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Malice aforethought was the "premeditation" or "predetermination" (with malice) that was required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.
Malice aforethought was not an element of murder in early medieval English law cases. Both self-defense killings and deaths caused by misadventure were treated as murder by juries. Although pardons for self-defense became common after the Statute of Gloucester was passed in 1278, in a 14th-century case the jury still find that a self-defense killing was felonious.
In the 12th century, any death by misadventure without a "presentment of Englishry" was sufficient for a jury finding of murder, even in cases where there was no suspect and the victim's identity is unknown. The murder fine was levied in these cases under the Laws of Henry until 1267, when the fine for death by misadventure was abolished by the Statute of Marlborough during the baronial reform movement. The primary meaning of murdurum continued to be murder fine until the fine was abolished by the Engleschrie Act of 1340.
The first statutory mention of malice aforethought dates to the reign of Richard II in 1389. In 1390 Parliament defined murder as "death of a man slain by await, assault, or mallice prepensed". Henceforth, juries were instructed to consider whether a felony had been committed with malice aforethought. A 1403 jury instruction recorded in a 16th-century manuscript written by Edward Stillingfleet reads: "Also you will inquire about all sorts of homicides both of those who lie in wait through malice aforethought [par malice devant pourpense] in the peace of homes and other places [and who] murder people and of those who slay men through a hot-blooded mêlée [chaude melle]".
Some scholars have identified concepts from Anglo Saxon law as the origin for malice aforethought, but the connection is disputed. The Anglo Saxon legal concept of forsteal included lying in wait and ambush, but it remains unclear whether or not premeditation or intent were requirements for murder during this early period. It has been argued that forsteal became agwait purpense in medieval English law, which was also called agwait premeditatus in Latin.
In 1552 malice aforethought is applied as a requirement for murder in Thomas Buckler's Case. Malice aforethought emerges as an ill-defined concept from the writings of Blackstone, Joseph Chitty and their predecessors, Matthew Hale and Edward Coke.
Distinguished from manslaughter
After the Norman conquest common law courts began to distinguish murders from homicides that occur during sudden brawls. Over centuries this distinction evolved into an early form of the doctrine of provocation that distinguishes murder from voluntary manslaughter. By the time the Statute of Stabbing was passed in 1604 judges had started to consider whether provocation was sufficient in "heat of the blood" cases. During the 17th century this was more clearly articulated in subsequent cases and gradually developed into the common law categorical test for provocation. The Statute of Stabbing had removed the benefit of clergy for cases where there was a killing without provocation.
Early American law
As of 1891, Texas courts were overwhelmed with discussing whether "malice" needs to be expressed or implied in the judge's jury instructions. However, the 1970s revision of the Texas Penal Code states that a murder must be committed "intentionally or knowingly" in Texas.
In English law, the mens rea requirement of murder is either an intention to kill or an intention to cause grievous bodily harm. In R v Moloney , Lord Bridge held that intent is defined in the mens rea requirement of murder 'means intent' so the jury should simply use the term intent legally as they would in normal parlance. Furthermore, he held that for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This element of intention is fulfilled when the defendant's motive or purpose was to cause death or serious bodily harm (also known as 'direct intent') but also when the defendant's motive or purpose was not to cause death or grievous bodily harm but (as held by Lord Steyn in R v Woollin) death or serious bodily harm was a 'virtual certainty' of the defendant's act, and the defendant appreciated that to be so (also known as 'oblique intent.')
To varying extents in the United States, the requisite intention can also be found where the perpetrator acts with gross recklessness showing lack of care for human life, commonly referred to as "depraved-heart murder", or during the commission of or while in flight from any felony or attempted felony (termed felony murder). In England, such mens rea would result only in a verdict of reckless or constructive manslaughter.
Notably, the principle of transferred intent causes an accused who intended to kill one person but inadvertently killed another instead to remain guilty of murder. The intent to kill the first person suffices.
