Page:Harvard Law Review Volume 8.djvu/69

Rh — In dealing with the contention of the defendant in Pullman v. Hill, L. R. (1891) 1 Q. B. 524, where it will be remembered that the occasion was held not to be privileged when a merchant dictated a libellous letter to his stenographer to be type-written, Kay, L. J., remarked: "The consequences of such an alteration in the law of libel would be this: that any merchant, or any solicitor, who desired to write a libel concerning any person, would be priviliged to communicate the libel to any agent he pleased, if it was in the ordinary course of his business."

This dictum is of interest in view of the recent case of Boxsius v. Goblet Frères et al., 10 Times L. R. 324, where a sharp distinction is drawn between merchants and solicitors. Both cases were in the Court of Appeal. In the latter, the court recognized the fact that it was an ordinary and frequent part of the busiiness of solicitors to write letters containing defamatory matter, and, on that account, it concluded that solicitors should be allowed to discharge their duty to their clients in such a reasonably necessary and usual way as dictating letters, though libellous, to a stenographer, and having them afterwards copied by an office boy in a copy press. The decision seems sound, and in no way contradictory to the former case, if it simply enforces that well-established condition of privilege, that a defendant must not give a libellous statement greater publicity than is apparently reasonably necessary to discharge the duty or protect the interest which gives rise to the "occasion;" but if it is to be inferred from the doubtful language of the decision, that the case of a solicitor is to be treated as an exception to the general rule, it may seem, especially to laymen, as if the court attempted to grant another exemption to an already favored profession. Rightly considered, the case should be regarded as laying down a principle equally applicable to occupations such as commercial agencies, where similar communications to clerks are just as essential.

— The Supreme Court of Massachusetts has several times within the past few years had to consider points in constitutional law whose decision turned upon questions of economics, and of the policy of farther extension of the powers and duties of the State, far more than upon the mere construction of the written instrument; and the opinions drawn out by the consideration of these points have shown a most interesting divergence. The cases are of two classes, — those which discuss contemplated regulation or assistance of private enterprise by the State, and those which discuss changes in the mode or extent of doing business by the State. In both sets of cases Mr. Justice Holmes is consistently in favor of the constitutionality, while not committing himself about the expediency, of the changes so far adjudicated upon by the court, and this, apparently, becaluse he can find no provisions in the Constitution which assuredly forbid such changes. In the Interchangeable Mileage Ticket Case, the best example of the first class of case es (Atty.-Gen. v. Old Colony R. R., 35 N. E. 252), he was accompanied by Mr. Justice Knowlton; and in the Municipal Coal Yards Case e (Opinion of the Justices, 155 Mass. 598), and on the question of the Referendum (Opinion of the Justices, 36 N. E. 488), examples of the second class, by Mr. Justice Barker.

On the other side, Chief-Justice Field once thought that a statute