Page:Harvard Law Review Volume 8.djvu/21

5 PRIVILEGE, MALICE, AND INTENT. 5 abstain from making a certain kind of contract oneself, whether maliciously, in order to prevent others from contracting with the plaintiff, or for a more harmless motive. Still more important it is, and more to the point of this paper, that, in spite of many- general expressions to the contrary, the conclusion does not stand on the abstract proposition that malice cannot make a man liable for an act otherwise lawful. It is said that if this were not so a man would be sued for his motives. But the proposition is no more self-evident than that knowledge of the circumstances under which an act is done cannot affect liability, since otherwise a man would be sued for his knowledge, a proposition which is obviously untrue. In a proper sense, the state of a man's consciousness always is material to his liability, and when we are considering the extent of a man's privilege knowingly to inflict pecuniary loss upon his neighbor, it would not be surprising to find that in some cases motives made all the difference in the world. I pass to the inquiry, whether privilege, sometimes at least, is not dependent upon the motives with which the act complained of is done. Take a case where, as in the last one, the harm complained of is a malicious interference with business, but where the means employed (the act of the defendant) are different. I assume that the harm is recognized by the law as a temporal damage, that not being the object of this discussion. I assume also that the defend- ant's act is not unlawful or a cause of action unless it is made so by reason of the particular consequence mentioned, and the defend- ant's attitude toward that consequence. I assume, finally, that the acts or abstinences of third persons induced by the defendant are lawful. If a case could be put where the defendant's act was justi- fied by no grounds of policy more special or other than the general one of letting men do what they want to do, it would present the point which I wish to raise. Such a case I find hard to imagine, but if one should occur, I think courts would say that the benefit of spontaneity was outweighed by the damage which it caused.^ The gratification of ill-will, being a pleasure, may be called a gain, but the pain on the other side is a loss more important. Other- wise, why allow a recovery for a battery? There is no general 1 Possibly, one is suggested by Keeble v. Hickeringill, 1 1 East, 574, n., and Tarleton V. M'Gawley, Peake, 205, — we may suppose people to be kept away from the plaintiff by the malicious firing of guns, otherwise lawful. These cases will be found in i Ames & Smith, Cases on Torts, which contains an excellent selection of decisions bearing on the subject of this article.