VOL. XLII. APRIL 1. THE INTENT IN LIBEL. NO. 7. 1. Intent of the publication in libel-Its threefold distinction. 2. When a question for the jury in civil cases. 3. The maxim that every one intends the natural consequences of his act-Mens rea. 4. Distinction between intention and motive. 5. Motive and intention discussed. 6. "Malice" and "malicious" as applied to libel. 7. The term "maliciously": (Per Russell, C.J.). 8. Objections to the term "malicious." 9. The law as settled. 10. Legal relations of malice and privilege. 11. The rule of law and its exceptions. 12. Non-user of "malice" and "malicious" in libel sections of the Code. 13. General rule applicable to indictable offences. 14. Intent inferred from the nature of the publication. 15. What is meant by the charge of malice-The legal presumption and its effect. 16. The presumption against newspaper proprietors and how it may be met. 1. Intent of the publication in libel-Its threefold distinction. One of the principal distinctions between civil and criminal liability for libel consists in the intention of the publication. This intention, in reference to both kinds of liability, is said to be capable of a threehold distinction. The publisher may (1) be actuated by a malignant intention to effect the particular mischief to which the means which he uses tend; or, (2) his object may be benevolent and laudable; or, (3) he may be indifferent as to consequences, and act purely from some collateral motive. But mere intention in the abstract, and without reference to circumstances which supply a justification recognized by the law, cannot supply a test of exemption from criminal, any more than from civil, liability. A man must, in respect of criminal as well as remedial consequences, be presumed to contemplate and intend the natural consequences of his own act. If, therefore, the act be calculated to produce evil consequences, he must be taken to have intended them. 2. When a question for the jury in civil cases. In civil proceedings the question of intention should not be submitted to the jury, unless it appear that the publication was made on a justifiable occasion. And where it was left to the jury to say whether the defendant intended to inform the plaintiff, it was held that the direction was wrong, for the reason that if the tendency of the publication was injurious to the plaintiff, the defendant must be taken to have intended the consequences of his own act: Haire v. Wilson (1829) 9 B. & C. 643. 3. The maxim that every one intends the natural consequences of his act -Mens rea. This common maxim, that a man must be held to intend the natural consequences of his act, sometimes stated as if it were a positive rule of law, is not really a rule of law further or otherwise than as it is a rule of common sense. The only pos sible way of discovering a man's intention is by looking at what he actually did, and by considering what must have appeared to him at the time the natural consequences of his conduct: 2 Steph. Hist. C.L. 111. The wilful doing of any prohibited act, tending to public injury, is, in the absence of any lawful excuse, in itself criminal, legal malice being in all such cases a mere formal inference of law. It seems also to be clear in principle, that mere innocency of intention, so long as the act is voluntary and designed, in the absence of circumstances which amount to a legal excuse, cannot exempt the party even from criminal liability. As mens rea, or a guilty mind, is, with few exceptions, an essential element in constituting a breach of the criminal law, a statute, however comprehensive and unqualified it be in its language, is usually understood as silently requiring that this element should be imported into it, unless a contrary intention be expressed or implied (Maxwell, Interp. of Stat. 4th ed. 136). Although mens rea is essential to crime (Reg. v. Tolson (1889) 23 Q.B.D. 168; The Commonwealth v. Presly (1859) 14 Mass. (Gray) 56), it may exist without any intention to do the criminal act which was done. "Take the case of libel, published when the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong; he could not be entitled to be acquitted because there was no mens rea. Why? Because the act of publishing written defamation is wrong where there is no lawful cause. (Reg. v. Prince (1875) L.R. 2 C.C.R. 154, per Bramwell, B.). Mens rea may be excluded by ignorance of fact (Anonymous (1745-63) Foster's Crown Law, 265), although such ignorance does not excuse if it be careless and unreasonable (Reg. v. Jones (1874) 12 Cox 628); but mens rea is not excluded by ignorance of law (Rex v. Bailey (1799) R. & R. 1). Ignorance of the law excuses no man; not that all men know the law, but because it is an excuse every man will make, and no man can tell how to confute him. (Selden.) All that is meant by the rule is, that no one is to be permitted to set up to an indictment, for an act on its face. wrongful, the defence that he did not know that the act was wrongful: 4 Cr. L. Mag. 11. 