Page:The Green Bag (1889–1914), Volume 18.pdf/157

 THE GREEN BAG arise, to wit, can the intent to harm, where no motive good or bad appears, affect the defense? But this third question is the same in effect as the second, since when no motive is shown for causing intended harm, the case, in point of civil liability — in tort — is treated as the equivalent of one arising from a bad motive. It is doing the harm recklessly, and that, in the law of torts, is equivalent to malice in the ordinary sense of an evil motive. The point will be referred to again. The first question, whether intent to harm, where the motive is good, will destroy the defense of legal right, is answered in the negative both in this country and in Eng land.1 This probably is true, though in addition to the proper motive, such as a desire to promote one's welfare, there is also an intent to harm another out of illwill, and not merely as a means of promoting one's welfare: B may sink wells, or dig trenches in his land, for the improvement of his estate,2 though he knows and intends that this will do harm to A. Clearly B is not liable where his intent to harm A is only with a view to promoting his own (B's) interests. That is a very common case of competition between rivals in business.8 B has a legal right to promote his own welfare, if he use no wrongful means, though he intends to drive his rival to the wall. His motive being lawful, his legal right, speak ing by logic, is not lost by his intent. Such is the common law; but one should not fail to notice that this reasoning leads to a justification of monopoly, for competition which drives the rest of the world out of the field becomes monopoly. Social forces are arraying each other on the one side or the

other of this point; with what result cannot yet be seen.1 The second question, whether intent to harm where the motive is bad will destroy one's defense of legal right, has been found more difficult. Some courts hold that the answer should be in the affirmative — that the law should go no further than to protect a man when his motive is just, and not where, though in the exercise of a legal right, he in tends to do harm to another and does it.2 This view does not rest on logic for its validity. But the English courts, and most of our own, hold that it makes no difference that the motive as well as the intent is bad — enough that what was done was done in the exercise of a legal right. In other words, and in common language, malice (in the worst sense) will not overturn (full) legal right.* Such is the view resulting from logic. Which of the two conflicting rules is correct? It may be urged that the question is one of morals in the sense of ethics. If that be true, it is plain that B is liable — his legal right is overturned by his bad motive. Is the moral or ethical view the one followed in law? Undoubtedly the moral and the legal view agree in most cases; but that is because the moral conforms to the legal view as the domi nating purpose of society, rather than that the legal is made to conform to the moral view as an object of the law. The law does not profess to enforce morals as such. The

1 Of course, the absence of legal right in the defendant's conduct makes a different sort of case, as in South Wales Miners' Fed. v. Glamorgan Coal Co., 1905, A. C. 239, 252. 1 If he does not tap streams, above or below ground, flowing down in defined channels to A.

8 Plant v. Woods, 176 Mass. 492; May v. Wood( 172 Mass, ii; Rice v. Albee, 164 Mass. 88; Frazier v. Brown, 12 Ohio St. 294; Payne v. Western R. Co. 81 Tenn. 507; Paine v. Callender, 134 N. Y. 385, 390; Boyson v. Thorn, 98 Calif. 578; Quinnv. Leathern, 1901, A. C. 495; Allen v. Flood, 1898, A. C. i; Bradford v. Pickles, 1895, A. C. 587; Mogul Steamship Co. v. McGregor, 1892, A. C. 25; and other cases cited post, p. 138.

' Mogul Steamship Co. v. McGregor, 1892, A. C. 25-

1 Hence the law must meantime be unstable. Ante, p. 66. J Sweet v. Cutts, 50 N. H. 439; Bassett v. Salis bury Manuf. Co. 43 N. H. 569; Graham v. St. Charles R. Co. 27 L. R. A. 416 (Louisiana, modern Roman law).