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felong murder

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   A. Homicide in the Course of Crime in Early English Law 
   B. Distinguishing Murder and Manslaughter in Sixteenth-Century 
   C. Rejecting an Unlawful Act Murder Rule in Seventeenth-Century 
   D. Proposing a Felony Murder Rule in Eighteenth-Century England 
   A. Homicide in the Course Crime in Colonial America 
   B. Common Law and Statute in the New Republic 
   C. Legislative Reform of Homicide Law 
   A. American Views on Felony Murder as Common Law 
   B. Jurisdictions Leaving Murder Undefined 
   A. Felony Murder in Pennsylvania 
   B. The Pennsylvania Model in Other States 
   C. The Pennsylvania Model Modified: Felony Aggravator Statutes 
   with Culpability 
   D. Summary 
   A. Implied Malice Felony Murder Statutes 
  1. The Illinois model: "Abandoned and malignant heart" 
  2. The California model: Implied malice with enumerated 
  3. The Texas "transferred intent" statute 
   B. Felony Murder Statutes Without Malice 
   C. Third Degree Felony Murder Statutes 
   D. Dangerous Felonies Statutes 
   E. Summary 
   A. Predicate Felonies 
   B. Means of Killing 
   C. Accomplice Liability 


Felony murder liability is one of the most persistently and widely criticized features of American criminal law. (1) Much of the criticism is directed at a sweeping doctrine holding felons strictly liable for any death resulting from any felony. (2) Many commentators and courts assert or assume that this harsh doctrine long prevailed as the common law rule in England, was received into American law upon independence, and remains the law except where modified by enlightened legislation or judicial decision. William Clark and William Marshall summed up this prevailing view on the origin of American felony murder rules in their early twentieth-century treatise on crimes:

   At common law, malice was implied as a matter of law in every case 
   of homicide while engaged in the commission of some other felony, 
   and such a killing was murder whether death was intended or not.... 
   On this principle, it was murder at common law to unintentionally 
   kill another in committing, or attempting to commit, burglary, 
   arson, rape, robbery, or larceny. The doctrine has repeatedly been 
   recognized and applied in this country, and is to be regarded as 
   still in force, except where it has been expressly abrogated by 
  The decisions at common law do not require that the act done 
   shall have been of such a nature as to endanger life, or threaten 
   great bodily harm.... If it had been otherwise, the doctrine would 
   have been altogether unnecessary, because the killing would be 
   murder because of the tendency of the act, without regard to its 
   being done in the commission of a felony. (3) 

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. According to Wayne LaFave's treatise,

   At one time the English common law felony-murder rule was that one 
   who, in the commission or attempted commission of a felony, caused 
   another's death, was guilty of murder, without regard to the 
   dangerous nature of the felony involved or to the likelihood that 
   death might result from the defendant's manner of committing or 
   attempting the felony. (4) 

Similarly, the American Law Institute's Model Penal Code Commentaries refer to "the common-law felony-murder doctrine" (5) and explain that the "classic formulation of the felony-murder doctrine declares that one is guilty of murder if death results from conduct during the commission or attempted commission of any felony.... As thus conceived, the rule operated to impose liability for murder based on ... strict liability." (6) According to Joshua Dressler's textbook, "At common law, a person is guilty of murder if she kills another person during the commission or attempted commission of any felony. This is the so-called 'felony murder rule.' ... The felony-murder rule applies whether a felon kills the victim intentionally, recklessly, negligently, or accidentally and unforeseeably." (7) Arnold Loewy's Criminal Law in a Nutshell informs students that "[a]t early common law, felony murder was a simple proposition: any death resulting from a felony is murder. Thus a totally unforeseeable death resulting from an apparently non-dangerous felony would be murder." (8)

All of these texts imply that this harsh common law rule was incorporated into American law at independence, where it persists to this day, except where mitigated by judicial or legislative reforms. Similar accounts of the development of American felony murder rules appear in other treatises and texts, (9) in court opinions, (10) in scholarly articles, (11) and in law review comments. (12) Based on such accounts, critics attack modern rules as "anachronistic" legacies of a morally regressive age. (13)

Yet none of these accounts manages to identify when this supposed common law rule of strict liability for all deaths resulting from felonies became the law in England. None identifies a single case in which it was applied in England before American independence. LaFave, for example, explains that as felonies proliferated, the English felony murder rule became broader in scope and harsher in effect, until it was finally thought necessary to restrict it. (14) Yet he does not identify any examples of harsh applications of the rule. Indeed, he does not demonstrate that the rule was ever applied before it was thus "restricted." These accounts are equally hazy about early American law. None of them documents application of such a rule in colonial America, or in the early American republic. None of them troubles to show that such a rule ever led to the conviction of felons who had caused death truly accidentally, that is, without culpability.