In most common law jurisdictions, the American Law Institute's Model Penal Code, and in the various U.S. state statutes, which have codified homicide definitions, the term has been abandoned or substantially revised. The four states of mind that are now recognized as constituting "malice aforethought" in murder prosecutions are as follows:
- intent to kill
- intent to inflict serious bodily injury
- extremely reckless disregard for the value of human life
- felony murder rule
Malice aforethought is no longer regarded as a necessary mens rea element to prove a murder conviction. The term is a catch-all phrase that encompasses all the states of mind that are sufficient mens rea for murder. Most Australian jurisdictions require some degree of actual awareness of the resulting consequences of the accused's own actions to justify a murder conviction. The High Court of Australia affirmed that there is a spectrum of mens rea ranging from intention to kill to reckless indifference that would be relevant in securing a murder conviction. However, the High Court ruled that it was not necessary to prove malice aforethought in a manslaughter conviction. The Full Court of the Supreme Court of Victoria distinguished between the two classes of manslaughter. They were manslaughter by reckless indifference and manslaughter by criminal negligence in R v Nydam in which malice aforethought was definitively ruled out as an element in a charge of manslaughter by criminal negligence.
- The Free Legal Dictionary, citing, West's Encyclopedia of American Law, edition 2. Accessed November 15, 2010.
- Peter M. Tiersma, A History Of The Languages Of Law, (2012), (last visited Feb 2, 2018).
- Michael H. Hoffheimer, Murder and Manslaughter in Mississippi: Unintentional Killings, 71 Miss. L.J. 35, 39 (2001)
- Leges Henrici 91; 52 Hen. III, c.25
- 14 Edw. III St. 1 c. 4
- Walter Wheeler Cook, et al., Malice Aforethought, 33 Yale L.J. 528, 529-531 (1924)
- 13 Rich. II St. 2 c. 1
- Harl. MS 773; Jeremy Horder, Provocation and Responsibility (1992), p.10
- Wight, C. "Details of an item from the British Library Catalogue of Illuminated Manuscripts" (Text). Retrieved 2018-02-05.
- II Cnut, 12-15; Leges Henrici. 80 secs. 2,4
- Leges Wilhelmi, I. 2
- Thomas Welburn Hughes, A treatise on criminal law and procedure (1919) § 110, p. 72. Found at Google Books. Accessed November 15, 2010.
- See The Free Legal Dictionary, citing, John Bouvier A Law Dictionary, Adapted to the Constitution and Laws of the United States (1856), citing Fost. 424; Yelv. 205; 1 Chit. Cr. Law, *242, 2 Chit. Cr. Law, *787; 1 East, Pl. Or. 402. 2 Mason, R. 91. Accessed November 15, 2010.
- See Ainsworth v. State, 16 S.W. 652 (Tex. 1891), Washington v. State, 16 S.W. 653 (Tex. 1891), Mendez v. State, 16 S.W. 766, 767 (Tex. 1891), and Martinez v. State, 16 S.W. 767, 768 (Tex. 1891), found at Google Books. Accessed November 15, 2010.
- R v Moloney  UKHL 4,  AC 905, House of Lords (UK).
- R v Woollin  UKHL 28,  AC 82, House of Lords (UK)
- "Cases on mens rea" (PDF). Lawteacher.net. Archived from the original (PDF) on 3 December 2012. Retrieved 2 May 2013.
- Wise, Edward. "Criminal Law" in Introduction to the Law of the United States (Clark and Ansay, eds.), 154 (2002).
- He Kaw Teh v R  HCA 43, (1985) 157 CLR 523 (11 July 1985), High Court (Australia).
- R v Crabbe  HCA 22, (1985) 156 CLR 464, High Court (Australia).
- R v Lavender  HCA 37, High Court (Australia).
- R v Nydam  VicRp 50,  VR 430 at p 437, Supreme Court (Full Court) (Vic).