1

But looking at the evidence, the instructions of the
judge, and the judgments, evidently they did not
mean that the ultimate motive of the defendants was
not to benefit themselves. The defendants meant to
benefit themselves by making the plaintiff submit,
just as, in the other case, the defendants meant to
benefit themselves by driving the plaintiff away. It
might be said that the defendants were free not to
contract, but that they had no right to advise or
persuade the contractors who would have dealt with
the plaintiff not to do so, and that, by communicating
the union's willingness to deal with the contractors,
if they would not deal with the plaintiff, the defend-
ants were using such persuasion. But if this refine-
ment is not a roundabout denial of the freedom not
to contract, since a man hardly is free in his abstain-
ing unless he can state the terms or conditions upon
which he intends to abstain, at all events the same
mode of reasoning could be used in the cases where
the defendant escapes. The ground of decision
really comes down to a proposition of policy of rather
a delicate nature concerning the merit of the par-
ticular benefit to themselves intended by the defend-
ants, and suggests a doubt whether judges with differ-
ent economic sympathies might not decide such a
case differently when brought face to face with the
issue.

Another illustration may be drawn from other
cases upon boycotts. Acts which would be privi-
leged if done by one person for a certain purpose
may be held unlawful if done for the same purpose

1

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in combination. It is easy to see what trouble may be found in distinguishing between the combination of great powers in a single capitalist, not to speak of a corporation, and the other form of combination. It is a question of degree at what point the combination becomes large enough to be wrong, unless the knot is cut by saying that any combination however puny is so. Behind all is the question whether the courts are not flying in the face of the organization of the world which is taking place so fast, and of its inevitable consequences. I make these suggestions, not as criticisms of the decisions, but to call attention to the very serious legislative considerations which have to be weighed. The danger is that such considerations should have their weight in an inarticulate form as unconscious prejudice or half conscious inclination. To measure them justly needs not only the highest powers of a judge and a training which the practice of the law does not insure, but also a freedom from prepossessions which is very hard to attain. It seems to me desirable that the work should be done with express recognition of its nature. The time has gone by when law is only an unconscious embodiment of the common will. It has become a conscious reaction

14 See State v. Donaldson, 32 N.J. 191; State v. Glidden, 55 Conn. 46; Camp v. Commonwealth, 84 Va. 927; Lucke v. Clothing Cutters' & Trimmers' Assembly No. 7, 507, K. of L., 26 Atl. R. 505; Jackson v. Stanfield, 36 N.E.R. 345 (Indiana, 1894); Mogul Steamship Company v. McGregor, 23 Q.B.D. 598, 616 (1892); App. Cas. 25, 45. The cases are not quite unanimous. Bohn Manufacturing Co. v. Hollis, 55 N.W.R. 1119 (Minnesota, 1893).

15 23 Q.B.D. 617.

upon itself of organized society knowingly seeking to determine its own destinies.

To sum up this part of the discussion, when a responsible defendant seeks to escape from liability for an act which he had noticed was likely to cause temporal damage to another, and which has caused such damage in fact, he must show a justification. The most important justification is a claim of privilege. In order to pass upon that claim, it is not enough to consider the nature of the damage, and the effect of the act, and to compare them. Often the precise nature of the act and its circumstances must be examined. It is not enough, for instance, to say that the defendant induced the public, or a part of them, not to deal with the plaintiff. We must know how he induced them. If by refusing to let them occupy a building, or to employ them, the answer may be peremptory in his favor, without regard to other circumstances. If by acts wrongful for other reasons, the answer falls outside my subject. If by advice, or combined action not otherwise unlawful, motive may be a fact of the first importance. It is entirely conceivable that motive, in some jurisdictions, should be held to affect all, or nearly all, claims of privilege. The cases which I have cited, by way of illustration, come from different States, and might not be regarded as being so consistent with each other as I have assumed them to be. But in all such cases the ground of decision is policy; and the advantages to the community, on the one side and the other, are the only matters really

entitled to be weighed. I only wish to add that thus far, when the act of a third person is nearer to the harm than the act of the defendant, I have assumed the former to be lawful. I have said nothing as yet of privilege in connection with wrongful acts of others. Also I have left on one side exceptional cases where the act induced by the defendant would have been a tort or a crime had the third person had his knowledge, for instance, the innocent giving of a poisoned apple. If the harm were of a more serious nature than loss of business, that naturally would narrow the privilege, but it is not likely to be so in the cases which I have had in mind.

I now pass to an entirely different class of cases. In these, intent to produce the harm complained of has an importance of its own, as distinguished from notice of danger on the one side, and from actual malice on the other. To begin at a little distance, one of the difficulties which must occur to every one in thinking of the external standard of liability is: if notice so determined is the general ground, why is not a man who sells fire-arms answerable for assaults committed with pistols bought of him, since he must be taken to know the probability that, sooner or later, some one will buy a pistol of him for some unlawful end? I do not think that the whole answer to such questions is to be found in the doctrine of privilege. Neither do I think that any instruction is to be got from the often-repeated discussions as to cause. It is said that the man whose wrong-doing is nearest to the injury is the only cause of it. But,

16

as is pointed out in Hayes v. Hyde Park, a man whose act is nearest to the injury is as much a cause when his act is rightful, as when it is wrongful. Yet an intervening act may not exonerate the defendant.

The principle seems to be pretty well established, in this country at least, that every one has a right to rely upon his fellow-men acting lawfully, and, therefore, is not answerable for himself acting upon the assumption that they will do so, however improbable it may be. There may have been some nibbling at the edges of this rule in strong cases, for instance, where only the slight negligence of a third person intervenes, or where his negligence plays only a subordinate part, but the rule hardly will be disputed. It applies in favor of wrong-doers as well as others. The classical illustration is, that one who slanders another is not liable for the wrongful repetition of the slander without his authority; but the principle is general." If the repetition were privileged, and so rightful, and also were manifestly likely to happen, the law might be otherwise.18

But the case is different when a defendant has not stopped at the point of saying, I take it for granted that my neighbors will keep to the law, and I shall not let myself be checked in doing what I like, by the danger which there would be, if they acted un

16 153 Mass. 514.

17 Ward v. Weeks, 7 Bing. 211, 215; Cuff v. Newark & New York R.R., 6 Vroom, 17, 32; Clifford v. Atlantic Mills, 146 Mass. 47; Tasker v. Stanley, 153 Mass. 148, 150.

18 Elmer v. Fessenden, 151 Mass. 359, 362, and cases cited. See Hayes v. Hyde Park, 153 Mass. 514.