done negligently; if there is no apparent danger, we call it mischance.

Furthermore, so far as liability for an act depends upon its probable consequences without more, the liability usually is not affected by the degree of the probability if it is sufficient to give the defendant reasonable warning. In other words, for this purpose commonly it does not matter whether the act is called malicious or negligent. To make a primâ facie case of trespass or libel, if the likelihood of bringing force to bear on the plaintff's person or of bringing him into contempt goes to the height expressed by the word negligence, as above explained, it need not go higher. There are exceptions, at least in the criminal law. The degree of danger under the known circumstances may make the difference between murder and manslaughter.' But the rule is as I have stated. The foregoing general principles I assume not to need further argument.2

But the simple test of the degree of manifest danger does not exhaust the theory of torts. In some cases, a man is not liable for a very manifest danger unless he actually intends to do the harm complained of. In some cases, he even may intend to do the harm and yet not have to answer for it: and, as I think, in some cases of this latter sort, at least, actual malice may make him liable when without it he would not have been. In this connection I mean

1 2 Bigelow, Fraud, 117, n. 3; Commonwealth v. Pierce, 138 Mass., 165. Compare Hanson v. Globe Newspaper Co., 159 Mass., 293. 2 See The Common Law, Ch. 2, 3, 4.

3

by malice a malevolent motive for action, without reference to any hope of a remoter benefit to oneself to be accomplished by the intended harm to another. The question whether malice in this sense has any effect upon the extent of a defendant's rights and liabilities, has arisen in many forms. It is familiar in regard to the use of land in some way manifestly harmful to a neighbor. It has been suggested, and brought to greater prominence, by boycotts, and other combinations for more or less similar purposes, although in such cases the harm inflicted is only a means, and the end sought to be attained generally is some benefit to the defendant. But before discussing that, I must consider the grounds on which a man escapes liability in the cases referred to, even if his act is not malicious.

It will be noticed that I assume that we have got past the question which is answered by the test of the external standard. There is no dispute that the manifest tendency of the defendant's act is to inflict temporal damage upon the plaintiff. Generally, that result is expected, and often at least it is intended. And the first question that presents itself is why the defendant is not liable without going further. The answer is suggested by the commonplace, that the intentional infliction of temporal damage, or the doing of an act manifestly likely to inflict such damage and inflicting it, is actionable if done without just cause. When the defendant escapes, the court

3 See Rideout v. Knox, 148 Mass., 368, 373.

✦ Walker v. Cronin, 107 Mass., 555, 562; Mogul Steamship Co. v. McGregor, 23 Q.B.D. 598, 613, 618.

is of opinion that he has acted with just cause. There are various justifications. In these instances, the justification is that the defendant is privileged knowingly to inflict the damage complained of.

But whether, and how far, a privilege shall be allowed is a question of policy. Questions of policy are legislative questions, and judges are shy of reasoning from such grounds. Therefore, decisions for or against the privilege, which really can stand only upon such grounds, often are presented as hollow deductions from empty general propositions like sic utere tuo ut alienum non laedas, which teaches nothing but a benevolent yearning, or else are put as if they themselves embodied a postulate of the law and admitted of no further deduction, as when it is said that, although there is temporal damage, there is no wrong; whereas, the very thing to be found out is whether there is a wrong or not, and if not, why

not.

When the question of policy is faced it will be seen to be one which cannot be answered by generalities, but must be determined by the particular character of the case, even if everybody agrees what the answer should be. I do not try to mention or to generalize all the facts which have to be taken into account; but plainly the worth of the result, or the gain from allowing the act to be done, has to be compared with the loss which it inflicts. Therefore, the conclusion will vary, and will depend on different reasons according to the nature of the affair.

For instance, a man has a right to set up a shop

in a small village which can support but one of the kind, although he expects and intends to ruin a deserving widow who is established there already. He has a right to build a house upon his land in such a position as to spoil the view from a far more valuable house hard by. He has a right to give honest answers to inquiries about a servant, although he intends thereby to prevent his getting a place. But the reasons for these several privileges are different. The first rests on the economic postulate that free competition is worth more to society than it costs. The next, upon the fact that a line must be drawn between the conflicting interests of adjoining owners, which necessarily will restrict the freedom of each; upon the unavoidable philistinism which prefers use to beauty when considering the most profitable way of administering the land in the jurisdiction taken as one whole; upon the fact that the defendant does not go outside his own boundary; and upon other reasons to be mentioned in a moment. The third, upon the proposition that the benefit of free access to information, in some cases and within some limits, outweighs the harm to an occasional unfortunate. I do not know whether the principle has been applied in favor of a servant giving a character to a master.

5

Not only the existence but the extent or degree of the privilege will vary with the case. Some privileges are spoken of as if they were absolute, to borrow the language familiar in cases of slander. For

5 See Middlesex Company v. McCue, 149 Mass. 103, 104; Boston Ferrule Company v. Hills, 159 Mass. 147, 149, 150.

instance, in any common case, apart from statutory exceptions, the right to make changes upon or in a man's land is not affected by the motive with which the changes are made. Were it otherwise, and were the doctrine carried out to its logical conclusion, an expensive warehouse might be pulled down on the finding of a jury that it was maintained maliciously, and thus a large amount of labor might be wasted and lost. Even if the law stopped short of such an extreme, still, as the motives with which the building was maintained might change, the question would be left always in the air. There may be other and better reasons than these and those mentioned before, or the reasons may be insufficient. I am not trying to justify particular doctrines, but to analyze the general method by which the law reaches its decision.

So it has been thought that refusing to keep a man in one's service, if he hired a house of the plaintiff, or dealt with him, was absolutely privileged." Here the balance is struck between the benefit of unfettered freedom to abstain from making the contract, on the one side, and the harm which may be done by the particular use of that freedom, on the other.

It is important to notice that the privilege is not a general one, maliciously to prevent making con

• See I Ames & Smith, Cases on Torts, 750, n.

7 Heywood v. Tillson, 75 Me. 225; Payne v. Western & Atlantic R. R., 13 Lea, 507. See Capital and Counties Bank v. Henry, 7 App. Cas. 741.