4. Distinction between intention and motive. Intention and motive are often confounded, but they are clearly distinguishable. "Intent" and "intention" have been defined as a design, a resolve, or purpose (Abbot's Law Dict.); and it has been declared that the phrases "with an intent" and for a purpose" are almost absolutely identical in meaning: Robertson v. Liddell (1808) 9 East, 487; Commonwealth v. Raymond (1867) 97 Mass. 567. Mr. Justice Stephen describes intention as the result of deliberation upon motives. It is, he says, the object aimed at by the action caused or accompanied by the act of volition. Though this appears to be the accurate and proper meaning of the word, it is frequently used and understood as being synonymous with motive. It is very common to say that a man's intentions were good when it is meant that his motives were good, and to argue that his intention was not what it really was, because the motive which led him to act as he did was the prevailing feeling in his mind, at the time when he acted, rather than the desire to produce the particular result which his conduct was intended to produce. A puts a loaded pistol to B's temple and shoots B through the head deliberately, knowing that the pistol is loaded, and that the wound must certainly be mortal. It is obvious that, in every such case, the intention of A must be to kill B. On the other hand, the act in itself throws no light whatever on A's motives for killing B. They may have been infinitely various. They may have varied from day to day. They may have been mixed in all imaginable degrees. The motive may have been a desire for revenge, or a desire for plunder, or a wish on A's part to defend himself against an attack by B, or a desire to kill an enemy in battle, or to put a man already mortally wounded out of his agony. In all these cases the intention is the same, but the motives are different, and in all the intention may remain unchanged from first to last, whilst the motives may vary from moment to moment: 2 Steph. Hist. C.L. 110-11. 5. Motive and intention discussed. Motive, therefore, is a very different thing from intention. It has been defined as an inducement, or that which leads or tempts the mind to indulge the criminal act: People v. Bennett (1872) App. Cas. 49 N.Y., 137, 148. Thus, if A intending to rob B, assaults him in order to accomplish the robbery, and B resists with such force that A is compelled to slay him in order to effect his purpose, here A's intention is to kill B, but his motive in so doing is to enable him to commit the robbery. A has in fact two intents-one to rob and another to kill, but only one motive, and that is to rob B. It was often argued that a prisoner ought to be acquitted of wounding a policeman with intent to do him grievous bodily harm, because his intention was not to hurt the policeman, but only to escape from his pursuit; but, if the difference between motive and intention were properly understood, it would be seen that the wish to resist lawful apprehension was the motive, and the wounding of the policeman the intention. . . . It would be a mistake to suppose that, in order that any act may amount to a crime, the offender must intend to commit the crime to which his act amounts, but he must in all cases intend to do the act which constitutes the crime. There are cases in which a person may commit a murder without intending to commit a murder, but there is no case in which he can commit murder without intending to do the act which makes him a murderer. If a robber fire a pistol at the person robbed, intending only to wound him, and actually kills him, he is guilty of murder, though he had no intention to commit murder, but he cannot be guilty unless he intended to fire the pistol. (Ibid.) So, too, the concurrence of indifferent or good motives will not be a defence to an indictment for an intentional violation of the law. It is no defence to an indictment for larceny that the defendant intended to give the money to the poor; nor to an indictment for arson that the object was to remove a building that was a nuisance. Whatever a man's motives may have been, he is subject to indictment if he intended to commit an act made indictable by law, and then committed that act: 4 Cr. L. Mag. 7. 6. "Malice" and "malicious" as applied to libel. In reference to libel the intention of the defendant has been usually expressed by the use of the word "malicious." Libel is a malicious defamation of any person: 2 Bl. Com. by B. & H. 173; 1 Hawk. P.C. 193. There is little doubt that malice here originally meant a design to injure, which is still the meaning, in civil actions, of the statutory phrase "actual malice." But in the enormously increased opportunities for publication of modern times, it became obviously necessary that communications should sometimes be indictable, which were made bona fide, in the belief that it |