their own families. Under the remaining heads much fuller discussion is needed, to work out a sufficiently precise statement and adequate justification of the rules practically required; but of this further discussion, in such a treatise as the present, only a brief indication can be given. The general problem, presented to an individualistic legislator in different forms under these different heads, is that of adequately protecting A from loss, pain, or alarm, caused by the action of B, without unduly annoying or hampering B. In many cases experience alone can enable us to determine the best middle course to take between opposite dangers: but we may note some of the general considerations by which this course will be determined. I. It is one of the most obvious duties of men living in society to avoid causing physical injury or discomfort to others and where avoidable damage or serious annoyance of this kind has been even unintentionally inflicted, there is a prima facie ground for exacting adequate compensation from the doer to the sufferer of the harm. But we may reasonably go much further in repressing acts of this kind, when demonstrably done with intent to injure or coerce, than we can go in repressing similar acts done without any such intention: partly because an act externally the same becomes indefinitely more annoying and alarming when its intention is malevolent or coercive, partly because it is not usually a severe or dangerous restriction on any one's freedom of action to preclude him from efforts to annoy or alarm others. For instance, it may be slightly annoying to be pushed or jostled in a crowd: but if this annoyance were treated as a wrong, the care imposed by the duty of avoiding it under all circumstances would be a much greater burden than the annoyance it was designed to remedy: we may, however, reasonably treat as an offence any pushing or jostling with intent to annoy. II. The same point is important in considering how far A is to be legally restrained from causing loss or annoyance 1 The most difficult case is that of pure accident without anything like negligence. This will be discussed in a subsequent chapter (viii. § 2). to B by interfering with his relations with other persons. Here, however, we must first notice another distinction of fundamental importance: the interferer may either induce other persons, in domestic or social relations with B, to violate actual obligations, or he may merely induce them to abstain from making agreements with B, or rendering him services not legally due. The general expediency of prohibiting the former kind of interference is obvious: a man who commands or requests another to commit a wrong should be regarded as himself a wrong-doer. A partial exception, however, seems to be needed in the case of breaches of contract: since, in some cases, the performance of promises to render personal services would be inexpedient, as being much more injurious to the promiser than beneficial to the promisee; so that the law ought not to enforce specific performance of such promises, but only adequate pecuniary compensation for non-performance. It would therefore not be right in such cases to inflict any penalty on one who had advised a breach of contract, unless he had also advised non-payment of reasonable compensation, or unless his advice had been given with a demonstrable intent to injure or coerce the promisee. But in the case of contracts where specific performance should be legally compulsory such as contracts to pay money, or transfer other wealth-I conceive that the offering of inducements to break the contract should be regarded as a wrong. There is more difficulty where the acts to which the interferer offers inducement are acts in themselves lawful, though seriously damaging or annoying to B; since acts of this kind are inevitable incidents of industrial competition. That competition may go on, A must be allowed to persuade B's customers to desert him en masse, and transfer their custom to A, even though the result may be industrial ruin to B. Here it seems right to have regard partly to the ulterior intention; if the interference damaging to B is designed to promote A's business interests, in the ordinary course of the competition for industrial prosperity, it must be treated as legitimate-if otherwise lawful-in a society individualistically organised: but if its aim is demonstrably to injure B, it must be regarded as falling within the class of interferences which-if the mischief they cause be considerable-may be proper subjects for legal repression.1 One specially important mode in which a man's relations to other human beings are liable to be injuriously affected is by statements damaging to his reputation: at the same time a most important part of the mutual services which the members of any society are capable of rendering consists in pointing out defects in the character and conduct of others. Here, accordingly, the problem of preventing as far as possible injury to reputation without doing more harm by restricting freedom of communication, is peculiarly difficult. The simple solution of allowing true damaging statements to be made but prohibiting false ones, is not satisfactory since to penalise every untrue damaging statement, even though made in perfect good faith, would render the functions of warning and criticism too