MALICE - The Law Mind Legal Dictionary

MALICEAuthored

The Law Mind • 1391 words

Definition

Malice is a legal term of art describing a culpable mental state that goes significantly beyond ordinary ill will or spite. Its precise meaning varies by context, but in all legal uses it refers to some form of intentional, unjustified wrongdoing — not merely hostility or bad feeling toward another.

Malice in criminal law (general). A wrongful act done intentionally, without just cause or excuse. The term encompasses a conscious disregard of the law that operates to another's prejudice. It does not require personal hatred; a defendant may act with legal malice toward a stranger or even toward no specific person.

Express malice. A deliberate, premeditated intent to kill or cause serious harm, demonstrated by direct evidence of the actor's purpose. In homicide law, express malice supports a murder charge at the highest degree.

Implied (or constructive) malice. Malice inferred by law from the nature of the act itself — particularly where the act is so dangerous or reckless that the law treats it as equivalent to a deliberate intent to harm. No proof of subjective ill will is required.

Malice in civil law (tort). In defamation, malice traditionally meant publication of a false statement with knowledge of its falsity or reckless disregard for its truth. After New York Times Co. v. Sullivan (1964), the term "actual malice" acquired a specific constitutional meaning in U.S. defamation law: knowledge of falsity or reckless disregard for truth, not mere spite or ill motive.

Malice in law vs. malice in fact. Courts and treatises have distinguished legal malice (the intentional doing of a wrongful act without excuse, imputed by operation of law) from actual malice (a subjective state of ill will or evil purpose). The distinction matters: legal malice can be established without any proof that the defendant personally wished harm on the plaintiff.

Common Language

Modern common usage (Wiktionary): Intention to harm or deprive in an illegal or immoral way; desire to take pleasure in another's misfortune.

Historical common usage (Webster's 1913): Enmity of heart; malevolence; ill will; a spirit delighting in harm or misfortune to another; a disposition to injure another.

Editorial note: Both common definitions center on personal hostility — a bad feeling directed at a specific person. The legal definition deliberately breaks from this. In most legal contexts, malice requires no personal animosity whatsoever. A defendant who recklessly disregards another's rights, or who intentionally does a wrongful act without caring whom it harms, may act with legal malice even while harboring no subjective ill will. Researchers reading older cases who encounter the word "malice" should not assume the court meant spite or hatred.

Common Confusion

Malice vs. intent. Malice is not synonymous with intent, though the terms overlap. Intent means the defendant purposely brought about a result; malice adds a normative dimension — the act was wrongful and without lawful justification. A defendant can intend an act (say, a lawful use of force in self-defense) without acting with malice. Conversely, implied malice can exist even where specific harmful intent is not proven.

Malice vs. motive. Courts consistently distinguish malice from motive. A defendant may have an understandable motive (financial desperation, revenge) and still have acted with malice; a defendant may have acted with malice and have no discernible personal motive at all. The confusion appears frequently in older jury instructions.

Actual malice (constitutional) vs. actual malice (common law). Before Sullivan, "actual malice" in defamation simply meant real, subjective spite — as opposed to malice implied by law. After Sullivan, "actual malice" became a constitutional term of art meaning knowledge of falsity or reckless disregard for truth — which has nothing to do with ill will. Pre-1964 sources and post-1964 sources use the identical phrase to mean different things.

Recognized Forms

/SUBTYPES

Express malice: Deliberate, premeditated intent to harm, shown by direct evidence.
Implied (constructive) malice: Malice inferred from the character of the act, without proof of subjective intent.
Malice in law: Legal malice imputed by operation of law from an intentional wrongful act.
Malice in fact: Actual, subjective ill will toward the person harmed.
Actual malice (constitutional): The Sullivan standard — knowledge of falsity or reckless disregard for truth — applicable in defamation claims brought by public officials and public figures.

Why It Matters in Research

The single greatest trap in researching malice across historical sources is that the word carries different technical meanings in different doctrinal contexts, and those meanings have shifted over time. A researcher reading a nineteenth-century homicide opinion who encounters "malice aforethought" is reading a term of art with a centuries-long common law pedigree — not a finding that the defendant personally hated the victim. A researcher reading a pre-1964 defamation case who sees "actual malice" is reading a phrase that means the opposite of what it means in post-Sullivan First Amendment doctrine.

