Oliver Wendell Holmes. sion, but it is highly gratifying to find the question approached in the same manner by the spokesman of the majority and by the dis senting judge. "In many cases, says Judge Hammond, speaking for the court, "the law fulness of an act which causes damage to an other may depend upon whether the act is for- justifiable cause: and this justification may be found sometimes in the circum stances under which it is done irrespective of motive, sometimes in the motive alone, and sometimes in the circumstances and motive combined. ... It is manifest that not much progress is made by such general state ments (as that a bad motive cannot make unlawful an act otherwise lawful) whatever may be their meaning." And he addresses himself to the specific question then before the court by asking "under what circum stances, including the motive of the actor, is the act complained of lawful, and to what extent?" "I agree," says Judge Holmes, "that the conduct of the defendants is action able unless justified." Massachusetts, the country at large, is by no means done with these questions. They recur with ever increasing frequency and ever increasing gravity. Progress or retrogres sion depends on a wise solution of them. And the first requisite to a wise solution is a clear comprehension of the issue. It is believed that clear comprehension, or. at all events, clear statement, can be reached only if the question is stated in terms of justification, as Judge Holmes alone states it in Vegelahn;>. Guntner, and as both opinions state it in Plant v. Woods. But, however this may be, our court has adopted Judge Holmes' meth od of statement, and a comparison of the majority opinions in the two cases cited will show the gain in clearness of expression. The English courts have broken down miserably in an attempt to decide similar questions by what Judge Holmes called in Vegelahn v. Guntner "general propositions of law which nobody disputes." The first head-note in the
recent bitterly contested case of Allen v. Flood, as reported in (1898) A. C. i, is: "An act lawful in itself it not converted by a ma licious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action." As Hammond, J., in writing the opinion of the court in Plant v. Woods, keenly says: "If the meaning of this and sim ilar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the pro position is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circum stances," the proposition is not "either logi cally or legally accurate." Indeed, few law yers even in England found comfort in the generalities of the House of Lords. Three years later, in Quinn T1. Leathern, (1901) A. C. 495, Allen v. Flood was "explained and its real effect stated." The House of Lords can hardly come nearer to overruling itself. Owing to the circumstance that by the rever ential if somewhat inconvenient fiction of English procedure, Allen v. Flood and Quinn v. Leathern, being judgments of the House of Lords, are both law, the lower courts are now in hopeless confusion, drifting hither and thither without chart or compass. Of course Judge Holmes goes to Washing ton with an open mind. The many decisions of our court on constitutional questions in which he has taken part will no longer exert upon him more authority than is due to the force of their reasoning. It is idle to scan them too narrowly in a curious attempt to prophesy his decision on particular questions which may come before him hereafter. Never theless, a leopard may as easily change his spots as a mature thinker his whole manner of thinking. It is interesting, therefore, to observe at this time the kind of reception
