In The Mogul Steamship Company v. M’Gregor, [1892] A. C. 25, the trade of the defendants was the primary object, and the injury to the plaintiffs was the result of the means taken to advance that object. There, as in Allen v. Flood, [1898] A. C. 1, the injury to others was the thing intended, as the means of carrying out another object.
There is an observation which appears to me to gather up several of the fallacies which are scattered through the arguments in the judgments of the majority in Allen v. Flood, [1898] A. C. 1. The case is put by Lord Watson as if it were a question whether a person could be made liable for doing, from a malicious motive, what, without such motive he could do lawfully. In fact there are cases in law in which the malice makes the distinction of what is lawful or unlawful, as in malicious prosecution, or takes away the right that otherwise exists, as in the instance of privileged communication. But that is not the present case at all, as it was not that of Allen v. Flood, [1898] A. C. 1. The defendant, who maliciously instigated the thing, is not the person who possessed the power of dismissal. Therefore the supposed constitutional objection, that the law could not enter into a man’s mind, has no place. The same point meets the case of the butler and the cook that was put in the argument. The butler tells his master he will leave unless the cook is dismissed. Lord Herschell snatched at the admission of counsel, that the cook could bring an action, as being the logical conclusion from his argument. With great respect, it is neither logical nor the law. The servant is the master of his own actions. He can choose his own company, though even for that object he cannot use threats. But in this case it was another person that assumed to choose his company for him. Allen was not a boiler-maker, as Craig was not a butcher, who wished to leave. Each was a member of a trade organization, and had no duty or interest of his own to interfere. What relation could such a position assume but that of intimidation?
... a confusion of relations, in applying the proposition that a person cannot be made liable for maliciously exercising a right which he possesses. The action here is for maliciously causing another person to exercise a right which that other person possessed. In one case, the right may be said to absorb the malice, though there are exceptions to the rule in the common law. But how can it absorb another man’s malice?
What wrong can be conceived more cruel and grievous than wilfully depriving men of their employment? There must be a right, correlative to the wrong. What right can be more sacred than the right to live by a man’s labor? But then, it is said, the wrong and the right are subject to the legal power of another person. That is the case in many instances, in which the law nevertheless gives a remedy for wrong that requires the exercise of another person’s will. That is the case of a person who is defamed; the damage comes from those who hear. That is the case of malicious prosecution; the agency is that of the law. The servant who is enticed away from his master, leaves of his own will. The woman who left her husband, in Winsmore v. Greenbank, Willes, 577, did so with her own consent; the actress who broke her engagement, in Lumley v. Gye, 2 E. & B. 216, could have performed, if she liked. That is the case of tenants leaving their holdings on account of threats, which is put in 1 Rolle’s Abridgment, 108; Action sur Case, (N.) pl. 21.
Many other examples could be given where the law allows a remedy, though the wrongful act requires the concurrence of another person’s will. The rule is the same as to crimes. The law does not excuse instigation to crime because the other person need not commit the crime, or for the reason that it is impossible to separate the effect of the instigation and natural pravity of will, which was the ground erroneously assigned by Coleridge, J., for his opinion in Lumley v. Gye, 2 E. & B. 216. In fact the law makes no distinction between moral and physical agency, or the degrees of the influence, when the cause is attached to the consequence by the verdict of the jury.