dangerous; on the other hand, there are many true statements of which the publication would be clearly mischievous, as the pain and bitterness caused by them would much outweigh their utility in the way of warning. Perhaps we may distinguish three classes of cases: : (1.) There are certain public occasions in which the importance to the community of a full and candid utterance of a man's belief seems to be so great as to outweigh entirely the risk of harm to private reputations from such utterance. Thus, according to English law, "the freedom of speech and debate in Parliament" cannot be "impeached or questioned. in any place outside Parliament"; an action will not lie against a judge for words spoken by him judicially, nor against an advocate, party, or witness in any case for anything relevant said in the course of judicial proceedings. And these securities seem to be required for the due performance of governmental functions. (2.) In other cases in which it is, generally speaking, 1 The propriety of interference of this kind, when its aim is coercive without being demonstrably malevolent, will be considered presently. clearly for the interests of society that men should state beliefs honestly entertained by them respecting the character or conduct of others, such statements, however injurious to reputation, should not entail a liability to legal penalties, even if they turn out to be unfounded, unless they can be shown to have been made from some improper motive, or with reckless disregard of the ordinary means of ascertaining truth. Examples of this class are confidential communications about the character of a servant; warnings given by a solicitor to a client, or a guardian to a ward; "fair comments on matters that have been brought before the public. (3.) In cases where there is no general probability of advantage to society from the free communication of candid. opinions, the importance of protecting individuals from damage to reputation would seem to outweigh the general considerations in favour of freedom of speech. In such cases, even if a man utters his honest opinion without malevolence, he should do so at the risk of having to make reparation if any statement seriously injurious to others should turn out to be false in any material point. It is more doubtful whether a man should be liable to be punished even for true defamatory statements, unless he can show that it was for the public benefit that they should be made; but probably it should be illegal to make such statements from malice, or with a view to private gain. III. A somewhat similar problem is presented in the case of injury done to a man by false statements made not about him but to him. If statements of this kind can be shown to have been made with intent to mislead, it seems clear that they-as well as other deceptive acts—should be repressed by making the deceiver liable for any serious damage caused by his deception. But if there is no demonstrable intention to deceive, the question is less easy; since it would too seriously hamper the freedom of human intercourse if a man were held legally responsible for all the harm done by statements made to other men without an exact regard to truth. If, however, A makes statements to B with the deliberate design of inducing him to act in a certain way for the promotion of A's interests, it is specially incumbent on him-and not too much to require-that he should resist the temptation to make statements which he does not know to be true, in the hope that they may turn out to be so; hence, in this case, not only consciously false but grossly reckless statements, which actually cause material damage, may fairly be regarded as wrongs needing reparation. IV. Under the head of moral coercion or intimidation, a distinction has to be taken similar to that which has already been pointed out in considering interference with social relations. There can be no doubt that to cause alarm by doing or threatening wrongful acts, or to endeavour by any kind of threats to induce a man to do wrongful acts or abstain from fulfilling definite duties, are wrongful interferences, which call for legal repression. But when A, by doing something in itself legitimate but damaging or annoying to B, induces B to act in a manner opposed to B's interests or inclination, but not involving a breach of legal duty, it is a more difficult question whether this kind of intimidation can in any case be regarded as a legal wrong from an individualistic point of view. We can hardly lay down that an intention to coerce renders an act wrong which would otherwise be legitimate, no less than an intention to injure. For there are many cases in which a coercive intent is also plainly beneficent, either in the interest of the person coerced or of the community as when a father notifies to a son that he will lose a legacy if he runs into debt, or when persons are prevented or reclaimed from vice by fear of exclusion from social relations. It would be paradoxical to regard such warnings and exclusions as wrongs, merely because they are intended to be coercive. Again, coercion of a certain kind is a natural incident of commercial exchanges: the buyer forces the seller to lower his price by refusing to buy, and vice versa. At the same time, whenever the direct or main intent of any action is to induce a man by fear of damage : |