In homicide law, malice aforethought historically encompassed four distinct states of mind: intent to kill, intent to cause grievous bodily harm, knowledge that death was a probable consequence, and intent to commit a felony (felony murder). Modern codes have largely replaced this formulation with statutory mental state requirements (purpose, knowledge, recklessness), but older cases still turn on the common law framework. Researchers working in pre-twentieth-century criminal sources must reconstruct which form of malice is at issue.

In tort research, malice matters to qualified privilege. A defendant who would otherwise be shielded by qualified privilege loses that protection upon a showing of malice — but courts define that malice differently, sometimes requiring actual spite, sometimes requiring only reckless disregard. Always identify which jurisdiction's standard the source applies.

The Law Mind corpus will surface malice across criminal, tort, and constitutional materials. Because the term appears in all three domains with overlapping but non-identical meanings, cross-domain searching requires care. A search for "actual malice" in constitutional law materials will retrieve Sullivan-doctrine cases; the same search in a nineteenth-century defamation corpus will retrieve cases about subjective ill will.

Historical Dictionary Support

The historical dictionaries converge on the criminal law core: malice is a wrongful act done intentionally without just cause or excuse. Black's (both editions) and Bouvier's track each other closely, drawing on the same English authority (Bromage v. Prosser) for the proposition that legal malice is not mere personal ill will. This is the most important shared insight in the historical record: the legal definition was consciously constructed in opposition to the popular meaning.

Burrill departs from the others in leading with the common-sense meaning — "wickedness of purpose; a spiteful or malevolent design" — before acknowledging the broader legal sense. This reflects an older tradition in which actual spite was closer to the center of the concept. Researchers relying on Burrill for the definition of malice in a late nineteenth-century case should note that courts of that period were actively debating which conception governed.

Anderson's contribution is useful for defamation specifically: malice in publication may consist in reckless disregard of another's rights, not only direct intent to injure. This anticipates the constitutional doctrine of actual malice by many decades, though it rests on different grounds.

What the historical dictionaries generally miss is the post-Sullivan bifurcation of actual malice into two incompatible meanings. None of the shelf sources addresses constitutional malice doctrine, which is entirely a product of twentieth-century First Amendment jurisprudence.

Jurisdictional Note

The malice aforethought framework for homicide has been substantially reformed by statute in most U.S. jurisdictions. Many states and the Model Penal Code have replaced malice with explicit mental state tiers (purposely, knowingly, recklessly, negligently). English law has also significantly recast the doctrine. Researchers should verify whether a given jurisdiction still uses common law malice terminology or has codified its homicide mental states before applying historical doctrine.

Encyclopedia Cross-Reference

Defamation and the First Amendment — New York Times v. Sullivan and Actual Malice (The Law Mind Constitutional Law Encyclopedia)

MALICEmain

Black's Law Dictionary • 1891

In criminal law. In its legal sense, this word does not simply mean ill will against a person, but signifies a wrong- ful act done intentionally, without just cause or excuse. 4 Barn. & C. 255. A conscious violation of the law (or the prompting of the mind to commit it) which operates to the prejudice of another person. About as clear, comprehensive, and correct a definition as the authorities afford is that "malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." 8 Tex. App. 109. "Malice," in its common acceptation, means ill will towards some person. In its legal sense, it applies to a wrongful act done intentionally, with- out legal justification or excuse. 1 Ind. 844. A man may do an act willfully, and yet be free of malice. But he cannot do an act maliciously without at the same time doing it willfully. The malicious doing of an act includes the willful do- ing of it. Malice includes intent and will. 66 Me. 828. Malice is either express or implied. The former is the case where the party declares or manifests a positive intention to commit the crime; while implied malice is gathered, as an inference of law, from the facts and cir- cumstances proved. In the definition of "murder," malice aforethought exists where the person doing the act which causes death has an intention to cause death or grievous bodily harm to any person, (whether the person is actually killed or not,) or to commit any felony what- ever, or has the knowledge that the act will probably cause the death of or grievous bod- ily harm to some person, although he does not desire it, or even wishes that it may not be caused. Steph. Crim. Dig. 144; 1 Russ. Crimes, 641. The words "malice aforethought" long ago ac- quired in law a settled meaning, somewhat different from the popular one. In their legal sense they do not import an actual intention to kill the deceased. The idea is not spite or malevolence to the deceased MALITIA PRÆCOGITATA in particular, but evil design in general, the dictate of a wicked, depraved, and malignant heart; not premeditated personal hatred or revenge towards the person killed, but that kind of unlawful pur- pose which, if persevered in, must produce mis- chief. 49 N. H. 399.

