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id； the plaintiff may meet this defence in some cases by showing that the words were spoken with actual malice。
All this sounds as if at least actual intent to cause the damage complained of； if not malevolence； were at the bottom of this class of wrongs。 Yet it is not so。 For although the use of the phrase 〃malice〃 points as usual to an original moral standard； the rule that it is presumed upon proof of speaking certain words is equivalent to saying that the overt conduct of speaking those words may be actionable whether the consequence of damage to the plaintiff was intended or not。 And this fails in with the general theory； because the manifest tendency of slanderous words is to harm the person of whom they are spoken。 Again； the real substance of the defence is not that the damage ＇139＇ was not intended； that would be no defence at all； but that； whether it was intended or not；that is； even if the defendant foresaw it and foresaw it with pleasure；the manifest facts and circumstances under which he said it were such that the law considered the damage to the plaintiff of less importance than the benefit of free speaking。
It is more difficult to apply the same analysis to the last stage of the process； but perhaps it is not impossible。 It is said that the plaintiff may meet a case of privilege thus made out on the part of the defendant； by proving actual malice； that is； actual intent to cause the damage complained of。 But how is this actual malice made out？ It is by showing that the defendant knew the statement which he made was false； or that his untrue statements were grossly in excess of what the occasion required。 Now is it not very evident that the law is looking to a wholly different matter from the defendant's intent？ The fact that the defendant foresaw and foresaw with pleasure the damage to the plaintiff； is of no more importance in this case than it would be where the communication was privileged。 The question again is wholly a question of knowledge； or other external standard。 And what makes even knowledge important？ It is that the reason for which a man is allowed in the other instances to make false charges against his neighbors is wanting。 It is for the public interest that people should be free to give the best information they can under certain circumstances without fear； but there is no public benefit in having lies told at any time； and when a charge is known to be false； or is in excess of what is required by the occasion； it is not necessary to make that charge in order to speak freely； and ＇140＇ therefore it falls under the ordinary rule； that certain charges are made at the party's peril in case they turn out to be false； whether evil consequences were intended or not。 The defendant is liable； not because his intent was evil； but because he made false charges without excuse。
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。
But this view cannot be accepted without hesitation。 It is admitted that； on the one side； the existence of probable cause； believed in； is a justification notwithstanding malice； /2/ that； on the other； 〃it is not enough to show ＇142＇ that the case appeared sufficient to this particular party； but it must be sufficient to induce a sober； sensible and discreet person to act upon it； or it must fail as a justification for the proceeding upon general grounds。〃 /1/ On the one side； malice alone will not make a man liable for instituting a groundless prosecution； on the other； his justification will depend； not on his opinion of the facts； but on that of the court。 When his actual moral condition is disregarded to this extent； it is a little hard to believe that the existence of an improper motive should be material。 Yet that is what malice must mean in this case； if it means anything。 /2/ For the evil effects of a successful indictment are of course intended by one who procures all other to be indicted。 I cannot but think that a jury would be told that knowledge or belief that the charge was false at the time of making it was conclusive evidence of malice。 And if so； on grounds which need not be repeated； malice is not the important thing； but the facts known to the defendant。
Nevertheless； as it is obviously treading on delicate ground to make it actionable to set the regular processes of the law in motion； it is； of course； entirely possible to say that the action shall be limited to those cases where the charge was preferred from improper motives； at least if the defendant thought that there was probable cause。 Such a limitation would stand almost alone in the law of civil liability。 But the nature of the wrong is peculiar； and； moreover； it is quite consistent with the theory of liability here advanced that it should be confined in any given instance to actual wrong…doing in a moral sense。
The only other cause of action in which the moral condition ＇143＇ of the defendant's consciousness might seem to be important is conspiracy。 The old action going by that name was much like malicious prosecution； and no doubt was originally confined to cases where several persons had conspired to indict another from malevolent motives。 But in the modern action on the case； where conspiracy is charged； the allegation as a rule only means that two or more persons were so far co…operating in their acts that the act of any one was the act of all。 Generally speaking； the liability depends not on the co…operation or conspiring； but on the character of the acts done； supposing them all to be done by one man； or irrespective of the question whether they were done by one or several。 There may be cases； to be sure； in which the result could not be accomplished； or the offence could not ordinarily be proved； without a combination of several； as； for instance； the removal of a teacher by a school board。 The conspiracy would not affect the case except in a practical way； but the question would be raised whether； notwithstanding the right of the board to remove； proof that they were actuated by malevolence would not make a removal actionable。 Policy； it might be said； forbids going behind their judgment； but actual evil motives coupled with the absence of grounds withdraw this protection； because policy； although it does not require them to take the risk of being right； does require that they should judge honestly on the merits。 /1/
Other isolated instances like the last might； perhaps； be found in different parts of the law； in which actual malevolence