Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/25

40 though all such facts be present as last supposed, the superadded fact of malice will, in cases of so-called "conditional privilege," extinguish the privilege that otherwise would exist. It must be evident also, that whenever the privilege does exist, it is not special in the sense of arising from a special law, or of being conferred as a special favor on a particular individual. The same privilege would exist, by virtue of general rules, for any person whatever under similar circumstances. So, also, in the law of evidence, the privilege against self-crimination signifies the mere negation of a duty, to testify—a duty which rests upon a witness in relation to all ordinary matters; and, quite obviously, such privilege arises, if at all, only by virtue of general laws.

As already intimated, while both the conception and the term "privilege" find conspicuous exemplification under the law of libel and the law of evidence, they nevertheless have a much wider significance and utility as a matter of judicial usage. To make this clear, a few miscellaneous judicial precedents will now be noticed. In Dowman's Case, decided in the year 1583, and reported by Coke, the court applied the term to the subject of waste:

"And as to the objection which was made, that the said privilege to be without impeachment of waste cannot be without deed, etc. To that it was answered and resolved, that if it was admitted that a deed in such case should be requisite, yet without question all the estates limited would be good, although it is admitted, that the clause concerning the said privilege would be void."

In the great case of Allen v. Flood the opinion of Mr. Justice Hawkins furnishes a useful passage for the purpose now in view: