which Quinn v. Leathem answers our Fourth Question in the affirmative need not be restated, but it may be pointed out that under this question the following cases have yet to be determined: If B., not in combination with others, threatens C. with business loss if he makes the contract which he expects to make with A., has A. an action against B., (1) Where A. and B. are competitors? (2) Where A. and B. are not competitors? (3) Where B. has combined with others, A. and B. being competitors? Again, in view of the fact that in Quinn v. Leathem there was no dispute between Leathem and his own employes, and that this fact was adverted to by more than one of the judges, it may yet be considered doubtful whether a combination of a number of a man's employes to strike unless he discharges a coemploye, by which combination the co-employe is discharged, gives rise to a legal cause of action in the discharged employe, against the members of the combination, the employer, not having been induced to commit a breach of contract?

It is not, however, the number of important and perfectly possible states of fact, the legal import of which has not been determined, which makes the subject of responsibility for the interference in the trade relations of others one of doubt and difficulty; it is rather the fact that in the solution of each case which has arisen there are several distinct tendencies, or methods by which this class of cases can be decided, no one of which has as yet become dominant. In Lord Esher, for instance, we have the tendency to ascertain the legality or illegality of the act of the defendant by the character of his intent. This tendency received a most decided check in Allen v. Flood, but the opinion of Lord Brampton in Quinn v. Leathem shows that the tendency is not finally eradicated. The opinion of Lord Bowen in the Mogul case, exhibits two other tendencies; one, that towards testing the legality of the defendant's act by ascertaining the nature of the act which he induced the third person to do, whether it was or was not itself a civil wrong to the plaintiff; the other, the tendency to ascertain the extent of the rights of the plaintiff as a trader, and then to ask whether the defendant trespassed on these rights. This

last attitude is usually modified by treating the rights of a trader, as a sort of quasi property right; that is, as a right which cannot be trespassed on, except with just cause and excuse, the just cause or excuse being found in the exercise by the defendant of similar rights. Lastly, we have the tendency to test the legality or illegality of the interference, by the method employed to induce the third person to break off his business relations with the plaintiff. This attitude is seen in Lord Herschell's opinion in Allen v. Flood, where he declares that Allen's threat, if he made a threat, cannot give rise to an action, because in striking, the Glengall Company's employes would not have done a civil wrong to the company. It is seen also in Lord Lindley's and Lord Chancellor Halsbury's opinions in Quinn v. Leathem, where they regard the coercion of the wills of the plaintiff's customers as a test of the wrongfulness of the defendants'

acts.

As stated, we cannot yet tell which tendency will prevail. Until one tendency does prevail, it will be impossible to foretell with any certainty what will be the decision in any case, in which the adoption of one principle or test of legality rather than another would lead to different results. It is the opinion of the writer that in time the test of legality will be the last one indicated, that is the character of the methods employed to induce. He reaches this conclusion principally because it appears to him to be the marked characteristic of the development of the law of torts, that it always shows a tendency to reach out towards an objective standard of right conduct, and that the only other test besides the last which meets this requirement,—the nature of the act persuaded,—fails to meet any form of coercion which stops short of threatened violence to person or property; and it will probably be generally admitted that the capacity which the modern man has for industrial organization of all kinds would seem to indicate, that persuasion by business pressure is a new form of coercion from which the law must protect all classes of society.

William Draper Lewis.

SOME OBSERVATIONS ON THE CASE OF

PRIVATE WADSWORTH.

In the February number of this magazine1 I tried to state my conclusions relative to the meaning of the phrase "martial law" as at present used; and as to the possibility of its existence in Pennsylvania during the recent strike of the anthracite coal miners. Briefly, those conclusions were these that the civil is a higher law than the military; that no exception to this proposition is allowed save in time and place of actual war, when, of necessity, there is no machinery for the enforcement of the civil law; that these propositions hold true of England, of the United States, and of the state of Pennsylvania; that, hence, as admittedly the situation in the coal regions did not amount to war, the civil law must take cognizance of all violence committed there, whether by civilian or soldier; and that, therefore, Private Wadsworth must answer for his act before a civil tribunal, according to the known law of the land.