In short, there is something suspicious about our received account of the origins of American felony murder rules. (15) This Article vindicates such suspicion and exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules in order to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law.

Americans did not receive any felony murder rules from England, for the simple reason that there was no common law felony murder rule at the time of the American Revolution. English law traditionally imposed murder liability for most deaths caused by the intentional infliction of injury. Such killings were murders whether or not they occurred in the context of a felony, while a felony could not transform an accidental death into a murder. While a broad felony murder rule was proposed in some eighteenth-century, English treatises, and discussed favorably in some eighteenth-century English cases, it was not applied. Such a rule might have made sense in a legal system that defined a limited number of felonies, considered all these felonies dangerous and punishable with death, and contained no significant liability for attempts. In such a context, a broad felony murder rule could provide an alternative way of seriously punishing failed attempts to commit capital crimes that caused unintended but substantial harm. (16) Yet only the last of these three conditions, the unavailability of serious attempt liability, held in the eighteenth century. Felonies were proliferating, and while they were all potentially punishable by death, most were not actually punished capitally. Perhaps for this reason, no English court ever applied the broad felony murder rule proposed in the eighteenth century. That rule was anachronistic before anyone even proposed it.

Prior to the American Revolution, English courts had gone no further than to impose murder liability on persons who (1) mistakenly killed one person in an attempt to kill or wound another: (2) killed while defending themselves against resistance to a crime: or (3) agreed with others to kill or wound for a criminal purpose, one of whom then killed for that purpose. The distinction between felonies and other offenses was of no particular significance in these cases. In the last decades of the eighteenth century, a few English courts extended accomplice liability for murders committed in the course of crime to those who had agreed only to the crime and not to the fatal wounding. But others disagreed, and this did not become the general rule.

By the time English courts did apply a felony murder rule, in the last half of the nineteenth century, attempts were punishable, felonies were numerous, and only a very few felonies were capitally punishable. Accordingly, the felony murder rule that actually became law in England was much narrower than the one proposed a century and a half before. It did not apply to all felons, and it did not hold felons strictly liable for purely accidental deaths. Instead, English law conditioned felony murder liability on causing death through an act of violence or an act manifestly dangerous to human life, in the perpetration or attempt of a felony. This felony murder rule added little to the traditional rules transferring an intent to kill or wound to unintended victims, barring justification and mitigation for killing persons resisting crime, and attributing a killing to accomplices sharing in a conditional intent to kill or wound. To these categories of murder, England's belated felony murder rule added unintended deaths resulting from acts of indiscriminate destruction like setting fires or exploding bombs. Accomplices in a felony were not liable for a death resulting from that felony unless they intended the dangerous or violent act that produced death. Thus the felony murder rule eventually adopted in England was at least as mild as the "reformed" law of felony murder prevailing in contemporary America. The "common law" was late in developing a felony murder rule, and never held felons strictly liable for causing death accidentally.

The first felony murder rules were enacted not in medieval England, but in nineteenth-century America. They were developed not by common law adjudication but by means of legislation and statutory construction. Beginning in the 1790s, many American legislatures reduced the penalty for most murders to terms of imprisonment, restricting capital punishment to premeditated killings or murders in the attempt of a few enumerated dangerous felonies. These reformers probably understood murder to mean what it had traditionally meant in English law: death from an intentionally inflicted wound or injury. Thus the original significance of a felonious motive in American homicide law was as a circumstance aggravating murder liability. Such felony aggravator provisions were narrow exceptions carved out of reform statutes otherwise mitigating the punishment for murder. Beginning in the 1820s, many American legislatures passed true felony murder statutes, imposing murder liability for all killings in the attempt of certain felonies. Yet the category of killings was probably still understood as including only those deaths traditionally punishable as murder. Beginning in the 1840s, American courts applied both felony aggravator and felony murder statutes to impose murder liability for unintended killings in the course of felonies. American courts appear to have applied felony murder rules earlier and more frequently than their English counterparts.

