Malice Aforethought in England, 1785–1967

This article examines the modern history of the law of murder and its defining feature: malice aforethought. The main part focuses on nineteenth-century trials where, as full adversarial process took hold and societal fears about interpersonal violence grew, the meaning and scope of malice aforethought was subjected to new levels of scrutiny. Defence lawyers insisted that it required premeditation and ill-will; prosecutors sought to widen the circumstances in which it could be implied and narrow the grounds on which it could be negatived. In the first half of the twentieth century, this trial-centred perspective was subordinated to that of the new criminal appellate courts. Their attempts to reconcile conflicting decisions and accommodate an increasingly critical academic literature produced some seminal House of Lords decisions. The final part of the article examines these decisions and demonstrates the lasting influence on the modern law of homicide of canons forged in nineteenth-century trials.