law is a question of fact, and styling it a conclusion of law not required to be proved, and not permitted to be denied. If malice in law is a conclusion of law, then is malice in fact a conclusion of law and if this be so, it is still true that they are not distinguishable the one from the other. Whether malice in fact is here employed in the sense of want of legal excuse or in the sense of bad intent is immaterial on this point. The non-existence of legal excuse in the one case, and the existence of bad intent in the other can be proved only by inference. No argument can make it more clear than the mere statement, that the non-existence of a legal excuse does not admit of direct proof, and can be proved only by inference. As to the proof of malice in fact or of a bad intent, we have already considered how intent may be

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1 "The malicious intent of the publication is not a question of fact, but a conclusion of law. It is the intent which the law implies, and which the plaintiff is, therefore, not required to prove, nor the defendant permitted to deny." (Duer, J., Fry v. Bennett, 1 Code Rep. N. S. 243; 5 Sandf. 54.) The only case in which malice may be proved is where privilege is pleaded. (Root v. Lowndes, 6 Hill, 520; Washburn v. Cook, 3 Denio, 112; Howard v. Sexton, 4 N. Y. 157.) "Malice, so far as the law requires it to sustain the action, is implied from the publication of that which is untrue-the law presuming it to exist in such a case. Therefore, express malice is not required to sustain the action." (Littlejohn v. Greeley, 13 Abb. Pr. R. 55) "It is said that malice is involved in the issue. * * The answer to this suggestion is, that in the action of slander, except in cases of privileged communications, express malice forms no part of the issue. Legal malice only is affirmed or denied, and this results from proof of the transaction the law pronounces wrongful, and therefore malicious. 518." (Gardiner, J., Howard v. Sexton, 4 N. Y. 160.) a libel or for words, though evidence of malice may be ages, it never is considered as essential, nor is there any instance of a verdict for the defendant on the ground of a want of malice." (Mansfield, Ch. J., Hargrave v. De Breton, 4 Burr. 2425, repeated by Bayley, J., in Bromage v. Prosser, 4 B. & Cr. 247; 6 Dowl. & R. 296.) Such an instance is Wilson v. Stephenson, 2 Price, 282, where the jury found that the speaking of the words by the defendant was not maliciously, on which a verdict was recorded for the defendant, and the court refused to disturb it. And see Smith v. Ashley, 11 Met. 367. Others say malice must be proved. "The jury have no more right to find malice in the defendant, without sufficient evidence than they have to find any other fact in the plaintiff's favor without proof." (Woodruff, J., Liddle v. Hodges, 2 Bosw. 544.) And see Dolloway v. Turrill, 26 Wend. 396; Cooke on Defamation, ch. iv.

* which 2 Greenl. Ev. §§ 410, 421, "In an ordinary action for given to increase the dam

proved (§ 83); and from the nature of the subject it will conclusively appear that, inasmuch as, at the time when this division of malice took place parties to a transaction were not allowed to testify, there could at that time be none other than indirect evidence of bad intent or malice. At that time the existence of bad intent or malice could be proved in no other manner than by inferring it from the acts or declarations of the actor, or by the like means as the proof of so-called malice in law.

§ 88. Pursuing the subject, and upon reference to the text-books and reports to ascertain whether intent and malice are elements of a wrong, we find some authors and judges laying down the rule that intent, meaning bad intent, is the essential ingredient of every wrong,' and this is so universally conceded that all collections of legal

