injury. Strikes were placed in this class. Boycotts and other combinations whose immediate intent was said to be that of injury were condemned in spite of the fact that their ultimate purpose or motive was to benefit labor, while strikes were pronounced legal.

Judge Gould of the Supreme Court, District of Columbia, thus refers to this distinction in the Buck's Stove case (1907):

Defendants claim the motive of wishing to benefit their condition affords such legal justification; but this motive is too remote compared with their immediate motive, which is to show that punishment and disaster necessarily follow a defiance of their claims. As quoted with approval by the Supreme Court of Pennsylvania, in Purvis vs. Brotherhood: "True, the defendants contend and testify that their purpose was to benefit their own members. This, doubtless, in a sense, is true, but the benefits sought were the remote purpose, which was to be secured through the more immediate purpose of coercing the plaintiffs into complying with their demands, or otherwise injuring them in their business, and the court cannot, in this proceeding, look beyond the immediate purpose to the remote results." Such is the doctrine laid down in Eddy on Combinations, and quoted with approval in the case of Erdman vs. Mitchell, 56 Atl. 327, as follows: "The benefit of the members of the combination is so remote, as compared to the direct and immediate injury inflicted upon the non-union workmen (in this case non-union mill owners) that the law does not look beyond the immediate loss and damage to the innocent parties to the remote benefit that might result to the union.1

An Illinois Court follows the same line of reasoning:

The law allows laborers to combine for the purpose of obtaining lawful benefits to themselves, but it gives no sanction to combinations either of employers or employed which have for their immediate purpose the injury of another.2

The same argument was suggested in State vs. Glidden and in numerous other cases. In making this distinction between the immediate and the ultimate object, some have named the immediate object the "intent" and the remote, the "motive." Mr. Jeremiah Smith thus declares:

Intent is used to denote the immediate object aimed at by the doer of the act, the immediate result desired by the actor. Motive is used, not to signify the object of the result immediately aimed at, but the cause for entertaining that desire, the feeling that makes the actor desire to attain that result. . . . The defendant frequently intends immediate harm to the plaintiff, but generally as a means of attaining the end of benefiting himself. In 99 labor cases out of 100, the defendant's motive (or, in other words, his ultimate intent) is to promote his own advantage. A man may

1 Buck's Stove, etc., vs. A. F. of L., 1907.

2 Barnes vs. Typographical Union, Ill., 1908, 83 N.E. 940, 945.

kill a king in order to benefit a people. The intention is to kill the king, the motive, to benefit. A defendant denies intent to harm plaintiff when he really means only to deny a bad motive for the intent. Defendant means that he did not do harm as an end in itself, but merely as a means to some further end legitimately desired.1

THE BOYCOTT AND THE DOCTRINE OF MALICE

Later many of the courts contended that no combination employing lawful means could be considered illegal, unless it contained the element of malice, or unless it was formed without justifiable cause. After an examination of the facts of the case, the judges generally conclude that malice could be found in connection with the use of the boycott, or that there was no legal justification for its employment. The essential elements of malice in most instances are not clearly set forth. In fact the judges are in hopeless disagreement as to what constitutes malice. Some argue that there must be a sole intent to injure; others that there must be no pecuniary advantage to the boycotters. Some are of the opinion that malice is shown if the benefit derived is at the expense of the boycotted, while intent to wrong without justifiable cause is the essential factor with others. Still another group argue that no legal malice is possible without an unlawful act. Following are some of the explanations:

If the persuasion be used for the indirect purpose of injuring the plaintiff or of benefiting the defendant at the expense of the plaintiff, it is a malicious act.2 (Bowen vs. Hall, an English case), quoted with approval by Barnes vs. Typog. Union (Ill., 1908).

"Practically it is better to remember the old definition that malice in its legal sense means an unlawful act, done intentionally without just cause or excuse.'

When we speak in this connection of an act done with a malicious motive it does not necessarily imply that the defendants were actuated in their proceedings by spite or malice against the complainant, Mr. Barr, in the sense that their motive was to injure him personally, but that they desired to injure him in his business in order to force him not to do what he had a perfect right to do.1

It is said that in each case (where malice is an element) the basis of the action is the doing of an act which the law already regards as illegal, but that the doer of the act is protected from its usual consequence in the event that he was actuated by an honest desire to perform a public or private duty. Allen vs. Flood (English, 1898).

1 Harvard Law Review, Vol. 20, pp. 451, 453.

283 N.E. 940, 944.

Foster vs. Retail Clerk's Association, N.Y., 78 N.Y. Supp. 865, 866, 1902, and Joyce vs. Gt. No. R'way, Minn., 1907. Italics are the author's.

Barr us. Essex, N.J., 1894, 30 Atl. 881, 886. Italics are the author's.

Boycotts, time without number, have been condemned on the ground that in their operation that vague, indefinable something known as malice was a prominent feature. Definitions that really define, however, are, for the most part, absent.

Most recently, judges in a number of states, concluding that the word "malice" introduced too uncertain a factor on which to base their decision, approved "justifiable cause" as the true criterion. What constitutes justifiable cause? This expression is used by some judges as indicative of the lack of maliciousness. Others, however, take a broader view. Generally it resolves itself into the question as to whether the possible gain to the promoter will reasonably compensate for the possible injury inflicted.

"In many cases," asserts Judge Hammond, "the lawfulness of an act which causes damage to another may depend upon whether an act is for justifiable cause; and this justification may be found sometimes in the circumstances under which it is done, irrespective of the motive, sometimes in the motive alone, and sometimes in the circumstances and motive combined."

