by the acts of a combination. But there is no inherent impossibility as to the accomplishment of such damage by a single powerful individual. There have been, and are, instances of single persons having power to accomplish, and sometimes actually accomplishing, damage such as is usually caused by such combinations. One of the questions now looming up is, not whether a combination incurs greater liability than an individual, but whether a combination enjoys greater immunity than an individual (a point to be considered later under the head of justification).

"Half the controversies in the world," said Cardinal Newman, "are verbal ones, and, could they be brought to a plain issue, they would be brought to a prompt termination. Parties engaged in them would then perceive, either that in substance they agreed together, or that their difference was one of first principles. When men understand what each other mean, they see, for the most part, that controversy is either superfluous or hopeless."1

We will not affirm that all difficult questions in labor litigation would be instantly solved if words were used with exactness and in only one signification; but it is safe to say that the difficulties of solution would thus be materially diminished. Certainly it is impossible to have any clear discussion of the present subject, unless we either discard certain ambiguous expressions altogether or distinctly indicate the meaning intended to be affixed to them.2

The confusion engendered by the use of the word "malice" has been so often remarked upon by the highest authorities that it cannot now be necessary to enlarge upon it, nor to discuss the difference between the popular sense and the legal sense, between "express malice" and "implied malice," between "malice in fact" and "malice in law." It is not the least of the merits of the Indian Penal Code that the use of this word is entirely avoided. In his recent opinion in South Wales Miners' Federation v.

1 Newman, Oxford University Sermons, 1890 ed., 200, 201.

2 The word "strike" is used to describe various kinds of conduct quite distinct from each other. The same is true of the word "boycott."

As to the various meanings of "strike," cf. Report of Royal Commission on Trade Disputes, etc., p. 16, art. 66 (3); Dissenting Report of Sir W. T. Lewis, pp. 120, 121; Hammond, J., in Plant v. Woods, 176 Mass. 492, 496, 497.

As to the various meanings of "boycott," cf. Adams and Sumner, Labor Problems, 197, enumerating "four distinct varieties of boycott," and Mitchell, Organized Labor, 289, 290, as to the distinction between "a direct boycott" and "a secondary boycott."

Glamorgan Coal Co., Lord Lindley said: ". . . it conduces to clearness in discussing such cases as these to drop the word 'malice' altogether and to substitute for it the meaning which is really intended to be conveyed by it."1

The words "intent" and "motive" cannot be entirely banished from legal discussions; but the user should always indicate the sense in which he employs them, except where this is unmistakably inferable from the context.2 At present, "intent" and "motive" are often used interchangeably, as though they were exact equivalents of each other.

The word "intent" is used in at least three distinct senses; to express sometimes one and sometimes another of three things which are really distinct from each other.

1. Intent is used to denote the volition, the exercise of will power, requisite to constitute a muscular movement an act; i. e., to constitute the movement of a man's muscles the act of that man. If the motion of a

man's arm is due to spasmodic contraction of the muscles while he is undergoing an epileptic fit, then that motion of the arm is not his act. But a similar motion of the arm due to an exertion of his will power, due to a voluntary contraction of the muscles, is his act.

This signification of intent does not specially concern the present discussion.

2. Intent is used to denote the immediate object, or consequence, or effect, aimed at by the doer of an act; the immediate result desired by the actor.1

3. Intent is used, not to signify the object or result immediately aimed at, but to denote the reason for aiming at that object; not to indicate the

1 [1905] A. C. 239, 255. Cf. Prof. Ames, 18 HARV. L. REV. 422.

2 The word "intent" or 'intend," as used in the charge and special findings in Leathem v. Craig, received conflicting interpretations at the hands of the judges in banco. Ireland [1899] 2 Q. B. & Ex. D. 667, 744. Cf. O'Brien, C. J., pp. 724, 725, 726, 731; Lord Ashbourne, p. 752; Walker, L. J., p. 768; Palles, C. B., p. 713.

3 "Nothing is more frequent in jurisprudence than the confusion of motive with intention." I Austin, Jurisp., 3 ed., 355.

"During the arguments that have been addressed to your Lordships, I do not think that quite sufficient distinction was drawn between the intention and the motives of the defendants. Their intention clearly was that the workmen should break their contracts. Their motives, no doubt, were that by so doing wages should be raised.” Lord James of Hereford, in South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239, 252.

4 It will be noticed that intent is here used in Markby's sense of "desire," and not in Austin's sense of "expectation." Cf. Markby, Elements of Law, 3 ed., §§ 217, 220, 222, and 1 Austin, Jurisp., 3 ed., 433.

result immediately desired, but the cause for entertaining that desire, the feeling which makes the actor desire to attain that result.

To illustrate the distinction between 2 and 3, take the following

case:

A republican kills the king. He is actuated, not by ill will to the monarch, but by a patriotic desire to promote the welfare of the country. Being indicted for intentionally killing the king, he says that his intention was not to kill the king but to benefit the country.

Of course this defense would not avail. It confounds intent and motive (or, if we use the word "intent" in both cases, it confounds immediate intent with ulterior or ultimate intent). "But the nature of the consequences" immediately "intended, and the nature of the motive which gave birth to the intention, are objects which, though intimately connected, are perfectly distinguishable." 1 “... and the causes of intention are called motives." 2 "The intention is the aim of the act, of which the motive is the spring."3 Intention "is the result of deliberation upon motives, and is the object aimed at by the action caused or accompanied by the act of volition." It is illogical to "argue that a man did not entertain a given intention because he had a motive for entertaining it." 5

Take another case, where there is not a single act, but a series or succession of acts, all prompted by one and the same ultimate motive:

It is impossible to kill the king without first killing the sentinel at the palace door. A republican, in order to carry out his purpose of killing the king, kills the sentinel; and then, having thus gained admission, kills the king. He is friendly towards the sentinel and has no personal ill will towards the king. His reason for desiring the death of the king is his belief that the monarch's death will promote the welfare of the country. Being indicted for intentionally killing the sentinel, he says that his governing intention was not to kill the sentinel but to kill the king.

