.63

III. THE EXCUSE ELEMENT

In this large field one must be content only to note here and there some of the opinions in which the general maxims of life and the doctrines of "Privilege, Malice, and Intent" were most individually illustrated.

58 126 Mass. 329 (1879) (Gray, C. J.: "One who utters a slander is [as a matter of law] not responsible . . . for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control"). This is just as perverse to human nature as Lord Ellenborough's well-known horse-pond illustration in Vicars v. Wilcocks, 8 East 1 (1806).

59 Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208 (1890) (defendant physician made a false statement that there was arsenic in the silk used in the plaintiff's factory; some of the plaintiff's workmen left him, acting on a repetition of the rumor; held, no recovery, at least unless the repetition was privileged, as to which, no decision). 60 Quinn v. Crimings, 171 Mass. 255, 50 N. E. 624 (1898) (injury by fall of a division fence between land of A. and the defendant; the plaintiff was on A.'s land, and the part that fell was for A. to repair). I wonder what other judge would have considered and cited the latest editions of CLERK & LINDSELL, POLLOCK, and JAGGARD, thus paying homage to scientific discussion of the law.

61 Cork v. Blossom, 162 Mass. 330, 38 N. E. 495 (1894).

62 Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462 (1893) (the defendant chronicled the arrest and fining of "H. P. Hanson, a real estate and insurance broker of South Boston"; this described the plaintiff; but the person fined was A. P. H. Hanson, another real estate and insurance broker of South Boston; the majority opinion exonerated the defendant).

63 Jones v. Hulton, L. R. [1909] 2 K. B. 444.

64

In Contributory Negligence, the Closed Hatchway case gave a concise demonstration of one limit of that doctrine. In the Mudhole case the opinion pointed out the fundamental principle of election of dangers.65 In its application to trespassers and licensees, the limitations of the principle were worked out, as to defects of the premises 66 and as to ruthless conduct of the proprietor; 67 and in the Railroad Crossing case the whole law of that part of the subject is almost codified.68

Under Necessities for Protection from Calamities, a commonplace incident of city life, in the Drunken Passenger case,69 is made the text for propounding one of the greatest and least developed doctrines of our law, that "a man cannot shift his misfortunes to his neighbor's shoulders," and the possible limits of it are outlined. The contrary principle has of late been put forward - "Not kennt kein Gebot" - by government-appointed German professors attempting to justify the Prussian Government's foul and egoistic sacrifice of innocent Belgium as a measure of self-protection against alleged would-be aggressors. Morality, chivalry, sociology, and (let us hope) Anglo-American law 70 do not sanction an insidious

64 Pierce v. Cunard S. S. Co., 153 Mass. 87, 26 N. E. 415 (1891) (a workman between decks was smothered by a fire; the defendant's agent had later closed the hatches, preventing egress). In a dozen other opinions, the questions were of only passing interest.

65 Pomeroy v. Westfield, 154 Mass. 462, 28 N. E. 899 (1891) (the plaintiff drove home at night over a known dangerous road, “and allowed his horse in the darkness to go unguided around the mud-holes and past the culvert").

66 Reardon v. Thompson, 149 Mass. 267, 21 N. E. 369 (1889) ("No doubt a bare licensee has some rights; the landowner cannot shoot him"). Sheehan v. Boston, 171 Mass. 296, 50 N. E. 543 (1898) (walking on the grass in a park).

67 Palmer v. Gordon, 173 Mass. 410, 53 N. E. 909 (1899) (the defendant's cook dashed hot water on some annoying boys who would not leave his kitchen); Riley v. Harris, 177 Mass. 163, 58 N. E. 584 (1900) (licensee bit by a dog).

68 Chenery v. Fitchburg R. Co., 160 Mass. 211, 35 N. E. 554 (1893); foreshadowed by June v. Boston & Albany R. Co., 153 Mass. 79, 26 N. E. 238 (1891).