Judge Hammond decided in this case, which involved the right to threaten a strike should certain workers refuse to join the union, that justifiable cause did not exist, and that the necessity that the plaintiff join the union was not so great, nor was "the relation to the rights of the defendants as compared with the rights of the plaintiff to be free from molestation such as to bring the acts of the defendants under the shelter of the principle of trade competition." Mr. E. W. Huffcut clearly explains the position of compensating advantage held by some:

There is presumptively a privilege to employ any lawful means in social or industrial relations . . . and the general and common privilege to employ these can be overcome only by showing that they are employed for an unjustifiable end, that is, an end which intentionally inflicts a damage upon a particular individual without a corresponding and compensating advantage to the one who inflicts it, or to those whom he represents. The question of justification resolves itself into this do the desire and expectancy of accomplishing this particular end warrant the interference with the contracts or business of one who stands in the way of the accomplishment? If that end be only the gratification of feeling, whether of ill will or good will, it is not of such substantial character which justifies inflicting pecuniary loss upon another. To gratify a feeling of malice toward the plaintiff will hardly be thought a justification for inducing third parties not to deal with him. To gratify a feeling of sympathy or good will toward X will hardly justify inducing third persons not to deal with the plaintiff unless there be some special relation between X and the defendant which warrants the defendant in acting for X. Even the remote advantage the defendant might derive as one of a large class, from the success of X in the competitive struggle would not be sufficient.1

with the plaintiff,

1 Harvard Law Review, Vol. 18, p. 439.

The elements which are essential to justify injury are clearly stated by Mr. Jeremiah Smith: 1

1. There must be a conflict of interest between plaintiff and defendant as to the subject matter in regard to which the damage is done, or at least there must be a legitimate interest of defendant to be directly served as to that subject matter.

2. The damaging act must be reasonably calculated to advance substantially the interests of the defendants.

3. The damage resulting to the plaintiff or to the general public (including the employer) must not be excessive in proportion to the benefit to the defendant. In other words, there must be a reasonable proportion between the benefit to the defendant and the damage to the plaintiff or to the public.

4. Even where the propositions one, two and three are made out, the justification must be confined to those cases where defendant uses only his own conduct as a lever, and therewith operates directly upon the possible employer or customer of the plaintiff. Defendant can never justify his right to work or not to work (or any other right) as a temporal inducement to influence an outsider or fourth person, to exert pressure upon the possible employer or customer of the plaintiff. A number of the decisions in the Massachusetts cases are based on this doctrine.

"The crucial question is whether there is justifiable cause for the act," runs the decision in Martell vs. White (Mass., 1904). "If the injury be inflicted without justifiable cause or excuse, then it is actionable."

Justice Holmes contended in Vegelahn vs. Guntner (Mass., 1896) that, "unless defendant prove some ground of excuse or justification,' a combination to injure the business of another would be illegal. That such justification is a sufficient legal excuse is the belief expressed in the Parkinson case (Cal., 1908).

While the consideration of justifiable cause is a great advance over the early reasonings in boycott cases, some jurists have advanced still further, and have expressly based their decisions on what they consider to be the social advantage. Justice Holmes, for instance, contends that "the true grounds of decisions are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes.' The part which public policy should play in the determination of legal questions is stated by Judge Andrews:

It is a truism that there are many acts directly injuring the property of another, yet which do not give rise to a cause of action. The phrase, damnum absque injuria, was invented to meet such cases. A may make

1 Ibid. Vol. 20, p. 361.

such erections upon his land as he chooses, notwithstanding the consequent injury to his neighbor. B may by fierce and continuous competition ruin a business rival. C may advise his friend to patronize one physician rather than another. Of course all these matters have their limits. If A goes too far he may create a nuisance. If B's competition is too strenuous, he may be guilty of fraud. If C says too much, he may become liable for slander. In the last analysis this freedom to commit injury and the bounds imposed upon it are regulated by what has been thought to be public policy. The injury itself is never good, but to suffer it may entail less injury than to attempt to check it by legal means.1

BOYCOTTS AND ILLEGAL MEANS

Still other courts prefer to look for the element of illegality in the means employed by the boycotters. If, to effect their purpose of injuring others, the combination used coercion, intimidation, force, violence, misrepresentation or fraud, or induced others to break their contracts, it is looked upon as illegal. Many a judicial controversy has been fought over the question as to what really constitutes coercive measures, threats, and other illegal means. Some judges have contended that any threat, direct or indirect, of loss of business such party to cease business relations with another, is coercive and intimidating in its nature and therefore illegal, if it forces a man against his will to grant the conditions demanded. Others have averred that the same reasoning which is applied to ordinary business dealings should also obtain in the discussion of labor combinations; and that, in the competitive struggle of the business world, parties are daily compelled to grant financial concessions through threats of which it is impossible for the law to take cognizance.

To declare a boycott illegal because a threat is made to boycott another if he continues to trade with the boycotted firm is, furthermore, vicious reasoning in a circle. Some judges, therefore, argue that unless the means used are such as will be considered illegal if used by one individual, such as the application of physical violence, the use of fraud, the inducing of another to break his contract, the combination should be permitted.

If we analyze the attitude of the judges as to what constitutes coercive measures, we will find that, generally speaking, proof of physical violence is not necessary.

The clear weight of authority undoubtedly is that a man may be intimidated into doing or refraining from doing by fear of loss of business, property or reputation, as well as by dread of loss of life, or injury to health or limb, and that the extent of this fear need not be abject, but only such as to overcome his judgment, or induce him to do

1 Foster vs. Retail Clerks' etc., N.Y., 1902, 78 N.Y. Supp. 860, 864. Italics are the author's.