This defense, again, cannot be maintained. When he says that he did not desire the death of the sentinel, he means only that

1 Bentham, Principles of Morals and Legislation, c. IX, ¶ XIII.

2 Ibid., c. VIII, ¶ XIII, and c. XI, ¶ XXVIII.

8 I Austin, Jurisp., 3 Eng. ed., 165.

42 Stephen, Hist. of Crim. Law of Eng., 110.

6 Ibid., 111-112.

he did not desire that result for its own sake. But he certainly did desire it as a means to the end of attaining his ultimate object. "The ulterior intention of one wrongful act may be the commission of another";1 but that does not necessitate the conclusion that there was no immediate intent in doing the first act, that there was no immediate consequence aimed at in the doing of the first act. It cannot be maintained "that the presence of an ulterior intention takes away the primary immediate intention." 2

Compare also the following instances in labor litigation where intent and motive are confounded:

(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 to the plaintiff "for the sake of the harm as an end in itself," but "merely as a means to some further end legitimately desired.” 3

(b) Defendant justifies on the ground of self-interest. Plaintiff attempts to rebut by alleging bad motive, and seeks to sustain allegation by proof simply of intent to harm. In many of these cases the defendant's motive or ultimate intent is in itself a perfectly good one; namely, a desire to promote his own welfare or that of his union.*

It must now be apparent that the ideas described in 2 and 3, ante, p. 256, differ from each other; and that infinite confusion. must ensue if the same word or phrase is used to denote both.5

1 Salmond, Jurisp., 418. "A person may pursue an immediate end merely as a means to a more remote one, and that in turn as a means to one still further on; and thus any given act or omission may be regarded as directed to the attainment of a series of ends of different degrees of remoteness." Terry, Leading Principles of Anglo-American Law, § 192.

2 2 Stephen, Hist. of the Crim. Law of Eng., 112.

As to cases where either the immediate intent or the motive is "complex instead of simple," where the act is done with the intent of simultaneously bringing about two immediate results, or where the doer is actuated by two concurrent motives, see I Bishop, New Crim. Law, §§ 339, 340, and Salmond, Jurisp., 418, 419.

3 "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 injury to the remote results." Purvis v. Local, etc., 214 Pa. St. 348, 359.

Whether a really bad motive (such as personal ill will to the plaintiff) would destroy an otherwise sufficient justification, is a question to be considered later. The point to be noticed now is that in many labor disputes this question does not arise, inasmuch as the motive, or ultimate intent, is not bad. See Mr. Justice Holmes, 8 HARV. L. REV. 8; and Prof. Ames, 18 HARV. L. REV. 418, n. 3.

5 For an example of using "motive" to cover both ideas, reference may be made to the question recently suggested "concerning a soldier, who, after taking aim, fired

Different words or phrases must be used for each. What these words or phrases shall be is not a matter of supreme importance, although a general agreement of lawyers as to phraseology might save much time which would otherwise be devoted to explanation of the meaning of terms. For ourselves we propose to use the word "intent" to denote the ideas expressed in 2, and "motive " to denote the ideas expressed in 3. If one prefers, he may use "immediate intent" as to 2, and "ulterior intent" or "ultimate intent" as to 3; or new words or new combinations of words may be invented. But whatever expressions are employed, their meaning should be clearly stated, and their use should be consistent throughout the discussion.3

Taking the terms "intent" and "motive" in the significations we have given them, intent is frequently material upon the question of the actor's liability in tort, whereas the cases where motive is material are comparatively rare. Bad motive is not generally a requisite element in making out a prima facie case. Good motive does not, alone and of itself, constitute a justification for the intentional infliction of harm.

Recurring now to the direct consideration of the question stated at the beginning of this article, the first inquiry is as to the nature of the plaintiff's interest or right which he claims has been infringed.

In some quarters it almost seems to be assumed that an interest or right must be absolute, or else it cannot exist at all. If the right is not fully protected, it is treated as practically non-existent. E converso, if it is admitted to exist at all, then it is assumed that it must necessarily be fully protected. But the analogies of the

off his rifle in time of battle, whether his predominant motive was to help his country or hurt his enemy." Here we should say his intent was to hurt his enemy, his motive was to help his country.

1 See Mercier, Criminal Responsibility, 45.

2 Prof. Dicey uses the word "object" instead of "intent." In 18 L. Quar. Rev. 2, he says: "This distinction between motive and object may be called a fine one, but it is a real distinction and corresponds with the dictates of common sense." To this the editor, Sir Frederick Pollock, adds: "Moreover it is at least as old as Aristotle's Ethics." But see Chalmers-Hunt, Trade Unions, IV, V.

3 "Nobody is at liberty to censure men or communities of men for using words in any sense they please, or with as many meanings as they please, but the duty of the scientific enquirer is to distinguish the meanings of an important word from one another, to select the meaning appropriate to his own purposes, and consistently to employ the word during his investigations in this sense and no other." Maine, Hist. of Early Institutions, 7 ed., 374.