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occasionally disentitle a defendant to set up the defence of privilege. But this is not the only distinction to be considered, because there is further a well settled and wide distinction between “malice" exercised in using a "privileged occasion,” and “malice” considered apart from privilege. In the latter case, where there is no privileged occasion, it is said that “malice is presumed."
The “presumed” fictions and "implied” nonentities of English law are notoriously manifold, and here we have, perhaps, an extreme example of the absurdity, whereby a state of mind is "presumed ” or fictitiously supposed to exist, with no other object in its imaginary life than to earn and enjoy an old-age pension of maledictory ridicule. For, the truth which it is desired to express by this saying, that “malice is presumed,” is simply that there is no need to adduce proof, or even to enter into the consideration, of the defendant's motives, since, whatever they may have been, the defamatory statement, if its terms amount to a libel, is a legal wrong. Not only is it unnecessary for a plaintiff (apart from the question of privilege) to prove or even allege malicious motives, but, further, not even the most convincing proof, being brought by the defendant, to show the absence of malice on his part, will be of the slightest use as a defence, unless coupled with that of privileged occasion. In other words, the Court will not listen either to proof or to disproof of malice, or consider the subject of malice in any way or for any purpose, unless and until the defence of privilege is raised, when, for the first time, the defendant's motives come in question (subject to the presumption in his favour) and become directly material to the issue.
Then, and then only, malicious motive becomes an integral part of the legal injury of libel, and is the decisive factor which turns that into a wrong which would, without it, be mere damnum absque injuria.
It is true, however, that Lord Watson, in the case of
Allen v. Flood, denies this quality to the element of malice in cases of privilege, and it will be interesting to respectfully examine his lordship's dicta upon the subject. “There is,” says his lordship, “a class of cases which have sometimes been referred to as evidencing that a bad motive may be an element in the composition of civil wrong ; but in these cases the wrong must have its root in an act which the law generally regards as illegal, but excuses its perpetration in certain exceptional circumstances, from considerations of public policy. These are well known as cases of privilege, in which the protection which the law gives to an individual who is within the scope of these considerations consists in this, that he may with immunity commit an act which is a legal wrong, and but for his privilege would afford a good cause of action against him ; all that is required in order to raise the privilege and entitle him to protection being that he shall act honestly in the discharge of some duty which the law recognizes, and shall not be prompted by a desire to injure the person who is affected by his act. Accordingly in a suit brought by that person, it is necessary for him to prove an intent to injure in order to destroy the privilege of the defendant. But none of these cases tends to establish that an act which does not amount to a legal wrong, and therefore needs no protection, can have privilege attached to it, and still less that an act in itself lawful is converted into a legal wrong if it was done from a bad motive."
Now, the fallacy of this passage (if one may presume to say so) lies in the statement that "the protection which the law gives to an individual who is within the scope of these considerations consists in this, that he may with immunity commit an act which is a legal wrong." It is an utter impossibility, apparent on the face of the assertion, that any legal system should let a man "with immunity commit an act which is a legal wrong;” for the very word
immunity is incompatible with and excludes the idea of wrong, according to the principle of Hobbes' celebrated axiom, “no law can be unjust,” or “justum est quod jussum
For if there be immunity, the act thereupon and thereby is transformed from a wrong into a legal act, being freed from the legal sanction.
To say that the law gives a man "immunity” in the "perpetration of a legal wrong," is the same contradiction as to say that the law "makes black white "-an accusation popularly brought against the lawyers, but not against the law itself.
What happens, in truth, is that the privileged occasion transforms the legal wrong of libel into a just and rightful act, but that the supervening element of malice, if proved by the plaintiff, reconverts (to borrow an expression of Equity) the act into a wrong, and brings the legal sanction again into operation.
It is quite true as a general rule that “the law of England does not take into account motive as constituting an element of civil wrong," and all persons concerned in the progress of law are highly indebted to those who decided the cases of Allen v. Flood and Mayor of Bradford v. Pickles, for placing the matter upon this footing. But the law of "qualified privilege” must surely be regarded as affording one of those few plain exceptions which serve merely to prove the rule by way of illuminating it with the additional light of a clear contrast.
D. AIKENHEAD STROUD.
VIII.-CURRENT NOTES ON INTERNATIONAL
[The Editor will be glad to receive notes (which may be published signed or unsigned at writer's option) for insertion in this section on subjects of current interest in International Law].
Foreign Judgments. Private international law has hitherto neglected the questions of international jurisdiction and execution of foreign judgments. Putting aside the utopian idea of an universal agreement on these subjects, the practical aim should be the adoption by two countries of a common legislation, which should determine by one procedure, or one process, disputes between the subjects of those countries. This might result, in time, in a condition of uniformity being established between several countries ; but we must not think, as some now wish to do, of trying to effect conventions to secure such uniformity between many countries at one time, for the diversity of legislations and the difficulty of reconciling and harmonizing their different rules prevent this. The work must be done between two nations only at a time, and later, when legislations become uniform on these points, a state of general uniformity may result. I am of opinion that any conventions which may be made on these points with nations whose legislation and administration of justice are entitled to respect, should contain rules dealing with judicial jurisdiction, and also with the exequatur. To make special treaties only about the mutual execution of judgments creates great difficulties of interpretation. I need only mention, as an instance of this, the treaty between France and Italy. This would give a remedy for the present state of things which prevents many persons from entering into contracts with strangers, and discourages others, who, in order to obtain their rights, find themselves compelled to bring repeated
expensive actions in different countries. A strong current of opinion is making itself felt in various States, and particularly in France, in favour of making such conventions with States, whose laws, jurisprudence, morals, and judicial integrity allow of it.
Only one single treaty in the whole world deals with this double question of the international jurisdiction of tribunals, and the reciprocal execution of judgments between two countries, and that is the convention between France and Switzerland of 1869. It is an imperfect work, the result of the labours of distinguished diplomatists, who sought to apply in it rules of international law which are still uncertain. The tribunals and jurists of both countries in interpreting this treaty have, however, got rid of many of its imperfections and errors, and at the present time it would be an easy matter to recast it.
I have had the honour of inducing the Ministers of Foreign Affairs and Justice in France to entertain the project of a treaty between France and Belgium on this question ; and the similarities in the law and jurisprudence of the two countries, and some concessions on the part of France, have enabled me to propose the adoption of the same law for both countries with regard to inheritance, bankruptcy, and companies, for determining civil and commercial disputes between Belgians and Frenchmen. In Belgium, the chambers of commerce, legal congresses, and leading members of the Bench and the Bar have expressed their adhesion to this project: the French Government, through its Ambassador, has sounded the Belgian Government, which has favourably received it; and there is reason to hope that no serious obstacle will prevent an agreement being arrived at between the French and Belgian delegates, who are soon to meet and discuss the matter.