i8o
THE GREEN BAG
with the constitutional guaranty of the freedom of speech and of the press. He must define in some way who are private persons, and must make exceptions which will permit a free and untrammeled discussion of the fitness and capacity of candidates for public office, and of those holding public office." Such a statute, however, it would seem very difficult to frame and it is certain that no such law has yet been suggested by the advocates of it.
consequences of the defendant's act, except perhaps the harm to the plaintiff, which are not the desired results of that act. This is true of all the trade and labor cases falling under the class which we have discussed. In these cases, it does not make any difference in the legal result whether one takes into account motive in the sense of purpose, or, disregarding motive, looks at all the natural consequences of what the defendant did. All the cases which have been cited in which motive was regarded as material, would have TORTS (Unfair Competition. Motive) been decided the same way had motive been AN article by Prof. William Draper Lewis disregarded, but the consequences of the entitled, "Should the Motive of the Defendant defendant's act considered. When, however, Affect the Question of his Liability—The we have a case in which some of the conse Answer of One Class of Trade and Labor quences, though not desired, are nevertheless Cases," is printed in the February Columbia a natural result of the act, there may be and Law Review (V. 5, p. 107) in which the author probably will be a different legal conclusion concludes that "though there are cases to reached in accordance with whether we regard the contrary, the rule is to consider the motive motives or consequences as the factor to be of the defendant as a factor in determining the examined in determining the defendant's question of his liability for the harm which liability. So also in cases where the natural his act has caused the plaintiff." "There is consequences of the defendant's act taken as no positive evidence in any trade and labor case a whole would excuse the defendant for the that courts ever regard the ultimate motive harm he has done the plaintiff, the court may of the defendant." The judges who take hold the defendant liable or not according motive into consideration also hold that "if as to whether malice in the sense of ill-will is the natural consequences of the defendant's considered as affecting liability." act was the harm of which the plaintiff com plains, the defendant is liable unless he can show legal excuse. But if one natural con TROVER (Nature and History of) sequence of the defendant's act is taken into A THOUGHTFUL analysis of the modern law consideration to determine the question of his of trover since the simplification of forms of liability, why not all other natural conse action in England, which is of value to Amer quences? And if we should take into account ican lawyers, entitled "Observations on Trover all the natural consequences of the act, may and Conversion," by John W. Salmond appears it not be asked what difference should it make in the Law Quarterly Review for January, that the defendant desired those consequences (V. 21, p. 43) in which he shows that the ghosts or did not desire them? In other words, what of the old forms of action "still haunt the difference should it make that a particular precincts of the law" and that "the law of consequence was or was not the motive of the trover and conversion is a region still darkened defendant? Again, if the only consequence with the mists of legal formalism from which no of an act is harm to another, should the law man will find his way by the law of nature or in any case determine the actor's liability to with any other guide save the old learning of the injured person by the pleasure or pain writs and forms of action and the mysteries which he, the actor, obtained from contem of pleading." He explains that the action plating the harm he had caused? If this should of detinue which originally was the remedy not be taken into consideration, it means that for a conversion was unsatisfactory because malice in the sense of ill-will should have no the "defendant had the right of defending effect on the defendant's liability. himself by wager of law, a form of licensed "In most cases there are not any natural perjury which reduced to impotence all pro