Even though I be wrong in my conclusion, however, as to the non-existence of martial law, it seems that the parties concerned in the killing of the victim must stand civil trial, after the exigency has passed. This is conceded by those who argue most strongly for the existence of martial law.

Thus Birkheimer, who is a strenuous adherent of the theory that martial law may occur, says: "If it be asked what security exists against abuse of this summary military authority, the answer, as before pointed out, is in the amenability of those exercising it not only to military superiors, but also before the civil tribunals of the country when peace and order again resume their sway.' And again, "Yet the assertion that the power exercised under martial law is entirely arbitrary is liable to mislead. It cannot be meant by this that the authority there exercised by the military is despotic and irresponsible, nor even that responsibility is limited to accountability to military superiors alone. And 1 AMERICAN LAW REGISTER, O. S. Vol. 51, p. 63. 'Birkheimer, "Military Government and Martial Law," 300.

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herein lies the safety of the community." And finally : "The safeguards against martial law are not found in the denial of its protection, but in the amenability of the President to impeachment; of military officers to the civil and criminal laws and to military law; in the frequent change of public officers, the dependence of the army upon the pleasure of Congress, and the good sense of the troops."

Finlason, the exponent par excellence of the doctrines of martial law seems to say that civil or criminal proceedings may be brought against a soldier for (1) cases of utter illegality, through total want of jurisdiction or authority; (2) cases of acts done during martial law, but not really under and by virtue of it, that is, not really in pursuance of it, but under color of it, for private malice and revenge; and (3) cases of acts done without orders or authority at all. But he contends that no commander, officer or soldier "lawfully putting martial law in force under legal declaration of it, can be legally liable for orders issued or obeyed under and by virtue of military authority."5 For this proposition he cites Johnstone v. Sutton. This case, as a glance at the report will show, has nothing to do with martial law, but with the power of a civil court to revise the finding of a court-martial sitting to try a military offence.

Moreover, the distinction attempted in the paragraph above-quoted from Finlason does not seem valid. After the three-fold classification of cases wherein a civil court. may try a soldier, there seems very little left which the civil court cannot investigate. Again, the writer's assumption is rather startling when he begins to talk of "lawfully putting martial law in force," and a "legal declaration of it." One would suppose that the lawfulness of it was the subject under discussion, and if its legality is thus to be tacitly assumed there is nothing further to discuss.

It being settled, then, that the soldier's guilt or innocence must depend on the action of a criminal court, constituted and acting under the constitution and the rules of the com

Finlason, "A Treatise on Martial Law," 72, note (a).

'1 T. R. 528.

mon law, we may undertake the discussion of some of the considerations which must weigh with such court in reaching a just conclusion.

The result, so far as the criminality or innocence of the defendant's act goes, must depend, it seems, upon the answers to be given two questions: (1) Were the orders, under which he acted, lawful orders? If so, then the case is ended, and the defendant must be acquitted.. But if not, then: (2) Was the illegality of the orders patent to the defendant, or of such a nature that it should have been patent to one of his abilities and station, under the circumstances of the case? Let us proceed to a consideration of these two inquiries.

I. THE LEGALITY OF THE ORDERS.

If the conclusions reached in my former article are correct, then the military in the coal regions were a sort of posse comitatus,—with this added, that they were organized and officered and subordinated to a certain discipline. They had, as regards the suppression of riot, or the prevention of a breach of the peace, or of a felony, no higher privileges than the constabulary. They had the right to meet force with force, to arrest a felon and if he were escaping to shoot him to prevent his escape; they had the right, as has any peace officer to take life to prevent the commission of a felony. But in all these respects they were peace officers merely. If either officer or private overstepped the line of what was strictly necessary to these ends, he was guilty of a wrongful act. No middle ground is possible, either there was peace in the coal regions, in which case these men were peace officers and amenable to the rules and sanctions of the criminal code; or there was war in those regions, in which case the soldier is answerable to no tribunal save by the will of his commander, under the laws of army discipline.

If the civil law was paramount, does it seem that the governor of the state, who is charged with the execution of its behests, took the lawful and appropriate method to enforce it when he wrote this order for the guidance of the general commanding: "He ... will arrest all persons engag