Yet it is important to remember that American felony murder rules were enacted at different times and varied in content. At the outbreak of the Civil War, roughly half of American jurisdictions had enacted felony murder rules. By the end of the nineteenth century, several jurisdictions still had not adopted felony murder rules, including the federal criminal justice system. This variety reflects the fact that nineteenth-century Americans conceived of criminal law more as democratically enacted positive law than as divinely ordained natural law or historically received customary law. Criminal law was therefore primarily legislative rather than judicial in origin and was jurisdictionally specific. English law did not make the common law of crimes automatically binding on the colonies. Instead, the authority of particular common law rules in particular colonies depended on local reception. Early nineteenth-century Americans rejected the authority of post-Revolution English law and had little enthusiasm for a general American common law of crimes. (17) Thus, in nineteenth-century America, each jurisdiction had the particular criminal laws including the particular homicide laws--it had enacted.

While nineteenth-century American felony murder rules varied, these rules were almost always quite limited in scope. In nineteenth-century America, as in nineteenth-century England, attempts were punishable, felonies were numerous, and penalties for felonies varied from short prison terms to death. So a rule holding all felons strictly liable as murderers for all deaths in the course of all felonies would have been inconsistent with the structure of American criminal codes. Accordingly, most American jurisdictions enacting felony murder rules during the nineteenth century predicated murder liability only on felonies dangerous to life. Nor did they predicate murder merely on causing death during these felonies. Rather, they usually required that felons kill their victims by intentionally battering them or by engaging in some destructive act manifestly dangerous to life, such as deliberately wrecking a train.

This Article reviews statutes and reported case law on felony murder in the federal system and in every state from the Revolution to the end of the nineteenth century. In so doing, it analyzes eighty-five nineteenth-century American felony murder convictions yielding reported opinions. (18) Very few of these cases are likely to trouble modern readers. Nineteenth-century American felony murder convictions typically arose from the intentional shooting of a robbery victim. Often, the killing would have been murder anyway, and was aggravated to murder in the first degree because it was committed in furtherance of a particularly dangerous felony.

In a handful of nineteenth-century American cases, felony murder liability was imposed for killings which most modern observers would probably grade as lesser forms of homicide. These few convictions were predicated on such dubious "felonies" as riot, consensual abortion, and suicide. It is tempting for critics to make these few cases poster children in the campaign against the felony murder rule. But such a polemical use of these cases effaces the federal structure of the American polity and the statutory basis of American criminal law. There was no unitary felony murder rule in nineteenth-century America. Instead there was a range of different rules, some better and some worse. But most of these rules were limited in scope and were applied fairly. The few exceptions are just that. They are not evidence of the common descent of all felony murder rules from a barbaric rule of strict liability for all deaths in the course of all felonies.

One difficulty in assessing claims that early felony murder rules did or did not impose strict liability for accidental death is that strict liability is an "essentially contested concept." (19) Ken Simons and Mark Kehnan have both usefully explained the concept's ambiguity. (20)

Simons contrasts "substantive" strict liability with two kinds of "formal" strict liability. Substantive strict liability is a moral notion meaning liability without fault. By contrast, formal strict liability is a technical concept, depending on the practice of element analysis, particularly as employed in the Model Penal Code. (21) This practice first divides the act element of an offense into constituent acts or omissions, circumstances, and results: and then correlates each of these conduct, circumstance, or result elements with a required culpable mental state, such as purpose or recklessness. An offense is one of "pure" strict liability if it requires no culpable mental state with respect to any of the constituent elements making up the proscribed act. An "impure" strict liability offense requires no culpability with respect to at least one of these act elements. The Model Penal Code treats even impure strict liability as strict liability and rejects it for all felonies and misdemeanors. (22) According to the Model Penal Code's scheme, the offense of "foreseeably causing death" is not a strict liability crime, because it requires a culpable mental state-negligence--with respect to the offense's only act element. On the other hand, the offense of "causing death by means of maiming with the intent to torture" is strict liability, because it requires no culpable mental state with respect to one actus reus element, causing death. The second crime may involve more culpability than the first, and is not substantively a strict liability crime. Nevertheless, formally, it is a crime of impure strict liability, barred by the Model Penal Code's scheme.

