Though homicide was thus made a public offence and not a matter for private vengeance, it took long to discriminate between those forms of homicide which should and those which should not be punished.
The terms of act in English law used to describe criminal homicide are murder (mord, meurtre, murdrum), manslaughter and felo de se (or suicide by a person of sound mind).
The original meaning of the word “murder” seems to have been secret homicide,—“Murdrum proprie dicitur mors alicujus occulta cujus interfector ignoratur” (Dialogus de Scaccario i, x.); and Glanville says: Duo sunt genera homicidii, unum est quod dicitur murdrum quod nullo vidente nullo sciente clam perpetratur, ita quod non assignatur clamor popularis (hue and cry), est et aliud homicidium quod diciter simplex homicidium. After the Conquest, and for the protection of the ruling race, a fine (also called murdrum) was levied for the king on the hundred or other district in which a stranger was found dead, if the slayer was not brought to justice and the blood kin of the slain did not present Englishry, there being a presumption (in favour of the Exchequer) that the deceased was a Frenchman. After the assize of Clarendon (1166) the distinction between the killing of Normans and Englishmen gradually evaporated and the term murder came to acquire its present meaning of deliberate as distinct from secret homicide. In 1267 it was provided that the murder fine should not be levied in cases of death by “misadventure” (per infortunium).[1] But at that date and for long afterwards homicide in self-defence or by misadventure or even while of unsound mind involved at the least a forfeiture of goods, and required a pardon. These pardons, and restitution of the goods, became a matter of course, and the judges appear at a later date to have been in the habit of directing an acquittal in such cases. But it was not until 1828 that the innocence of excusable homicide was expressly declared. The rule is now expressed in s. 7 of the Offences against the Person Act 1861: “No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony.”
The further differentiation between different degrees of criminal homicide was marked by legislation of Henry VIII. (1531) taking away benefit of clergy in the case of “wilful murder with malice prepensed” (aforethought), and that phrase is still the essential element in the definition of “wilful murder,” which is committed “when a person of sound memory and discretion unlawfully killeth any reasonable creature or being and under the king’s peace with malice aforethought either express or implied” (3 Co. Inst. 47). The whole development of the substantive law as to murder rests on judicial rulings as to the meaning of malice prepense coupled with the extrajudicial commentaries of Coke, Hale and Foster; for parliament, though often tempted by bills and codes, has never ventured on a legislative definition. Much discussion has ranged round the phrase “malice aforethought,” and it has undoubtedly been expanded by judicial decision so as to create what is described as “constructive” murder. According to the view of the criminal code commissioners of 1879 (Parl. Pap., 1879, c. 23, 45, p. 23) the term “malice aforethought” is now a common name for all the following states of mind:—
1. An intent, preceding the act, to kill or do grievous bodily harm to the person or to any other person:
2. Knowledge that the act done is likely to produce such consequences, whether coupled with an intention to produce them or not:
3. An intent to commit any felony: or
4. An intent to resist an officer of police in the execution of his duty.
The third form of malice aforethought has been much controverted. When it was first recognized as creating a liability for wilful murder almost all felonies were capital offences: but even at the end of the 17th century Lord Holt expressed a view that it should be limited to felonies involving violence or danger to life, e.g. assault with intent to rob, or setting fire to a dwelling-house. And Sir James Stephen’s opinion is that, to justify conviction of murder by an act done with intent to commit a felony, the act done must be one dangerous to life or known to be likely to cause death.