I need not here notice the numerous opinions applying the principle (usually confined to the facts of each case) to employees; there are some forty of them. The most notable is Schlemmer v. Buffalo, Rochester & Pittsburg R. Co., 205 U. S. 1, II (1906), where a brief but unique passage points out the relation between assumption of risk and contributory negligence. For lack of such juristic analysis, our present law is here in a pottering condition.

69 Spade v. Lynn & Boston R. Co. (second appeal), 172 Mass. 488, 52 N. E. 747 (1899) (the plaintiff, a woman passenger, was injured by the jostling caused by the defendant's conductor forcibly removing a drunken man from the car).

70 Gilbert v. Stone, Aleyn 35 (1648); Scott v. Shepherd, 2 W. Bl. 892 (1773) (Black

doctrine whose abominable consequences are thus illustrated on an international scale.

Under Necessities of Industrial Livelihood, we come to some of his most distinctive opinions.71 They deserve an essay or a treatise by themselves; for they invoke and expound a whole philosophy of the economic struggle, with careful shaping of particular distinctions for the several typical situations. No man can consider himself to have a respectable conviction on this subject unless he has faced and settled with the dissenting opinion in Vegelahn v. Guntner. The only opinions (that I know of) to be even mentioned with it in their breadth of thinking are those of Stevenson, V. C., in Booth v. Burgess 72 and of Baker, J., in Iron Molders' Union v. Allis-Chalmers Co.73

Under Necessities of Fair Trade, the Watch case 74 furnished a notable opinion defining limitations on thievery of business good will by dwellers in a common locality; and the Pill case,75 by users of a common process.

Under Necessities of Landed Improvements, a series of opin

stone, J.: “Not even menaces from others are sufficient to justify a trespass against a third person"); Queen v. Dudley & Stephens, L. R. 14 Q. B. D. 273 (1884) (Coleridge, C. J., p. 287: "It is not needful to point out the awful danger of admitting the principle which has been contended for"); Campbell v. Race, 7 Cush. (Mass.) 408 (1851); Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N. W. 221 (1910); Notes in HARV. L. REV. VII, 302; VIII, 414; XIII, 599; XXIII, 490; 10 COL. L. REV. 372; John H. Wigmore and Henry C. Hall, "Compensation for Property Destroyed to stop the Spread of a Conflagration," I ILL. L. REV. 501.

Ι

In Boston Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85 (1893), another instance of the Anglo-American principle had already been dealt with in an opinion of Justice Holmes.

" Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077 (1896) (dissenting); May v. Wood, 172 Mass. 11, 51 N. E. 191 (1898) (dissenting); Weston v. Barnicoat, 175 Mass. 454, 56 N. E. 619 (1900); Plant v. Woods, 176 Mass. 492, 57 N. E. 1011 (1900) (dissenting); Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125 (1901); Aikens v. Wisconsin, 195 U. S. 194 (1904). I regard the majority opinion in May v. Wood as one of the most repulsive ever written on the subject by any court.

72 72 N. J. Eq. 181, 65 Atl. 226 (1906).

73 166 Fed. 45 (1908).

74 American Waltham Watch] Co. v. United States Watch Co., 173 Mass. 85, 53 N. E. 141 (1899). In his later opinion in the Waterman Pen case (235 U. S. 88 (1914)), the variance from earlier doctrine was more apparent than real; but because of the general needs to-day of greater strictness of legal protection, I ventured to call public attention to the unfortunate trend of modern cases ("Justice, Commercial Morality, and the Federal Supreme Court: the Waterman Pen Case," 10 ILL. L. REV. 178). 75 Jacobs v. Beecham, 221 U. S. 263 (1911).

ions 76 shrewdly works out sensible rules, exemplifying a favorite maxim, calculated to exhibit the dominance of life over logic, that "most differences are only differences of degree, when nicely analyzed."