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Every wrong supposes intention or negligence on the part of the wrong-doer. (2 Austin's Lect. Juris. 2.) Intention, negligence, heedlessness, or rashness, is of the essence of a wrong, is a necessary condition precedent to the existence of guilt. (Id. 144.) Guilt imports that the party has broken a duty (Id. 147, 149); it denotes the intention, and connotes the act, forbearance or omission, which was the effect of his intention (Id. 147); and at p. 165: Unlawful intention or unlawful inadvertence is of the essence of injury. And on examining the grounds of exemption from liability, we find the party is, or is presumed to be, clear of intention or inadvertence; and (p. 168) the ultimate ground of exemption for ignorance or error of fact is, the absence of unlawful intention or unlawful inadvertence. At p. 179: An infant or a person insane is exempt from liability, not because he is an infant or insane, but because it is inferred from his infancy or insanity that the wrong was not the consequence of unlawful intention or inadvertence; and (p. 185) the reason assigned by Blackstone and other writers is hardly worth powder and shot. He tells us that a wrong is the effect of a wicked will. And (says) infants and madmen are exempted, because the act goes not with their will, or is not imputable to a wicked will. * He cannot mean to affirm that an infant or madman has not as much

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will as the adult or the sane. [It must be observed that Austin makes a distinction between will and motive. By will, if we interpret him aright, he intends only the mere act of volition.]

Intent is the essence of crime. (Krom v. Schoonmaker, 3 Barb. 647.) The criminality of the act depends altogether upon the intent with which it was done. (Genet v. Mitchell, 7 Johns. 120; and see 2 Starkie on Ev. tit. Intention; 5 Am. Quart. Rev. 79.) "It is a principle of our law that to constitute an offense there must be a guilty mind." (Reg. v. Sleep, Leigh & Cave, 44, Cockburn, C. J.) "A man cannot be said to be guilty of a delict unless to some extent his mind goes with the act." (Buckmaster v. Reynolds, 13 C. B. N. S. 62, Erle, C. J.)

maxims include this: "Actus non facit reum, nisi mens sit rea;" which is translated: "An act does not make guilty, unless the mind be guilty"—that is, unless the intention be criminal; others assert that intent is immaterial in civil actions, except in the civil actions for slander and libel; others that intent is immaterial in slander and libel, or immaterial except under certain circumstances; and others, that the essential element of a slan

1 See Burrill's Law Dict. tit. Actus, where he adds: The intent and the act must both concur to constitute the crime. (Kenyon, Ch. J. 7 T. R. 514; Broom's Max. 144.) This maxim is exclusively applicable to criminal law, and to civil proceedings for slander and libel; in [query, other] civil actions, the intent is immaterial if the act done be injurious to another. (Id. 155, 161.) The maxim, "Affectio tua nomen imponit operi tuo" [your disposition or intention gives name or character to your work or act], embodies the same principle. (Bract. fol. 101 b.) See Broom's Maxims, tit. Actus non facit, &c., where he says: With respect to libel and slander the rule is * * * * where an occasion exists which, if fairly acted upon, furnishes a legal protection to the party who makes the communication complained of, the actual intention of the party affords a boundary of legal liability. See also Burrill's Law Dict. tit. Voluntas, citing Voluntas et propositum distinguunt maleficia—Will and purpose characterize crimes. Crimen non contrahitur, nisi voluntas nocendi intercedat-Crime is not contracted unless the intention of doing harm be present. Tolle voluntatem et erit omnis actus indifferens. Take away will and every act becomes indifferent.

We cannot pass the quotation of a so-called law maxim without entering our protest against their reception as legal axioms. We believe that not a single law maxim can be pointed out which is not obnoxious to objection. The old law maxims must be put aside or forgotten, or remembered only as things of the past and dead, even as we have put aside and forgotten maxims in science, supplying their places with maxims drawn from a larger experience and more philosophical analysis. "Perhaps there is a period in every system of law previous to which the formation of maxims will be productive of bad effects, as leading to the establishment of principles which it is not permitted to controvert, but which more enlightened views would repudiate." (Fortesque de Laudibus, &c. ch. viii, note to edition by Amos. See Dodderidge's English Lawyer; Doctor and Student, Dialogue I, ch. viii, ix; Bacon's Preface to his Maxims.) The benefit which science has received from the use of maxims is of a questionable nature, and the adoption of these is of a questionable nature whenever the ideas are confused. (Locke on the Understanding, Bk. IV, ch. vii.) In Bonomi v. Backhouse (27 Law Jour. Q. B. N. S. 388), Erle, J., says: "The maxim, sic utere tuo ut alienum non lædas, is mere verbiage. A party may damage the property of another where the law permits, and he may not where the law prohibits; so that the maxim can never be applied until the law is ascertained, and when it is, the maxim is superfluous." And in Jenkins v. Wheeler (4 Robertson, 575), the court said that the maxim, "freight is the mother of wages," is not universally true.

