Page:Harvard Law Review Volume 8.djvu/23

PRIVILEGE, MALICE, AND INTENT. 7 for the sake of doing harm what is allowed him for the sake of good. Suppose, for instance, advice is given which manifestly tends to injure the plaintiff, but without thinking of him in fact, and that the advice would be privileged unless given in bad faith or maliciously, if expressly directed against the plaintiff. The advice could not be given maliciously as against the plaintiff unless he either was thought of, or was embraced in a class which was thought of. .Perhaps one of the reasons why judges do not like to discuss questions of policy, or to put a decision in terms upon their views as law-makers, is that the moment you leave the path of merely logical deduction you lose the illusion of certainty which makes legal reasoning seem like mathematics. But the certainty is only an illusion, nevertheless. Views of policy are taught by experience of the interests of life. Those interests are fields of battle. What- ever decisions are made must be against the wishes and opinion of one party, and the distinctions on which they go will be distinc- tions of degree. Even the economic postulate of the benefit of free competition, which I have mentioned above, is denied by an important school. Let me illustrate further. In England, it is lawful for merchants to combine to offer unprofitably low rates and a rebate to shippers for the purpose of preventing the plaintiff from becoming a com- petitor, as he has a right to do, and also to impose a forfeiture of the rebate, and to threaten agents with dismissal in case of dealing with him.^ But it seems to be unlawful for the officer of a trade union to order the members not to work for a man if he supplies goods to the plaintiff, for the purpose of forcing the plaintiff to abstain from doing what he has a right to do.^ In. the latter case the defendant's act, strictly, was giving an order, not refusing to contract; but perhaps the case would have been decided the same way if the same course had been adopted by unanimous vote of the union.^ So the right to abstain from contracting is not absolutely privileged as against interference with business. The combination and the intent to injure the plaintiff, 1 Mogul Steamship Company, Limited, v. McGregor, 1892, App. Cas. 25; 23 Q. B. D. 598. See also Bowen v. Matheson, 14 Allen, 499 (1867); Bohn Manufacturing Company v. Hollis, 55 N. W. R. 11 19 (Minnesota, 1893). 2 Temperton v. Russell, 1893, i Q. B. 715. 8 See Carew v. Rutherford, 106 Mass. i, and the cases below, as to combinatioa See, also, the further comments toward the end of this article.