Odger's English Common Law

. Again,
MALICE. 123
(4) Malice.
there are some cases in which it is not enough for
the prosecution to prove mens rea ; it must in addition prove
malice. Malice is the most unsatisfactory term in our legal
vocabulary ;
it is used in a great variety of different meanings,
each of which it is hard to state in a definition at once precise
and terse. But in all these cases the word " malice " means
something more than mens rea ;
and in nearly all these cases,
if not in all, it consists in doing wrong intentionally and from
some improper motive. Malice as a rule implies the existence
of some direct purpose in committing the crime, and such
purpose must be either unlawful or immoral ; in other words,
there must be a bad motive as well as a criminal intention.
Much of the difficulty which a modern lawyer has in dealing with the
word " malice " is caused by the wholly unnecessary invention towards the
end of the seventeenth century of a fictitious entity called "malice in
law." That difficulty we have endeavoured in these pages to avoid by
never using the phrase " malice in law " and by restoring the word
"malice" to its earlier meaning. There is not now and never was such
a thing as " malice in law ; " it was always the vaguest possible phrase
merely a name for the " absence of legal excuse " for some act prima facie
unlawful. We have therefore abandoned this technical and fictitious use
of the term. Throughout this book, to use the words of Brett, L. J., 1
" ' Malice ' does not mean ' malice in law,' a term in pleading, but actual
malice, that which is popularly called malice. . . . Here we are dealing with
malice in fact, and malice then means a wrong feeling in a man's mind."
The words " malice" and " malicious " still bear different
meanings in connection with different crimes. A prisoner
cannot be convicted of murder unless he killed his victim
"with malice aforethought express or implied." Malice
aforethought is a technical phrase ; it means—in most cases
of murder at all events—a wicked and preconceived determina-
tion to kill some human being. 2
—
In cases of less serious injury
to the person the word malice has a much wider meaning. It
is not necessary to prove that the prisoner had any spite or
ill-will against the person injured or even that he intended to
wound or inflict grievous bodily harm on that particular
person. He will be deemed to have acted maliciously if he
i Clark v. Molyneux (1877), 3 Q. B. D. at p. 247.
2 See post, pp. 275 et seq.