2 The secret intention of the publisher is immaterial. (Hankinson v. Bilby, 16 M. & W. 442.) "It is an error to suppose that motive, except where the words are

der or a libel is malice or a malicious intent, the mind

The motive of the defendThe motive may be a good

privileged, is in any way essential to a cause of action." ant is wholly immaterial as respects the right of action. or a bad one. (Daly, F. J., Viele v. Gray, 10 Abb. Pr. R. 6, 7; 18 How. Pr. R. 550.) In an action brought by A. against B. for slandering the title of the former to certain slaves by him exposed to public sale, a verdict was found for him; B. brought his bill praying for relief, and an injunction against the verdict, and it was held that as the loss in the sale of the slaves was caused by B., even though he was believed to have designed no injury, he was bound to make reparation, and his bill was dismissed. (Ross v. Pines, Wythe, 71.) There is no instance of a verdict for the defendant on the ground of want of malice. (Mansfield, Ch. J. Hargrave v. Le Breton, 4 Burr. 2425; repeated by Bayley, J., Bromage v. Prosser, 4 B. & Cr. 247.) If I give a man slanderous words, whereby I damnify him in his name and credit, it is not material whether I use them upon sudden choler and provocation, or of set malice, but in an action upon the case I shall render damages alike. (Bacon's Maxims of the Law, Regula, VII.)

The intent with which an act is done is by no means the test of the liability of a party to an action of trespass. (Guille v. Swan, 19 Johns. 381; Percival v. Hickey, 18 Id. 257; Tremain v. Cohoes Co. 2 N. Y. 164; Ruckman v. Cowell, 1 N. Y. 507; Safford v. Wyckoff, I Hill, II; note to § 91, post.) Bona fides will not protect a magistrate who does an illegal act. (Prickett v. Greatrex, I New Mag. Cas. 543; 7 Law Times, 139.) It is immaterial with what motive a man does a legal act. (Humphrey v. Douglass, 11 Vt. 22); and so of an unlawful act. (Amick v. O'Hara, 6 Blackf. 258.) Intention held to be immaterial. (Bullock v. Babcock, 3 Wend. 391; Baker v. Bailey, 16 Barb. 60.) Intent immaterial if the words are a libel. (People v. Freer, 1 Caines, 485.) In a private action for libel the motives are out of the question. (Root v. King, 7 Cow. 633.) If the words are not actionable per se and have not occasioned any special damage, no amount of malice in the publisher will make them actionable. (Kelly v. Partington, 3 Nev. & M. 116; 5 B. & Adol. 645 and see 2 Nev. & M. 460; 4 B. & Adol. 700.) "Bad motives in doing an act which violates no legal right of another, cannot make that act a ground of action." (Pickard v. Collins, 23 Barb. 459.) If the fact be justified, the motive, intention, and manner are immaterial. (2 Burr. 807.) "Many cases may be cited to show that the question is not, from what motive did an act proceed? but, was the act justified by any right of the doer? * * * The motive, except so far as it is evidence of the end in view, is, judicially speaking, unimportant. (Lindley's Introd. to Juris. App. Xxx.)