Under Necessities of Free Discussion (Defamation), two great opinions are recorded. The Disbarment case 77 is a concise treatise on the privilege for publishing a report of judicial proceedings. The New York Custom-House case 78 is an equally concise but adequate summary of the principle of fair criticism, as distinguished from assertion of fact.

Under Necessities for Independence of Public Officers, we reach, in the Glanders case,79 opposing opinions which twenty-five years ago made a landmark for the development of a principle now second to none in its importance to future governmental conditions — the principle of a public officer's immunity for private harm done by him in good faith, but by error of fact or opinion, in exercising his office. Modern officialized sanitation and the like makes this one of the great questions of the coming century. National traits and traditions are involved. Germany and France, starting at opposite extremes, have both shifted somewhat. American conditions (pace some of our younger Ph.D. political scientists) still pretty much fit the frank description of older British conditions by the genial De Grey, C. J.: 80

76 Rideout v. Knox, 148 Mass. 368, 19 N. E. 390 (1889) (the spitefence); Smith v. Morse, 148 Mass. 407, 19 N. E. 393 (1889) (same); Middlesex Co. v. McCue, 149 Mass. 103, 21 N. E. 230 (1889) (silting up of a pond by cultivation of a hillside); Bainard v. Newton, 154 Mass. 255, 27 N. E. 995 (1891) (discharge of sewage into a brook); Buckley v. New Bedford, 155 Mass. 64, 29 N. E. 201 (1891) (overflow of sewage).

77 Cowley v. Pulsifer, 137 Mass. 392 (1884).

78 Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1 (1891). Under Necessities for Freedom of Parties' Resort to Courts (Malicious Prosecution), no case seems to have given him special inspiration to a creative opinion. Allen v. Codman, 139 Mass. 136, 29 N. E. 537 (1885) (advice of counsel as to probable cause); Krulevitz v. Eastern R. Co., 143 Mass. 228, 9 N. E. 613 (1887) (unlawful mode of arrest); Gray v. Parke, 162 Mass. 582, 39 N. E. 191 (1895) (probable cause, on the facts); Connery v. Manning, 163 Mass. 44, 39 N. E. 558 (1895) (similar); Burt v. Smith, 203 U. S. 129 (1906) (preliminary injunction as evidence of probable cause). 79 Miller v. Horton, 152 Mass. 540, 26 N. E. 100 (1891) (officers were by law authorized to kill diseased horses; they killed the plaintiff's horse, but it was not diseased; the majority opinion, by Holmes, J., held that the officers were not protected from liability).

80 Miller v. Seare, 2 W. Bl. 1141, 1144 (1777).

"The defendant we personally know to be a gentleman of the utmost integrity and honour; but in the country very low and obscure men often creep into the commission, and to arm them with such arbitrary powers would be of the most terrible consequence."

And so it is a satisfaction to find that our Justice has left his impress here also to guide the future.

And after all it is perhaps these trifling cases of a yeoman's plow-horse in the obscure village of Rehoboth, Massachusetts, that have given the greatest zest to our Justice, amidst the lucubration of tedious records and the balancing of acute arguments. Himself has somewhere said it (and it is a passage which confers a perdurable doctorate of dignity upon the daily judicial task):

"My keenest interest is excited, not by what are called great questions and great cases, but by little decisions which the common run of selectors would pass by because they did not deal with the Constitution or a telephone company, yet which have in them the germ of some wider theory, and therefore of some profound interstitial change in the very tissue of the law. The men whom I should be tempted to commemorate would be the originators of transforming thought. They often are half obscure, because what the world pays for is judgment, not the original mind. . . . This day marks the fact that all thought is social, is on its way to action; that, to borrow the expression of a French writer, every idea tends to become first a catechism and then a code; and that according to its worth his unhelped meditation may one day mount a throne, and without armies, or even with them, may shoot across the world the electric despotism of an unresisted power."

NORTHWESTERN UNIVERSITY LAW SCHOOL,

Chicago, Illinois.

John H. Wigmore.