Simons and Kelman have both argued that there is no necessary correlation between impure strict liability and substantive strict liability. A legislature can discourage the negligent causation of harm through at least three means: (1) punishing those who foreseeably cause harm; (2) "strictly" punishing those who cause harm by knowingly committing designated dangerous acts: or (3) punishing those who knowingly commit designated dangerous acts whether or not these result in harm. The second alternative is an example of impure strict liability, but Kelman argues it should be seen as a per se negligence rule that achieves the same aims the first alternative achieves by the alternative means of a discretionary negligence standard. (23) The third alternative eliminates the second alternative's impure strict liability yet still punishes everyone punished by the second alternative. (24)

So there are three difficulties with equating formal impure strict liability with substantive strict liability. First, some acts may imply culpability with respect to a result element that has no explicit culpability attached. For example, arson may imply reckless disregard of a risk of death. Depending on how we define "killing" and "causing death," these acts may themselves imply culpability with respect to death. Thus, if killing means only causing death by certain dangerous means, killing involves culpability per se. If "causing" a result means foreseeably bringing it about, it entails culpability with respect to that result. Second, some culpable mental states may imply, but not explicitly require, culpability with respect to a result element. Thus, the intent to inflict grievous bodily injury implies recklessness with respect to death. Third, an offense definition may require no culpable mental state with respect to one element, but require very severe culpability with respect to some other element, or an inchoate element. Thus, causing grievous injury with the intent to rape may be as culpable a form of assault as intentionally causing grievous injury. Similarly, causing death with intent to rape may be as culpable a form of homicide as recklessly causing death. For these three reasons, a felony murder rule may involve formal impure strict liability without substantive strict liability.

This Article argues that early felony murder rules almost always conditioned murder liability on causing death with fault, even if they did not explicitly require proof of a culpable mental state with respect to death. Generally they predicated murder liability on dangerous felonies or means of causing death that implied negligence or recklessness per se. Early felony murder liability combined this culpability with respect to death with a depraved motive. It certainly did not punish felons for "accidental" death. A robber pointing a loaded gun at an unpredictable victim may not wish to kill anyone. A rapist may wish only to silence his child victim by choking her. Nevertheless, the resulting deaths are hardly accidental. Accordingly. it is deeply misleading to say that early felony murder rules imposed strict liability. It is flat wrong to say that they imposed strict liability for accidental death in the course of all felonies.

By mislabeling this unenacted doctrine as the "common law rule," legal writers falsely imply that it expresses the essential normative premises underlying the far different rules actually enacted. (25) They also imply that this harsh doctrine remains a legally binding default rule, authoritative in every American jurisdiction unless explicitly altered by legislatures or courts. Thus, in their determination to condemn modern felony murder rules as barbaric anachronisms, legal scholars actually mislead courts about the source and scope of those rules. By mischaracterizing the origins of American felony murder rules, legal scholars may actually contribute to broadening the very rules they inveigh against. In this way, the critics' cherished myth of a monstrous "common law felony murder rule" threatens to become a self-fulfilling prophecy.

This Article's revisionist account of the origins of American felony murder rules is significant in four ways. First, dispelling the myth of the common law felony murder rule should improve interpretation of murder provisions in modern criminal codes. These provisions should not be seen as incorporating by reference a common law felony murder rule that never existed. They also should not be presumed to impose strict liability for all deaths caused in the course of all felonies. Courts should impose felony murder rules only on the basis of statutory authorization. Furthermore, they should limit these felony murder rules on the basis of statutory language, whether contained in the provisions defining murder or in general code provisions defining the code's purposes and rules of construction. (26) Each felony murder rule should be construed and applied on its own terms, and not treated as an expression of some pervasive common law principle.

Second, clarifying the statutory basis, the independence, and the limited scope of felony murder rules should discourage lazy, broad-brush criticism of felony murder liability. Critics must acknowledge that "the" felony murder rule was never anything harsher or more punitive or more categorical than the particular felony murder rules enacted in each American jurisdiction. They must stop mischaracterizing contemporary felony murder rules as vestiges of a now-discredited common law rule. The limited felony murder rules prevailing today are not reformist compromises between an original strict liability rule and an enlightened modern conception of murder as intentional killing. Felony murder rules are themselves modern, a product of the nineteenth-century legislative effort to define and codify the various mental elements of murder. Critics of modern felony murder rules must stop trying to prove them guilty by association with a monstrous but entirely mythical ancestor.

Third, recovering the conceptions of culpability underlying nineteenth-century felony murder rules can enrich contemporary accounts of culpability across the criminal law. The Model Penal Code's scheme of element analysis represents an ambitious, but not entirely successful, effort to translate the question of culpability into a scale quantifying awareness of risk. This primarily cognitive model of culpability has been much criticized for evading the moral evaluation of motive. (27) Early felony murder rules reflected an effort to integrate the moral assessment of motive into a more eclectic conception of culpability.

