It will be seen that the peril of conduct here begins farther back than with deceit, as the tendency of slander is more universally harmful.  There must be some concomitant circumstances.  There must at least be a human being in existence whom the statement designates.  There must be another human being within hearing who understands the statement, and the statement must be false.  But it is arguable that the latter of these facts need not be known, as certainly the falsity of the charge need not be, and that a man must take the risk of even an idle statement being heard, unless he made it under known circumstances of privilege.  It would be no great curtailment of freedom to deny a man immunity in attaching a charge of crime to the name of his neighbor, even when he supposes himself alone.  But it does not seem clear that the law would go quite so far as that.

The next form of liability is comparatively insignificant.  I mean the action for malicious prosecution.  A man may recover damages against another for maliciously and without probable cause instituting a criminal, or, in some cases, a civil prosecution against him upon a false charge.  The want of probable cause refers, of course, only to the state of the defendant’s knowledge, not to his intent.  It means the absence of probable cause in the facts known to the defendant when he instituted the suit.  But the standard applied to the defendant’s consciousness is external to it.  The question is not whether he thought the [141] facts to constitute probable cause, but whether the court thinks they did.

Then as to malice.  The conduct of the defendant consists in instituting proceedings on a charge which is in fact false, and which has not prevailed.  That is the root of the whole matter.  If the charge was true, or if the plaintiff has been convicted, even though he may be able now to prove that he was wrongly convicted, the defendant is safe, however great his malice, and however little ground he had for his charge.

Suppose, however, that the charge is false, and does not prevail.  It may readily be admitted that malice did originally mean a malevolent motive, an actual intent to harm the plaintiff by making a false charge.  The legal remedy here, again, started from the moral basis, the occasion for it, no doubt, being similar to that which gave rise to the old law of conspiracy, that a man’s enemies would sometimes seek his destruction by setting the criminal law in motion against him.  As it was punishable to combine for such a purpose, it was concluded, with some hesitation, that, when a single individual wickedly attempted the same thing, he should be liable on similar grounds. 1 I must fully admit that there is weighty authority to the effect that malice in its ordinary sense is to this day a distinct fact to be proved and to be found by the jury.