ing so subtle an element into consideration have frequently been recognized, and in our view there is absolutely no necessity for it. In this view, in determining whether a right of action arises from an act producing injury, attention should be directed, not at all to the intent with which the act was done, but to the existing relation, if any, of the party doing the injury, to the conditions out of which arose the act. In other words, the test of liability is whether the act was the natural incident or outgrowth of some existing lawful relation. Perhaps the most striking and suggestive for the natural and inevitable consequences of one's acts, see Barr v. Essex Trades Council, above (p. 117), a case of the boycott of a newspaper. 1 Although, so far as I know, this view has never before been formulated, the court, in the leading case of Allen v. Flood, L. R. App. Cas. (1898), 1, seem to have come very near an apprehension of it, as not confined in its application to any particular relation, such as that of trade competitor, but extending to lawful relations generally. Thus, Lord Herschell (p. 140) explains the decision in Mogul S. S. Co. v. McGregor, below, as not resting on the narrow basis that "the law sanctions acts which are done in furtherance of trade competition," "but rather on this: that the acts by which the competition was pursued were all lawful acts; that they were acts not in themselves wrongful, but a mere exercise of the right to contract with whom, and when, and under what circumstances and upon what conditions they pleased." And some of the judges who delivered the numerous opinions in Mogul S. S. Co. v. McGregor seem to us to have been not far from such clear apprehension. Thus, Bowen, J., when (23 L. R. Q. B. D. 598, 613) he says that an intentional act producing damage is actionable if done without just cause or excuse. This is very near saying that it is actionable, if not the incident or outgrowth of some existing lawful relation. Still nearer to the truth does he come when he says (p. 618), "If it was bona fide done in the use of a man's own property, in the exercise of a man's own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable. But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain or the lawful enjoyment of one's own rights." So, in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 117; s. c., 30 Atl. Rep. 881 (1894), it is said that "the test is, has the injury been inflicted intentionally and without legal excuse?" To similar effect, Macauley v. Tierney, 19 R. I. 255; s. C., 33 Atl. Rep. 1 (1895). Compare what is said in Walker v. Cronin, 107 illustration of such a relation is that of the owner of tangible property, especially real estate. It is the generally-accepted doctrine that the owner of land is not liable for an injury resulting from an act done upon his own land, merely because the act was done with intent to do the injury.1 In such case the act is merely an incident or outgrowth of the existing lawful relation of owner. It is a mistake, however, to suppose that the doctrine is confined in its application to the relation of owner of land. Thus, the existence of the re Mass. 555,563 (1871), as to "acting in the lawful exercise of some distinct right which furnished the defense of a justifiable cause." See, generally, Cooley on Torts (2d ed.), p. 93. Recent suggestive discussions, more or less closely bearing on this subject, will be found in articles by Judge O. W. Holmes, on "Privilege, Malice and Intent," in 8 Harv. Law Rev. 1(1894); by J. H. Wigmore, on "The Tripartite Division of Torts," Id. 200 (1894); on “A General Analysis of Tort Relations,” Id. 377 (1895); and on "The Boycott and Kindred Practices as Ground for Damages," 21 Am. Law Rev. 509 (1887). The last-mentioned article is rich in suggestion, but the learned author, throughout his discussion of "interference with relations," seems to us to fall into the common error of treating the subject from the standpoint of the relation of the party injured, instead of from the standpoint of the party doing the injury. See also article by E. Freund, on "Malice and Unlawful Interference," in 11 Harv. Law Rev. 449, 463 (1898). Compare, as to doctrine of privilege in libel, Hollenbeck v. Ristine, Iowa, ——; s. C., 75 N. W. Rep. 355 (1898). 1 Phelps v. Nowlen, 72 N. Y. 39 (1878); Mayor, etc. of Bradford v. Pickles, L. R. App. Cas. (1895), 587. See, however, Chesley v. King, 74 Me. 164 (1882). That, for instance, creating noises on one's land is not a natural incident or outgrowth of the relation of owner of land, see Allen v. Flood, L. R. App. Cas. (1898), 1, 101, commenting on Keeble v. Hickeringill, 11 East, 574, note (1706), a case where firing a gun on one's own land frightened wild fowl from a neighbor's decoy. It is further said (p. 133) that Keeble v. Hickeringill may be " "explained by the circumstance that, if the defendant merely fired on his own land, in the ordinary use of it, his neighbor could make no complaint, whilst if he was not firing for any legitimate purpose connected with the ordinary use of land, he might be held to commit a nuisance." What is this but saying that the act of firing, though done upon the land, was not the natural incident or outgrowth of the existing lawful relation as owner of such land? 2 This may have been the view of the court in Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889), citing dissenting opinion in Capital & Coun lation of party to a lawful contract enables such a party to enforce or terminate the contract according to its provisions, without reference to the presence of intent to injure another party to the contract or a third person.1 In this view the same doctrine should apply to the existing relation of competitor in trade, of employer, and of employee. In the line of what we have already stated, the failure to recognize and apply this doctrine seems to be largely responsible for the confusion and conflict in the decisions relating to the legality of trade and labor combinations. It will be our endeavor in this part of this treatise to show its application to such cases. Having thus seen that an act, though done with intent to injure, is lawful if the natural incident or outgrowth of some lawful relation, we may define, as malicious acts, acts done with. malice, or with intent to do injury, in the absence of any existing lawful relation of which the act is a natural incident or outgrowth.2 ties Bank v. Henty, 7 L. R. App. Cas. 741, 766 (1882). 