preme Courts agreed with Lord Mansfield’s reasoning. See, e.g., Burns v. Erben, 40 N.Y. 463, 469 (1869) (opinion of Woodruff, J.) (quoting Ledwith); Brockway v. Crawford, 48 N.C. 433, 437 (1856) (“[The] exempt[ion] for responsibility” for arrests based on probable cause “encourages . . . a sharp look-out for the apprehension of felons”). As one court put it, “How, in the great cities of this land, could police power be exercised, if every peace officer is liable to civil action for false imprisonment” whenever “persons arrested upon probable cause shall afterwards be found innocent?” Hawley v. Butler, 54 Barb. 490, 496 (N. Y. Sup. 1868).
Courts also stressed the importance of probable cause when defining the torts of malicious prosecution and malicious arrest. See, e.g., Ahern v. Collins, 39 Mo. 145, 150 (1866) (holding that “malice and want of probable cause are necessary ingredients of both”). For the tort of malicious prosecution, courts emphasized the “necessity” of both the “allegation” and “proof” of probable cause, in light of the public interest “that criminals should be brought to justice.” Hogg v. Pinckney, 16 S.C. 387, 393 (1882); see also Chrisman v. Carney, 33 Ark. 316, 326 (1878) (“The existence of probable cause is of itself alone a complete defense. . . . The interest which society has in the enforcement of the criminal laws requires this rule”). Similarly, if the element of probable cause were not “strictly guarded,” “ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law and discharge his duty to society, with the prospect of an annoying suit staring him in the face.” Ventress v. Rosser, 73 Ga. 534, 541 (1884); accord, Cardival v. Smith, 109 Mass. 158 (1872). The element of probable cause also played an evidentiary role for both torts. Lack of probable cause provided “evidence of malice, though inconclusive,” Herman v. Brookerhoff, 8 Watts 240, 241 (Pa. 1839), because “[m]alice may be inferred from a