MALICEmain

Black's Law Dictionary (2nd Ed.) • 1910

In criminal law. In its legal sense, this word does not simply mean ill will against a person, but signifies a wrongful act done intentionally, without just cause Or excuse. Bromage v. Prosser, 4 Barn. & C. 255. A conscious violation of the law (or the prompting of the mind to commit it) which operates to the prejudice of another person. . About as clear, comprehensive, and correct a definition as the authorities afford is that “malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken: Harris v. State, 8 Tex. App. 100. — “Malice,” in its common acceptation, means ill will towards some person. In its legal sense, it applies to a wrongful act done intentionally, ' ape et as justification or excuse. Dunn ¥. ‘'Hall,~ A man: may oe an act ‘willfully, and yet be free of malice. But he cannot do an act maliciously without at the same time doing it willfully. The malicious doing of: an act includes ‘the -willful' doing of it. Malice. includes intent and -will..§ State v. Robbins, 66 Me. 328. For other definitions see Shannon v. Jones, 76 Tex. 141, 138 S. W. 477; Williams v. Williams, 200 Colo. 51, 37 Pac. 614; Smith v. Railroad Co., 87 Md. 48, 38 Atl. 1072; In re Freche (D. C) 109 Fed. 621; Craft v. State, 3 Kan. 486: Lewis v. Chapman. 16 N. Y. 369; State v. Avery. 113 Mo. 475, 21 S. W. 198; State v. Witt) 34 Kan. 488, 8 Pac. 769; State v. Walker, 9 Houst. (Del.) 464, 33 Atl. 227: Cotton v. State. 32 Tex. 614: Com. v. Chance, 174 Mass. 245, 54 N. E. 551, 7 Am. St. Rep. 306. In the law of libel and slander. An evil intent or motive arising from spite or fll will; personal hatred or {ll will: culpable recklessness or a willful and wanton disregard of the rights and interests of the per- son defamed. McDonald v. Brown, 23 R. Y. 546, 51 Atl. 213, 58 L. R. A. 768, 91 Am. St. Rep. 659; Hearne v. De Young, 132 Cal. 357, 64 Pac. 576; Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323, & L. R. A. 855, 89 Am. St. Rep. 365; Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668. —Actual malice. Express malice, or malice in fact. Gee v. Culver, 13 Or. 598, 11 Pac. 302.—Constructive malice. Implied malice; malice inferred from acts; malice imputed by. law; malice which is not shown by direct proof of an intention to do injury, (express malice,) but which is inferentially established by the necessarily injurious results of the acts shown to have been or State v. Har rigan, 9 Houst. (Del.); 369, 31 Atl. 1032 : Hogan v. State, 36 Wiss 4 a ceed v. Raymond, 2 Abb. Prac. (N. Y.) 196.—Express malice. Actual malice; malice in fact; a deliberate intention to commit an injury, evidenced by external circumstances. Sparf_v. U. §., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Bd. 343: Farrer v. State, 42 Tex. 271; Singleton v. State, 1 Tex. App. 507; Jones v. State, Ga. 504; Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; oward v. Sexton, 4N. Y. 161; Herbener _v. Crossan, 4 Pennewill (Del.) 38, 55 Atl. 224—General malice. General malice is wickedness, a disposition to do wrong, a “black and diabolical heart, regardless of social duty: and fatally bent on mischief.” Neal v. Nelson, 117 N. C. 398, 23 S. E. 53 Am, St. Rep. 590: Brooks v. Jones, 33 N. C. 260.—Im plied malice. Malice inferred by legal] reasoning and necessary deduction from the res geste or the conduct of the party. Malice inferred from any deliberate cruel act committed by one person against another, however sudden. Whart. Hom. 38. What is called “general malice” is often thus inferred. spare Me U. S.. 156 U. S. 51, 15 Sup. Ct. 273, 89 L 348 ; Hotema v. U. S., 186 U. S. 413, a She: Ct. 895, 46 L. Ed. 1225 : Darry Vv. x Reople, ia 10 a Y. 120; State v. Mason, 54 E. 357; State v. Neal, 37 Me. pny age grep 9 Houst. (Del.) 869, 31 Atl. 1052. —Legal m ce. An expression used as the equivalent of * ‘constructive malice,” or “malice in law.” Humphries v. Parker, 52 Me. 502.—Malice aforethougcht. In _ the definition of ‘‘murder,” malice aforethought exints where the person doing the act which caus- ‘es death has an intention to cause death or grievous bodily harm to any person, (whether the person is actually killed or not,) or to commit any felony whatever, or has the knowledge that the act will probably cause the death of or grievous bodily harm to some person, although he does not desire it. or even wishes that it may not be caused. Steph. Crim. Dig. 144; 1 Russ. Crimes, 641. The words “malice aforethought” long ago acquired in law a settled meaning, somewhat different from the pular one. In their legal sense they do not import an actual intention to kill the deceased. The idea is not. spite or malevolence to the deceased in particular, but evil design in general, the dictate of a wicked, depraved, and malignant heart; not premeditated personal hatred or revenge towards the person killed, but that kind of unlawful purpose which. if persevered in, must produce mischief. State v. Pike, 49 N. H. 399. 6 Am. Rep. 533. And see Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct 62. 40 L. Ed. 237; State v. Fiske, 63 Conn. 388, 28 Atl. 572; Nye v. People, 35 Mich. 19; People v. Borgetto, 99 Mich. 336, 58:N. Ww. 328: Darry v. People, 10 N. Y. 120: Allen v. U. S.. 164 U. S. 492. 17 Sup. Ct. 154, 41 L Ed. 528: Kota v. People, 136 mil. 655, 27 N. E. 53: Togan v. State, 36 Wis. 242.—Malice in fact. ress or actual malice.. Railw ay Co. v. Behee, CD Tex. Civ. App. 107, 21 S. W. 384; Hotchkiss v. Porter, 30 Conn. 414.—Malice in law. Implied, inferred, or legal malice. See Smith v. Rodecap, 5 Ind. App. 78, 81.N. EB. 479; Bacon v. Railroad Co., 66 Mich. 166, 33 N. W. 181.—Malice prepense. Malice aforethought; deliberate, predetermined malice. 2 Rolle 461.—Particular malice. Malice directed agairat a particular individual; ill will; a grudge; a desire to be revenged on a particular person. Brooks vy. Jones, 33 N. C. 261; State v. Long, 117 N. C. 791, 23 S. E. 431— Preconceived malice. Malice prepense or aforethought. See State v. Reidell, 9 Houst. ee) 470, 14 Atl. 550.—Premeditated malce. An intention to kill er bephbe A deliberately formed in the mind as the result of a determination meditated upon and fixed before the act. State v. Gin Pon, 16 Wash. 425, 47 Pac. 961; Milton v. State, 6 Neb. 143; State v. Rutten, 13 Wash. 211, 43 Pac. 30.—Special malice. Particular or personal malice; that is, hatred, ill will, or a vindictive disposition against a particular individual —Universal ce. By this term is not meant a malicious urpose to take the life of all persons, but it s that depravity of the human heart which determines to take life upon slight or insufficient provocation, without knowing or ae Mn may be the victim. Mitchell v. State, a. 30.

