Page:Harvard Law Review Volume 12.djvu/481

Rh The social question is which desire is strongest at the point of conflict. The judicial one may be narrower, because one or the other desire may have been expressed in previous decisions to such an extent that logic requires us to assume it to preponderate in the one before us. But if that be clearly so, the case is not a doubtful one. Where there is doubt the simple tool of logic does not suffice, and even if it is disguised and unconscious the judges are called on to exercise the sovereign prerogative of choice.

I have given an example of what seems to me the uninstructive and indolent use of phrases to save the trouble of thinking closely, in the expression "taking the risk," and of what I think a misleading use in calling every question left to the jury a question of fact. Let me give one of over-generalization, or rather of the danger of reasoning from generalizations unless you have the particulars which they embrace in mind. A generalization is empty so far as it is general. Its value depends on the number of particulars which it calls up to the speaker and the hearer. Hence the futility of arguments on economic questions by any one whose memory is not stored with economic facts. Allen v. Flood was decided lately by the English House of Lords upon a case of maliciously inducing workmen to leave the plaintiff's employ. It is made harder to say what the precise issue before the House was, by the fact that except in fragmentary quotations it does not appear what the jury were told would amount to a malicious interference. I infer that they were instructed as in Temperton v. Russell, in such a way that their finding meant little more than that the defendant had acted with knowledge and understanding of the harm which he would inflict if successful. Or if I should add an intent to harm the plaintiff without reference to any immediate advantage to the defendant, still I do not understand that finding meant that the defendant's act was done from disinterestedly malevolent motives, and not from a wish to better the defendant's union in a battle of the market. Taking the point decided to be what I suppose it to be, this case confirms opinions which I have had occasion to express judicially, and commands my hearty assent. But in the elaborate, although to my notion inadequate, discussion which took place, eminent judges intimated that anything which a man has a right to do he has a right to do whatever his motives, and this has been hailed as a triumph of the principle of external