§ 135 Malice
Closely connected with the law and theory of intentional wrongdoing is the legal use of the word malice. In a narrow and popular sense this term means ill-will, spite, or malevolence; but its legal signification is much wider. Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia344 means badness, physical or moral—wickedness in disposition or in conduct—not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive.
We have seen, however, that intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive. In the phrases malicious homicide and malicious injury to property, malicious is merely equivalent to wilful or intentional. I burn down a house maliciously if I burn it on purpose, but not if I burn it negligently. There is here no reference to any ulterior purpose or motive. But on the other hand malicious prosecution does not mean intentional prosecution; it means a prosecution inspired by some motive of which the law disapproves. A prosecution is malicious, for example, if its ulterior intent is the extortion of money from the accused. So also with the malice which is needed to make a man liable for defamation on a privileged occasion; I do not utter defamatory statements maliciously, simply because I utter them intentionally.345
Although the word malitia is not unknown to the Roman lawyers, the usual and technical name for wrongful intent is dolus, or more specifically dolus malus. Dolus and culpa are the two forms of mens rea. In a narrower sense, however, dolus includes merely that particular variety of wrongful intent which we term fraud—that is to say, the intent to deceive.346 From this limited sense it was extended to cover all forms of wilful wrongdoing. The English term fraud has never received an equally wide extension. It resembles dolus, however, in having a double use. In its narrow sense it means deceit, as we have just said, and is commonly opposed to force. In a wider sense it includes all forms of dishonesty, that is to say, all wrongful conduct inspired by a desire to derive profit from the injury of others. In this sense fraud is commonly opposed to malice in its popular sense. I act fraudulently when the motive of my wrongdoing is to derive some material gain for myself, whether by way of deception, force, or otherwise. But I act maliciously when my motive is the pleasure of doing harm to another, rather than the acquisition of any advantage for myself. To steal property is fraudulent; to damage or destroy it is malicious.