MALICEmain

Rapalje & Lawrence • 1883

(783) acceptor of a bill of exchange. Byles Bills (11 edit.) 5, 215. MAKING, (a promissory note, includes delivery). 6 Barb. (N.Y.) 662; 15 Id. 282; 2 Cow. (Ν. Υ.) 536; 10 How. (N. Y.) Pr. 274; 7 T. R. 596. MAKING A LIBEL, (charging a person with, is actionable). 3 Serg. & R. (Pa.) 255, 256. MAKING AN ARTICLE, (in a statute). L. R. 4 Q. B. 209.

MALICEn.

Websters Unabridged Dictionary (1913) • 1913

Enmity of heart; malevolence; ill will; a spirit delighting in harm or misfortune to another; a disposition to injure another; a malignant design of evil. "Nor set down aught in malice." Shak. Envy, hatred, and malice are three distinct passions of the mind. Ld. Holt. Any wicked or mischievous intention of the mind; a depraved inclination to mischief; an intention to vex, annoy, or injure another person, or to do a wrongful act without just cause or cause or excuse; a wanton disregard of the rights or safety of others; willfulness. Malice aforethought or prepense, malice previously and deliberately entertained.

MALICEv.

Websters Unabridged Dictionary (1913) • 1913

To regard with extreme ill will. [Obs.]

malicenoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

Intention to harm or deprive in an illegal or immoral way. Desire to take pleasure in another's misfortune. | An intention to do injury to another party, which in many jurisdictions is a distinguishing factor between the crimes of murder and manslaughter.

maliceverb

Wiktionary (English) • 2026

To intend to cause harm; to bear malice.

Explore the full Law Mind legal research platform.

Subscribe Encyclopedia Sign In