8 HARVARD LAW REVIEW. without more, do not seem to be the ground. Both those elements were present to an equal degree in the Mogul Steamship Com- pany's case. It is true the jury found malice. But looking at the evidence, the instructions of the judge, and the judgments, evi- dently they did not mean that the ultimate motive of the defend- ants was not to benefit themselves. The defendants meant to benefit themselves by making the plaintiff submit, just as, in the other case, the defendants meant to benefit themselves by driving the plaintiff away. It might be said that the defendants were free not to contract, but that they had no right to advise or persuade the contractors who would have dealt with the plaintiff not to do so, and that, by communicating the union's willingness to deal with the contractors, if they would not deal with the plaintiff, the defendants were using such persuasion. But if this refinement is not a roundabout denial of the freedom not to contract, since a man hardly is free in his abstaining unless he can state the terms or conditions upon which he intends to abstain, at all events the same mode of reasoning could be used in the cases where the defendant escapes. The ground of decision really comes down to a proposition of policy of rather a delicate nature concerning the merit of the particular benefit to themselves intended by the defendants, and suggests a doubt whether judges with different economic sympathies might not decide such a case differently when brought face to face with the issue. Another illustration may be drawn from other cases upon boy- cotts. Acts which would be privileged if done by one person for a certain purpose may be held unlawful if done for the same pur- pose in combination.^ It is easy to see what trouble may be found in distinguishing between the combination of great powers in a single capitalist, not to speak of a corporation, and the other form of combination.^ It is a question of degree at what point the combination becomes large enough to be wrong, unless the knot is cut by saying that any combination however puny is so. Behind all is the question whether the courts are not flying in 1 See State v. Donaldson, 32 N.J.L. 151 ; State v. Glidden, 55 Conn. 46; Crumpz/, Commonwealth, 84 Va. 927 ; Lucke v. Clothing Cutters' & Trimmers' Assembly No. 7, 507, K. of L., 26 Atl. R. 505; Jackson v. Stanfield, 35 N. E. R. 345 (Indiana, 1894) ; Mogul Steamship Company f. McGregor, 23 Q. B. D. 598, 616; 1892, App. Cas. 25, 45. The cases are not quite unanimous, Bohn Manufacturing Co. v. Hollis, 55 N. W. R. 1 1 19 (Minnesota, 1893). 2 23 Q. B. D. 617.