Fourth, exposing the myth of the common law felony murder rule dramatizes a larger issue in the theory, practice, and teaching of American criminal law. The myth of the common law felony murder rule is part of fine larger mythology of the common law of crimes. Even though early nineteenth-century Americans had rejected the idea of a unitary national criminal law rooted in natural law principles, late nineteenth-century criminal law scholars resurrected this idea so as to claim for their work a national scope and a national audience. Clark and Marshall's discussion of the felony murder rule illustrates this pattern of thinking, according to which American criminal law was founded on the common law, which only legislatures could alter. Thus conceived, the common law was a body of unchanging principle which judges found rather than made. Since the common law component of criminal law was unchanging, it necessarily remained identical in every jurisdiction. This meant that divergent decisions in the different states reflected disagreement about a common national law of crimes rather than different laws. This gave legal scholars a role in researching and explaining the unchanging common law as well as collating and reconciling American cases from all the jurisdictions. It also gave the emerging professoriate a subject that could be taught in the same way at any law school in the country. To this day, student texts and treatises organize the subject of criminal law by describing the common law of crimes as expounded by Blackstone, perhaps comparing it with the "reforms" proposed in the Model Penal Code. In so doing, they train future lawyers in a mythical body of law with no determinate source or jurisdictional domain. Exposing the myth of the common law felony murder rule is part of the larger project of debunking this mythology of a general American criminal law and rebuilding criminal law teaching and scholarship on a statutory foundation.

This Article is divided into seven Parts. Part I reviews the development of homicide law in England up to the end of the eighteenth century, demonstrating the absence of a common law felony murder rule at the time of the American Revolution. Part II reviews subsequent English developments, showing that apart from a few isolated cases on accessorial liability--a common law felony murder rule did not emerge until the second half of the nineteenth century, and that this belated rule was predicated on violent or dangerous acts from its inception.

Parts III and IV demonstrate the absence of a common law felony murder rule in colonial and nineteenth-century America. Part III contests the myth of American reception of the English common law of crimes. First, it reveals the limited applicability of English law in the American colonies. Next, it describes the simple murder statutes enacted during the colonial period, which left the definition of murder to judicial development, but were not, so far as we know, used to impose felony murder liability. It then reviews post-Revolution ideas about the reception of the common law, particularly in the area of criminal law. It shows that early Americans were ambivalent about receiving English law, and generally received it only as locally applied. As a result, each American jurisdiction had to develop its own common law, adapted to local circumstances and restitutions. In addition, early Americans were critical of English homicide law and feared judicial definition of crimes. As a consequence, many Americans called for legislative codification of criminal law. Finally, Part III describes the emergence during the antebellum period of two main legislative approaches to the problem of homicide in the course of crime: felony aggravator statutes and felony murder statutes.

Part IV addresses the American law of homicide in the course of crime in those times and places where there was no legislation on the subject. This includes the federal criminal jurisdiction throughout the nineteenth century, and most of the original states for parts of the nineteenth century. Part IV first reviews American scholarly writings on homicide in the course of crime. This literature reveals critical reflection on the supposedly traditional felony murder rule rather than simple acceptance. Early nineteenth-century American scholars understood felony murder liability as a form of transferred intent, justified only where the predicate felonies were as malicious as murder itself. Late nineteenth-century scholars followed English reformers in seeing felony murder liability as a form of reckless homicide liability, justifiable only to the extent that commission of the predicate felony showed indifference to human life. Judicial readers of this literature would have been alerted that developing and applying a felony murder rule was no simple task. Part IV then demonstrates that most American courts declined to take on this difficult task until it was imposed upon them by legislatures. So far as we know, no court convicted anyone of felony murder on the basis of a common law felony murder rule alone until very late in the nineteenth century. Even then, such cases were rare.

Paris V and VI turn to the judicial application of the two leading forms of American legislation on homicide in the course of crime. They show that on the basis of such statutes, felony murder liability was imposed increasingly often in late nineteenth-century America. Part V examines the application of felony aggravator statutes, which graded a murder as first degree if it was committed in the course of enumerated felonies. This discussion demonstrates that while courts sometimes cited common law authorities in support of felony murder rules, they usually relied on statutory language; and that they usually confined felony murder liability to killings in the course of felonies enumerated by statute. This pattern suggests both the statutory basis of felony murder liability and its limitation to acts imposing a substantial and apparent danger of death.