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Where an act in itself indifferent, if done with a particular intent becomes criminal, there the intent must be proved and found; but when the act is in itself unlawful (i. e., prima facie and unexplained), the proof of justification or excuse lies on the defendant, and in failure thereof the law implies a criminal intent; in the latter case the intention is immaterial, and therefore not a question of fact in issue, for the crime consists in publishing a libel; "a criminal intention in the writer is no part of the definition of the crime of libel at the common law." (Per Lord Mansfield, in Woodfall's Case.) The words quoted are from the opinion of the twelve English judges, delivered in the House of Lords, upon questions put to them on the subject libel. (Journals of the House of Lords, 1792, Appendix 27; and 22 Howell's State

must be in fault; and some expressly, and some by implication, assert that this fault in the mind, this bad intent

Trials, 300; The People v. Crosswell, 3 Johns. Cas. 364.) Except in the cases of privileged communications, express malice forms no part of the issue. (Howard v. Sexton, 4 N. Y. 157, and see p. 132, note 1, ante.) "In which case [privileged communication] express malice must be shown, while in other cases express malice forms no part of the issue. Thorn v. Moser, I Denio, 488; The State v. Burnham, 9 N. Hamp. 34; Howard v. Sexton, 4 N. Y. 157." (W. F. Allen, J., Bush v. Prosser, 11 N. Y. 355: see Id. 358, and the next following note.)

1 "To constitute that injury [slander] malice must be proved, not mere general ill-will, but malice, in the special case set forth in the pleadings, to be inferred from it and the attending circumstances." (Gardiner, J., Howard v. Sexton, 4 N. Y. 161; quoted and approved by Rosekrans, J., Fry v. Bennett, 28 N. Y. 328; and by W. F. Allen, J., Bush v. Prosser, 11 N. Y. 357.) "Malice is essential to every action for libel." (Selden, J., Lewis v. Chapman, 16 N. Y. 372.) "In all cases malice is essential to the action. Not imputed malice merely, but actual malice, malice established by proof." (Selden, J., Bush v. Prosser, 11 N. Y. 358.) To maintain the action, there must be: (1) "malice in the defendant; (2) injury to the plaintiff ; (3) that the words should be untrue." (Ellenborough, Ch. J., Maitland v. Goldney, 2 East, 426.) The malice of the publication, or the intent to defame the reputation of another, is the essence of the offense of libel. (Commonwealth v. Clapp, 4 Mass. 163; Commonwealth v. Snelling, 15 Pick. 337.) In order to render the publisher amenable to the law, the publication must be maliciously made, but malice will be presumed if the matter be libelous. (Bouvier's Law Dict. voce Publisher.) “The criminality of the charge in the indictment consisted in a malicious and seditious intention. There can be no crime without a wicked mind." (Kent, J., The People v. Crosswell, 3 Johns. Cas. 364); and “as a libel is a defamatory publication made with a malicious intent." (Id. 377.) The injury consists in "falsely and maliciously” charging another with, &c. (Kent's Com. part IV, sect. 24, p. 706, of vol. I, 11th ed.; and Id p. 617.) "The essential ground of action for defamation consists of the malicious intention, and when the mind is not in fault, no prosecution can be maintained;" and the story recited from Fox's Martyrology, in Brook v. Montague, Cro. Jac. 91, is referred to. "The mind must be in fault and show a malicious intent to defame." (Kenyon, J., Rex v. Abingdon, 1 Esp. 226; Reg. v. Wallace, 3 Irish C. L. Rep. N. S. 38.) "By the law of England, malice is an essential ingredient in every action on the case for slander." (Borthwick on Libel, 194.) And in a note (Id.) attributed to Starkie, it is said: Every definition of the subject-matter of an action for slander, to be found in the books of reports or elementary writers, includes malice as an essential ingredient. Malice is the gist of the action for slander. (McKee v. Ingalls, 4 Scam. 30; White v. Nicholls, 3 How. U. S. Rep. 266.) There must be a mischievous intention. (George on Libel, 162.) The guilt [gist] of and essential ground of action for defamation consists in the malicious intention, and when the mind is not in fault, no prosecution can be maintained. (2 Kent's Com. 26; W. F. Allen, J., Bush v. Prosser, II N. Y. 355.) In the trial of the Seven Bishops, Justices Holloway and Powell both say, to make a libel it must be malicious. "The main question is, quo animo the defendant published the article complained of. The plaintiff is bound to show that the defendant was actu

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