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.[1]
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,[2] 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[3] the opinion of Mr. Justice Hawkins furnishes a useful passage for the purpose now in view:
- ↑ As regards the general duty to testify, specific performance may usually be had under duress of potential or actual contempt proceedings; and, apart from that, failure to testify might subject the wrongdoer either to a statutory liability for a penalty in favor of the injured party litigant or, in case of actual damage, to a common law action on the case.The subject of witnesses is usually thought of as a branch of the so-called adjective law, as distinguished, from the so-called substantive law. But, as the writer has had occasion to emphasize on another occasion (The Relations betwen Equity and Law, 11 Mich. L. Rev., 537, 554, 556, 569), there seems to be no intrinsic or essential difference between those jural relations that relate to the "substantive" law and those that relate to the "adjective" law. This matter will be considered more fully in a later part of the discussion.
- ↑ (1583) 9 Coke, 1.
- ↑ (1898) A. C., 1, 19.