Part VI examines statutes directly imposing felony murder liability and their application in the courts. It shows that these felony murder statutes account for the majority of reported felony murder convictions in nineteenth-century America. It also shows that successful prosecutions under these statutes were generally confined to situations in which an intentional battery or an act otherwise clearly dangerous to human life was performed in the course of a dangerous felony.

Part VII traces overall patterns of the imposition of felony murder liability in the nineteenth-century United States. It shows that most American jurisdictions confined felony murder liability to killings in the course of dangerous felonies. It also shows that another important constraint on nineteenth-century American felony murder liability was a traditionally restrictive conception of killing that, in effect, built culpability into the act element of murder.

The Conclusion reiterates that felony murder liability was probably first imposed in nineteenth-century America rather than England, on the basis of statutes rather than the common law: and that from its inception felony murder usually required a dangerous predicate felony and a violent or dangerous act causing death. The Conclusion suggests that because of sweeping changes in the doctrinal context of homicide law, rules of felony murder liability enacted in nineteenth-century America bear little resemblance to the rules of felony murder liability proposed in seventeenth- and eighteenth-century England. Felony murder liability was first proposed for a criminal justice system without attempt liability, and without an elaborate practice of grading crimes according to different levels of punishability. In this context, a felony murder rule offered to (1) severely punish attempted felonies which caused death, and (2) bar the defenses of provocation and self-defense for killings of those who resisted felonies, while leaving little affected the status of offenders who successfully completed felonies. In nineteenth-century America, however, legislatures sought to define and grade a wide variety of offenses along a scale of punitive severity. In this context, felony murder liability remained a useful method of barring the provocation defense for fatal struggles arising in the context of serious crimes, but was no longer needed as a substitute for attempt liability. On the other hand, certain felonious motives now seemed to offer sensible grounds for aggravating liability for unintended homicide resulting from the imposition of unjustified risk. The felony murder rules enacted in nineteenth-century America were not anachronistic vestiges of ancient rules, however, because the felony murder rules first proposed in England were never enacted into law, there or here. America's original felony murder rules were modern products of an era of legislative codification, limited by plausible conceptions of culpability from their very inception.


A. Homicide in the Course of Crime in Early English Law

The principle that an actor is responsible for the unintended harms resulting from an unlawful act is ancient, with roots in Christian ethics and canon law. (28) Augustine wrote, "Accidents which, without our will, happen to others through good and lawful actions of ours, or possessions, must not be imputed to us." (29) This formulation implies that accidental harms arising from wrongful acts may be imputed to us. In the midthirteenth century, Aquinas seized on this implication in trying to reconcile Augustine's statement with canon law sources that seemed to treat accidental killings as homicides. (30) He wrote:

  [A]ccidental happenings are neither intended nor voluntary. And 
   because every sin is, as Augustine says, voluntary, it follows that 
   accidents as such cannot constitute sins. What is not willed or 
   intended as such may nevertheless be incidentally willed or 
   intended. We may incidentally cause something by removing the 
   obstacle against that thing happening. It follows that somebody who 
   does not remove such occasions of homicide as he could and should 
   remove will in some way be guilty of voluntary homicide. 
  This can come about in two ways--when a person engages in 
   nefarious activities which he should not have engaged in, or when he 
   does not take due care. This is why the [canon] law lays down that 
   if a man engages in legitimate activities and uses due care, he is 
   not guilty of any homicide that may ensue; if, on the other hand, he 
   engages in illicit activities, or even fails to take due care in 
   some legitimate enterprise, he is guilty of any homicide that may 
   occur. (31) 

Aquinas cites the decretals of Gregory in support of his rule that death resulting from an unlawful act, or tack of due care, is homicide. (32)

This principle is not a felony murder rule: it neither distinguishes felonies from other unlawful acts, nor does it distinguish murders from lesser homicides. Nor is it clear that it entails criminal liability for harm arising from a delict. The canon law system was concerned primarily with penance for sin and fitness for clerical office. (33) Neither of these concerns necessarily required allocating responsibility for harmful consequences. (34) Finally, it is not clear that Aquinas was proposing a principle of strict liability for imputing harm to an unlawful actor: he seemed to condition such imputation on "intending" harm "incidentally" by failing to take precautions against it. Possibly Aquinas assumed that all action imposes risk, which only a worthy aim can justify. In this case, any unlawful act imposes risk unjustifiably and is negligent per se.

