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classify and examine the various judicial definitions of malice, These are reducible to three categories :
I. Malice defined as an intention.
The well-known definition by Bayley, J., in Bromage v. Prosser, declares that “malice in common acceptation means ill-will against a person ; but in its legal sense it means a wrongful act done intentionally without just cause excuse.'
In Mogul S.S. Company v. McGregor, Gow & Company, Bowen, L. J., defined a malicious wrong as “intentionally to do that which is calculated in the ordinary course of events to damage, and which does in fact damage another, in that other person's property or trade ... without just cause or excuse ;” and observed that the word "maliciously means and implies an intention to do an act which is wrongful, to the detriment of another."
In Temperton v. Russell, Kennedy, J., explains the adverb maliciously, as “ with an intention, and for the purpose of doing an injury.”
II. As a means or method of acting.
In the same case, Temperton v. Russell, as was pointed out by the late Lord Herschell, in Allen v. Flood, “Lord Esher included within his definition of malicious acts, persuasion used ‘for the purpose of benefiting the defendant at the expense of the plaintiff.' Wills, J., thinks this 'going a great deal too far;' and that whether the act complained of was malicious depends upon whether the defendant has, in pursuing his own interests, ‘done so by such means and with such a disregard of his neighbour as no honest and fairminded man ought to resort to.' Here it will be seen that malice is not made dependent on motive. The assumed motive is a legitimate one, the pursuit of one's own interests. The malice depends on the means used, and the disregard of one's neighbour; and the test of its existence is, whether these are such as no honest and fair-minded man ought to
resort to, There is room here for infinite differences of opinion."
III. As a motive other than, or a class of motives including, that of ill-will.
In Bowen v. Hall, Brett, L.J., speaking of the case, then under consideration, of persuading another to break his contract, said : “If the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act.”
In Flood v. Jackson, Kennedy, J., said that the word maliciously, as applied to that case, meant: “from the indirect motive of doing a mischief to the plaintiffs in their lawful business."
So with relation to the law of privilege, Lindley, L.J., in Stuart v. Bell, said: “Malice, in fact, is not confined to personal spite or ill-will, but includes every unjustifiable intention to inflict injury on the person defamed, or every wrong feeling in a man's mind.”
And again, in the same connection, Lord Campbell, C.J., in Dickson v. Earl of Wilton : "By that term is meant, not only spite, for any indirect motive other than a sense of duty is what the law calls malice.”
In the criminal law, the same confusion reigns. “Nothing" (says Austin in his Twelfth Lecture) “is more frequent in jurisprudence than the confusion of motive with intention ; and of this the law of England affords a flagrant instance when it lays down that murder must be committed of malice aforethought. . . . Malice is properly the name of a motive, namely, that of malevolence or ill-will; but it is not by any means necessary in the law of England that the act should have been committed from ill-will . . . it is only necessary that the murder should be intentional. There is one case of peculiar absurdity, that of murders said to be committed out of malice or ill-will to all mankind. For example, if a
workman throws rubbish from the top of a building without giving warning to the passers-by, and if he consequently kills one of them ... he is said to have acted from malice or ill-will towards all mankind; the real ground for his punishment being that he has acted with gross and mischievous negligence. . . . He has committed the offence, not from a peculiar motive, but from the want of a certain motive, and his state of mind requires to be distinguished from intention, as intention and negligence both require to be distinguished from motives."
On the other hand, an example of the correct use of the word malicious in criminal law is found in the fifty-second section of the Malicious Injuries to Property Act, 1861, where a statutory offence is described in the following terms : "wilfully or maliciously committing any damage, injury, or spoil to or upon any real or personal property. for which no punishment is in the Act before provided.” Here the distinction is clearly drawn (see Roper v. Knott, overruling Hall v. Richardson) between a wilful intention and a malicious motive. It should be remarked, by the way, that the Lord Chief Justice, in Roper v. Knott, wherever he uses the expression “intention to injure," evidently meant thereby to signify "motive of injuring,” with which his Lordship appears to have considered the former expression synonymous. The distinction and its results were clearly laid down, though the words used were perhaps rather unfortunate. It is plain that an intention to injure, taking that word in the proper sense, is essential to make the act wilful, and thus bring it within the words of the section ; whereas, according to the distinction laid down by his Lordship, the motive of injuring, or in other words, an “animus” against the owner,
, is not necessary to make it wilful, though it is necessary to make it malicious.
From this review of some occasions upon which our judges and legislators have attempted to assign to the conception of
malice a secure and final locus quietus in the law, it will be seen-and the conclusion may be confirmed by many a decision or judicial pronouncement—that at least three or four very different significations have been attributed to “that unhappy expression” (as Lord Macnaghten calls it) in the province of private rights; and quite as many, if not more, of equal divergency, in the criminal law.
If the law is to be rendered capable of being readily understood and scientifically administered—no unreasonable requirements for a nation of intelligent citizens and illustrious judges--there must be some attempt to make its language at least expressive and precise; and to use an important “ term of art ” in six or eight different senses, none of which is the right one, cannot do much to allay the popular outcry against an incomprehensible jurisprudence.
On the strength of the judgments in Allen v. Flood, and particularly that of the late Lord Herschell, it is submitted that malice, according to the law of England, may now be shortly defined, in the words used by Austin, as "the motive of ill-will." No doubt it will still continue to be applied to other conceptions with which it has no more to do than has Black Rod with fiddle-sticks. The old “special meanings,” meaningless as they are, will probably continue in use until they are wiped out by a code, or swept away (together with the rest of the law) by a socialistic government. Nevertheless, in its true signification, and in that which may now be taken as the accepted signification, in all cases save in certain well-defined exceptional applications, the word malice means nothing more nor less than this: The motive of ill-will, which being an evil motive according to the law of God, as recognized by, and in some few cases incorporated into the law of England, involves in those cases the evil intention of breaking our law, which evil intention incurs the legal sanction, in criminal cases, of punishment; in civil cases, of re-instatement or compensation.
Now, when does this motive per se and of its own strength afford a good cause of action ? Our law, recognizing as it does, and indeed must, that malice is in all cases an essentially evil motive according to the Divine law, and professing to hold as a maxim of justice that “Christianity is part of the law of England," yet does not see fit to fulfil the logical conclusion of these propositions by invariably or even generally treating a malicious act as an illegal, because an un-Christian act; and it becomes of some interest to notice the few cases in which it has, by way of exception, assumed this jurisdiction over men's interior motives and feelings, inquiring into the very spirit, so to speak, of their behaviour, as well as into their overt and more corrigible manifestations.
“The thought of man,” it is quaintly said in the Year Books, “is not triable, for the devil himself knows not the thought of man”—a doctrine which may be applied à fortiori to such passages of the intellect and will, as do many times slip the detection of one's own conscience, so that a man may often suppose his own conduct justifiable and even laudable, when it is in truth prompted by motives of jealousy, anger, envy, or spite.
If, then, we see the law assuming in a certain few cases so delicate and dangerous a jurisdiction, we may expect to find, on inquiry, that the occasions which call forth this interference are of such a nature as, if unchecked, to gravely imperil the peace of society or the freedom of commerce. And so it will be found in fact.
The most important case for consideration is that of malice in libel. Here we find the matter complicated by one of the “special meanings” of the word already referred to: “malice" in the law of libel signifying “any corrupt or wrong motive” (Stuart v. Bell). But since the motive alleged is in almost all cases that of “spite or ill-will,” it will be convenient, as well as in accordance with the scope of these remarks, to take the word in that sense, ignoring the other motives which may