Page:Harvard Law Review Volume 8.djvu/224

208 208 HARVARD LAW REVIEW. able or probable ground did not exist, — a sensible requirement which we must not allow to obscure the true nature of this element. 2. The rejection or acceptance of the doctrine of Fletcher v. Rylands — the question whether the test of acting at peril or of due care under the circumstances shall be applied, a question of Responsibility — is sometimes confounded with the question whether one who has knowingly inflicted and continues to inflict a conceded harm is excusable because he is conducting his business in an ordinary and otherwise fair and reasonable manner. Thus, the question whether an electric-trolley railway is liable for electric interference with telephone wires is in part a question whether one party's convenience shall be subjected to another's, — a pure mat- ter of justification or excuse, like the claim of a land-owner to divert or flow back surface water by improvements on his land, or the claim of a manufacturer to diffuse smoke or cause vibration with impunity. Yet the two questions have by no means been kept separate in current discussion. 3. Another application of the above distinction, similar but of larger moment, has been made by Mr. Justice HOLMES in this Re- view in the article already referred to. He points out that the question of Malice, in connection with boycotts and similar inter- ference with social relations, is not usually one of Responsibility, /. e. of the Secondary limitations, but of Excuse, i. e. of the Ter- tiary limitations. We have the case of an inquiry conceded to be a harm and of a party conceded to be the source of it, i. e. we have the Damage and the Responsibility elements satisfied ; the problem is how to mark off the line of policy so as to determine where this harm maybe inflicted with impunity. It is conceded that there are certain circumstances about which there is no doubt, i. e. the nexus or right-and-duty extends to cases where fraud, or defamation, or violence is employed, and it does not extend to cases where mere peaceable persuasion not amounting to coercion, and not effected by combination, is the means used. In the debatable ground, one tendency of opinion is to draw the line according as the interference is accompanied or not by malice, i. e. (perhaps) is gratuitous and uncalled for by personal needs. Whether this opinion be the best or not, Mr, Justice HOLMES has demonstrated that we have in it, none the less, merely another form of the Tertiary limitation, /. e. of a doctrine of Excuse, independent of any doctrine of Responsi- bility, — a demonstration highly important to the scientific discus- sion of the subject