Canon law apparently influenced the practice and theory of English criminal law in the later Middle Ages. Manuals written to guide English clergy in administering penance for sin instructed them that accidental killings were blameless. Consistent with such ideas, some thirteenth-century juries tried to induce the Crown to pardon homicides by describing them as resulting from misdirected attacks on animals. (35)

The English jurist and cleric Bracton, writing around the same time as Aquinas, applied canon law ideas to the crime of homicide. (36) Bracton held that accidental killing was no homicide "because a crime is not committed unless the intention to injure exists" and "[i]n crimes the intention is regarded, not the result." (37) Bracton included within intention what we would call motive. Thus, even a legally mandated execution could become a criminal homicide "if done out of malice or from pleasure in the shedding of human blood." (38) In discussing homicide "[b]y chance, as by misadventure, when one throws a stone at a bird ... and another passing by unexpectedly is struck and dies," Bracton wrote:

   But here we must distinguish whether he has been engaged in a proper 
   or an improper act. Improper, as where one has thrown a stone toward 
   a place where men are accustomed to pass, or while one is chasing a 
   horse or ox someone is trampled by the horse or ox and the like, 
   here liability is imputed to him. But if he was engaged in a lawful 
   act, as where a master has flogged a pupil as a disciplinary 
   measure, or ... cutting down a tree and the like, and if he employed 
   all the care he could ... in the case of the master by not exceeding 
   mean and measure in the flogging of his pupil, liability is not 
   imputed to him. But if he was engaged in a lawful act and did not 
   employ due care, liability will be attributed to him. (39) 

Bracton apparently based this discussion on Raymond de Penafort's penitential manual, Summa de Poenitentia. (40) While Penafort's version of the case of "chasing" a horse or ox involved an attempt to steal it, (41) Bracton avoided specifying this feature of the situation, leaving the impression that the act is improper merely because it is incautious. Thus, for Bracton, unlawful acts encompassed primarily acts done without due care. When such acts resulted in unintended deaths, Bracton held, the perpetrator was guilty of homicide, and should not be pardoned. (42)

Making sense of Bracton's position requires grasping the significance of a verdict of death by misadventure. Until the middle of the twelfth century, accidental killings and killings in open conflict were resolved through compensation to kin and king, while only stealthy killings were "unemendable" and so subject to capital punishment. (43) In the middle of the twelfth century, however, the royal courts took jurisdiction over all homicides as breaches of the king's peace. All homicides, whether or not previously emendable, became capital offenses unless justified as an act of law enforcement or pardoned by the king. (44) In the thirteenth century, accidental and defensive killings were not considered entirely innocent, but merely eligible for a royal pardon, for which the defendant would often have to pay. (45) By the Statutes of Gloucester of 1278, a verdict of death by misadventure or of self-defense qualified the defendant for a royal pardon, but such verdicts were not acquittals. (46) Nor did a verdict of misadventure necessarily imply moral innocence: "accidental" deaths included all deaths caused unintentionally, including those caused recklessly and negligently. (47) In general, royal pardons might be granted on other grounds than moral innocence, and their sale to the guilty became a source of royal revenue in the decades after Bracton wrote. (48) Bracton may be read as saying that a criminal motive for imposing risk should bar a pardon for an unintended but nevertheless careless killing.

In fourteenth-century England, robberies and ambushes by armed bands became frequent, and complaints were heard that royal pardons were being too frequently bestowed. (49) A 1390 statute provided that pardons would not be granted lightly to those committing "murders," killings by ambush or assault, and killings with "malice prepensed." (50) At least one historian has argued that the latter referred simply to homicides that were neither accidental nor justifiable, while "murder" referred to stealthy killings. (51) The category of killing by assault or ambush reflected contemporaneous concern about robberies and other armed attacks on the highways. (52) While the statute distinguished stealthy murder, killing in the course of crime, and killing with malice aforethought as separate categories, little turned on these distinctions. All three forms of homicide were equally felonious and, as such, all were capital crimes, (53) unless committed by a cleric, who would have been subject to ecclesiastical jurisdiction. Such "benefit of clergy" became an increasingly important exception, however, as it was eventually made available to any male who could pass a literacy test. (54)

B. Distinguishing Murder and Manslaughter in Sixteenth-Century England

By the end of the fifteenth century, the association of murder with stealth had been forgotten, and the term was probably interchangeable with felonious homicide. (55) In 1496, however, benefit of clergy was withdrawn for the crime of petty treason, defined as "purpensidly murder[ing]" one's "Lord Maister or Soveign immediate." (56) Additional statutes further restricted benefit of clergy, and by the middle of the sixteenth century, all murders "of malice prepensed" were no longer clergyable. (57) During the same period, judges and juristic writers proposed a distinction between nonclergyable murder, characterized by "malice prepense," and a residual category of clergyable homicides, referred to as "manslaughter," involving killing by "chance-medley." (58) What meaning attached to "malice prepense" and "chance-medley" was not yet clear. In particular, it was not clear whether killing by "chance-medley" meant accidental killing or an unplanned killing resulting from a chance meeting.