1 Thus, in Raycroft v. Tayntor, 68 Vt. 219; s. c., 35 Atl. Rep. 53 (1896), it was held that no action would lie for procuring a discharge from employment by threatening the employer that the defendant would terminate a contract that he had the right to terminate at any time. To the same rule seems referable Beechley v. Mulville, 102 Iowa, 602; s. c., 70 N. W. Rep. 107 (1897), where an action by a mem ber of a combination among fire insurance companies and agents to fix rates was held not maintainable as for a conspiracy to destroy the plaintiff's business as an insurance agent, merely because of the combined action of the defendants to enforce the rules and penalties against him, as by imposing fines and revoking agencies. 2 It seems a sufficient justification of the view we have advanced that we are thereby enabled to avoid the deplorable confusion into which courts have fallen in the attempt to define malice while ignoring the existing relation of the party doing the act. Thus, we need not wonder to find Lord Macnaghten in Allen v. Flood, L. R. App. Cas. (1898), 1, 144, saying, with reference to the word "maliciously:" "Sometimes I rather doubt whether I quite understand that unhappy expression myself." In Flood v. Jackson, 2 L. R. Q. B. (1895), 21, the court had an admirable opportunity to decide the case on the issue whether the act complained of was the natural incident or outgrowth of the relation of the defendant as a member of or representing a large body of employees with common interests. (See § 12.) But the court 3. The doctrine of criminal conspiracy. The comparatively recent introduction of the doctrine that the fact of combination creates a civil liability where otherwise it would not exist, makes it desirable to obtain a clear idea of the scope of the doctrine of criminal conspiracy, from which the above-mentioned doctrine seems to have been derived. A consideration of the authorities on this subject may well lead us to the conclusion that "no branch of the law of England is more uncertain and ill-defined than the law of criminal conspiracy." A survey of the historical conditions will 66 entirely ignore the existence of this relation, using (through Lord Esher) the following somewhat remarkable language: "We have been invited to define malice. One cannot do so any more than one can define fraud, and I certainly shall not attempt it. Every one knows what is meant by a man acting maliciously. The only recognized tribunal that can decide whether an act is or is not malicious is a jury." It would seem then that the statement that every one knows what is meant by a man acting maliciously" should be qualified as follows: "Every one except Lord Esher knows," etc. In the same case, however, Lopes, J., cautiously stated "as being applicable to the present case, that when a person wilfully does an act to the injury of another without any law ful cause, that is evidence of malice." Instead of "without any lawful cause," it would have been better to say "in the absence of any existing lawful relation of which the act is a natural outgrowth or relation." But on reversal of this decision in Allen v. Flood, L. R. App. Cas. (1898), 1 (see p. 4, above), this opinion of Lord Esher was deservedly condemned, it being said by Lord Herschell (p. 118): "I can imagine no greater danger to the community than that a jury should be at liberty to impose the penalty of paying damages for acts which are otherwise lawful, because they choose, without any legal definition of the term, to say that they were malicious. No one would know what his rights were." Compare statement of Bowen, J., in Mogul S. S. Co. v. McGregor, 23 L. R. Q. B. D. 598, 613 (1889), that "such intentional action taken without just cause or excuse is what the law calls a malicious wrong; " and see p. 6, above. See also Bromage v. Prosser, 4 Barnewall & C. 247, 255 (1825); Allen v. Flood, above (pp. 94, 171). 1 K. E. Digby, in article in 6 Law Quart. Rev. 128 (1890), on "The Law of Criminal Conspiracy in England and Ireland." See reply by J. G. Butcher, Id. 247 (1890), and further article by Mr. Digby, Id. 363 (1890). So it was said in People v. Fisher, 14 Wend. 9 (1835), that “the offense of conspiracy seems to have been left in greater uncertainty by the common law than most other offenses." As to statutes modifying common-law doctrine, see Appendix. assist us to understand the origin of the doctrine of criminal, as distinguished from civil, liability for conspiracy. When conspiracies to overthrow governments were more frequent and dangerous than at present, the governmental authorities found it desirable to "nip in the bud" such plots, and punish the conspirators before the conspiracy could be carried into execution. The desire to do this under form of law, if it did not actually produce, seems at least to have made it easier to establish, the doctrine that "a combination to commit any crime was punishable, although the crime had not been executed,"1 the doctrine being extended to include cases where the acts proposed were not criminal. A commonly accepted definition of a conspiracy is that "it is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to ac This doctrine appears in English jurisprudence as early as the fourteenth century, though it does not seem to have been firmly established until the seventeenth. In that period its convenience in obtaining convictions for treason was fully demonstrated. Wright on Criminal Conspiracies and Agree ments, pp. 6, 7. These applications of the doctrine were vividly before the minds of those who conducted the Revolutionary war and founded our government. "No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." U. S. Const., art. 3, $3. 2 This extension was recognized in Reg. v. Parnell, 14 Cox C. C. 508 (1881), and seems to have been so generally in this country. State v. Stewart, 59 Vt. 273; s. C., 9 Atl. Rep. 559 (1887); Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 123 (1842); Carew v. Rutherford, 106 Mass. 1, 10 1870). Compare, however, Wright on Criminal Conspiracies and Agreements, p. 48, where, as the result of an elaborate discussion, it is concluded that "there is a great preponderance of authority in favor of the proposition that, as a rule, an agreement or combination is not criminal unless it be for acts or omissions (whether as 'ends' or as 'means') which would be criminal apart from agreement." See Arthur v. Oakes, 24 U. S. App. 239, 263; s. C., 63 Fed. Rep. 310, 325 (7th Cir., 1894), as to Wisconsin statutes said to embody "the principle that a combination or conspiracy of two or more persons to injure the rights of others is illegal." But these statutes create a criminal liability, and the reference to them by the court only adds to the evidence that the court, as we shall show elsewhere (see § 4), failed to keep in mind the distinction between criminal and civil liability for conspiracy. |