Page:Harvard Law Review Volume 8.djvu/20

4 owners, which necessarily will restrict the freedom of each; upon the unavoidable philistinism which prefers use to beauty when considering the most profitable way of administering the land in the jurisdiction taken as one whole; upon the fact that the defendant does not go outside his own boundary; and upon other reasons to be mentioned in a moment. The third, upon the proposition that the benefit of free access to information, in some cases and within some limits, outweighs the harm to an occasional unfortunate. I do not know whether the principle has been applied in favor of a servant giving a character to a master.

Not only the existence but the extent or degree of the privilege will vary with the case. Some privileges are spoken of as if they were absolute, to borrow the language familiar in cases of slander. For instance, in any common case, apart from statutory exceptions, the right to make changes upon or in a man's land is not affected by the motive with which the changes are made. Were it otherwise, and were the doctrine carried out to its logical conclusion, an expensive warehouse might be pulled down on the finding of a jury that it was maintained maliciously, and thus a large amount of labor might be wasted and lost. Even if the law stopped short of such an extreme, still, as the motives with which the building was maintained might change, the question would be left always in the air. There may be other and better reasons than these and those mentioned before, or the reasons may be insufficient. I am not trying to justify particular doctrines, but to analyze the general method by which the law reaches its decision.

So it has been thought that refusing to keep a man in one's service, if he hired a house of the plaintiff, or dealt with him, was absolutely privileged. Here the balance is struck between the benefit of unfettered freedom to abstain from making that contract, on the one side, and the harm which may be done by the particular use of that freedom, on the other.

It is important to notice that the privilege is not a general one, maliciously to prevent making contracts with the plaintiff, but is attached to the particular means employed. It is a privilege to