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it may clear from a neutral harbour on a confessed voyage to a belligerent port without any infraction of neutrality having been committed."

Mr. Hall admits "that an international usage prohibiting the construction and outfit of vessels of war, in the strict sense of the term, is in course of growth; but that, although it is adopted by the most important maritime powers, it is not yet old enough or quite wide enough to have become compulsory on those nations which have not yet signified their voluntary adherence to it; but in the mean time a ship of war may be built and armed to the order of a belligerent and delivered to him outside neutral territory ready to receive a fighting crew, or it may be delivered to him within such territory, and may issue as belligerent property if it is neither commissioned nor so manned as to be able to commit immediate hostilities."

Now, if the "ground principles" of neutrality really authorized anything of the kind, the only observation we should make would be that the sooner the ground was shifted on which those principles rested, the better it would be. The papers contained in the "Report of the Neutrality Laws Commission" of the year 1868 provide us with a few facts which form a sufficiently ludicrous commentary on Mr. Hall's "ground principles."

(To be continued.)

F. W. PAYN.

THE

VII. WHAT IS MALICE?

HE essence of all wrong-doing lies in a wrongful intention. This is so, in a perfect degree, in the religious law by which we expect to be judged, not for our mere words and acts, but for the intentions with which we have spoken or acted, whether well or ill. It is so, moreover, though in a far

less perfect degree, in the popular or moral law, the "law of positive morality" or public opinion, wherein each man is judged by his neighbours upon the basis, no doubt, of appearances and probabilities, but yet with more or less of an attempt to gauge the intentions by which his actions are prompted, and to treat him with honour, commiseration, or odium, accordingly. And it is so, finally, in the field of positive law, or the law of the courts; indeed, so far essential is the element of wrongful intention to the commission of a legal wrong that the excellence of any political system can be well estimated by the greater or less pains which it takes, within the range of reasonable possibility, to ascertain the mens rea of its criminals before punishing them, and to regard with jealousy the imposition upon its citizens of "absolute duties," or duties enforced independently of advertence to the legal sanction.

The element of intention being thus in the ordinary case necessary to the commission of every legal wrong, it is important to carefully distinguish, in the administration of law, the element of intention from that of motive.

Although it is above stated that the Divine or religious law alone completely and exclusively regards the intentions of mankind in judging our actions, it is above all things necessary to observe that in the Divine law, intention and motive are so nearly allied to each other as to be almost identical. Let not this proposition be seized upon as an attempt to justify the much-debated maxim that "the end justifies the means." It is here intended only to assert this proposition, that in the Divine law an act committed with a right motive is necessarily (and as by a synonymous assertion) committed with a right intention, and vice versa, and likewise as regards a wrong motive and a wrong intention respectively. And the reason is not hard to find, being, in fact, this: that motive is an element adjudged solely by the standard of the religious law, for if the motive of a man's act be adjudged

a bad motive by a court of law, it is that the motive is "morally" bad, or (to speak more precisely) bad according to the religious law; but intention is an element which may be and is adjudged variously by the various systems, and if an intention be found bad in a court of law, it is that the intention is illegal by the rules of positive law. And, whereas all human laws are accessory to the Divine law, either such as by revelation it is known to be, or such as it is by the legislator apprehended to be, a distinction thereupon arises between the quality of the intention, adjudged by human law, and that of the motive, adjudged by reference to the religious law. But, whereas the Divine law itself is accessory to and considers no other system whatever, but is supreme over all and complete in itself, the motive and the intention are (in the eye of that law) adjudged by the same rule; and, since both are mental and volitive operations with regard to the same contemplated act or forbearance, the two elements merge, and motive becomes indistinguishable from intention.

For example: first, if a man offend against the law of England by stealing food, he thinking himself to be religiously justified because he steals it for his child, it will be said that his intention is bad, namely, the stealing with knowledge of its being a legal offence, but that the motive is good. Here, intention relates to the civil law, motive to the religious. The dishonest intention is punished by the Courts, but surely the good motive will not be punished by God? And there is a distinction between intention and motive.

But, secondly, supposing a man steals food for his child, let us judge him exclusively by what we may suppose to be the Divine law. It may be said that his motive was good, namely, to sustain his child: then it follows that his intention also was good, to please God. And there is no distinction here between motive and intention. But it may be objected that he knew himself to be offending against God's law in stealing, and therefore his intention must have been evil, but that his

motive was a natural pity for his child, and was good. To this it is answered that every motive which prompts a man to knowingly break the law of God is necessarily evil, though it arise from natural pity, paternal affection, or any other sentiment or emotion, however excellent in itself (vide Bentham, Morals and Legislation, ch. x. § 2: "There is no such thing as any sort of motive that is in itself a bad one"). In so far as he knew himself to be breaking the law of God (or would have known it but for his wicked carelessness, in which case there is an imperfect intention) his intention was evil, and also his motive was evil. In so far as he supposed himself justified in God's eyes, his intention was good and also his motive was good. In either case there is in the religious law no distinction between motive and intention.

Thus is drawn the distinction of intention and motive according to the law of England, that intention relates exclusively to that law, and is, therefore, commonly regarded in the administration and enforcement of legal rights and duties; but motive relates to an exterior system, the law of God, and is, therefore, generally disregarded, and, indeed, as being motive, invariably disregarded.

For it must be understood that the principles above expressed, concerning the relation between intention and motive, being, in fact, abstract and necessary principles, or, as Montesquieu would have expressed it, principles “qui dérivent de la nature des choses," admit of no exceptions; and, although it will be found that in various cases our law lifts its arm to punish (as it at first sight appears) an evil motive, yet the true ground upon which this takes place is, that the law of England has expressly or tacitly incorporated into its own system certain of the injunctions or prohibitions of the religious law, and by virtue of this incorporation what would otherwise have amounted only to an evil motive becomes united to and merged in an illegal intention, which incurs the sanction of the positive law.

The two cases in which the distinction between motive and intention can arise are, first, where there is a bad intention, to break the law of England, and a good motive, to observe the law of God; and, secondly, where there is a good intention, namely, to keep within the bounds of our law, and a bad motive, to offend against the law of God. The first case has already been illustrated, and the rule is very plain; for, where, by reason of bad or defective legislation or any other political misfortune, the positive law differs from the religious by way of contradiction, the good motive is of course no excuse for a breach of the law, at least if the latter be duly administered. The second distinction, however, arises, not only in cases of direct conflict between the two systems, but also and more commonly where there is merely an inequality in extent, the positive law not going so far as the religious; and its chief application is to the case of malice, which we here propose to consider in its relation to the law of civil injuries.

The time was, and very recently too, when malice was regarded as being in the background of many a doubtful injury, and when, if a plaintiff were uncertain of his right to redress, this vague and speculative element in the defendant's conduct, whether it had actually existed or not, could at a pinch be reckoned on as a reserve force of considerable cogency for obtaining a verdict; it having even been laid down by authority, in general terms, that "an act otherwise lawful in itself is illegal if done with the malicious intention of injuring a neighbour." As Lord Herschell said, in Allen v. Flood: "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 are malicious ;" and it is matter for satisfaction that by the above decision the law has at last been effectually reduced to the bounds of clearness and reason.

In the first place, it will probably simplify matters to

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