Two important sixteenth-century cases explored the boundaries of malice for homicides committed in the course of crime. In the 1535 case known as Lord Dacres's Case, (59) a group resolved to enter a park and poach game, and to kill anyone who resisted them. When one member of this group killed a gamekeeper, all the rest were held liable, whether or not physically present at the scene of the killing. The decision's innovation lay in its expansion of accessorial liability rather than its expansion of malice. Since all the participants had agreed to the killing, their malice prepense consisted in their intent to kill rather than in their intent to commit an unlawful act. While Lord Dacres did not expand the notion of malice prepense beyond intent to kill, it was important to the reasoning of another sixteenth-century case which did.

This pivotal case was decided in 1558, and resulted from an attack upon the house of Sir Richard Mansfield by a gang of ruffians under the command of one George Herbert. (60) A servant of Herbert's threw a stone at a member of Mansfield's party, but accidentally struck and killed a bystander. A majority held that Herbert and his men were guilty of murder, on the basis of three premises. First, Lord Dacres had established that all who agree to kill anyone resisting an unlawful act are guilty of the killing of a resister by any of those who agreed. Second, the majority reasoned, it was settled law that one who caused the death of a person in an attempt merely to hurt or injure him was guilty of murder. (61) Third, the judges asserted, an unsuccessful attempt to kill one person that resulted in the unintended death of another should be viewed as murder. This transferred-intent principle would later be confirmed by the 1573 murder conviction of one Saunders, whose daughter ate a poisoned apple he had prepared for his wife. (62)

From these three premises, it seemed to follow that anyone who agreed to an act of violence was liable for the murder of any person killed as a result. The "malice" shown toward the intended victims of a violent assault would transfer to the death of the unintended victim. This principle predicates murder on participation in an act of violence rather than a felony per se. A substantial minority, including Judges Brooke and Staundford, held that Herbert and his men were guilty only of manslaughter because the actual victim was not one of the intended victims of the violent acts agreed to. The minority viewed the killing of such an unintended victim in the course of an unlawful act as an example of chance-medley. (63)

A rather different view of the distinction between malicious murder and manslaughter was propounded in the 1553 case of R. v. Salisbury. (64) Richard Salisbury and two conspirators ambushed Richard Ellis and killed one of his servants. Salisbury's servant (who was not one of the conspirators) came to Salisbury's aid during the fight and wounded the man who died. The jury was instructed that Salisbury's servant should be convicted of murder only if he had acted with malice prepense. The jury apparently concluded that Salisbury's servant had neither known of the planned ambush on Ellis nor premeditated his attack on the dead man. They convicted Salisbury and his confederates of murder, but convicted Salisbury's servant only of manslaughter. (65) This identification of malice prepense with premeditation was confirmed in the 1576 case of R. v. Robinson, where the defendant was convicted only of manslaughter rather than murder, when he pursued and killed his fleeing victim "in un continuing fury" after they had gotten into a sudden fight. (66) William Lambarde wrote in his late sixteenth-century treatise Eirenarcha that a killing occurring suddenly upon an unexpected meeting would be manslaughter, because in such a case "men are medled ... by meere chaunce, and upon some unlooked for occasion, without any former malice or evil mind ... to offer hurt to the person of the other." (67)

Lambarde also offered a discussion of implied malice, which could be imputed to those who drew a weapon and attacked without provocation, who killed an officer of the law, or who caused death in the course of certain unlawful acts. Thus:

   [I]t is taken for a rule ... that wheresoever a man goeth about an 
   unlawfull acte, as to beate a man, or to disseize him of his lands, 
   &c., and doe (in that attempt) kill him, it is Murder: because the 
   lawe presupposeth that he carieth that malicious mind with him, 
   that he will achieve his purpose though it be with the death of him 
   against whom it is directed. And therefore, if a thiefe doe kill a 
   man whom he never saw before, and whom he intended to rob onely, it 
   is Murder in the judgemet of law, which supplieth a former malicious 
   disposition in him rather to kill the man, then not to have his 
   money from him. (68) 

Lambarde's reasoning leaves the reader uncertain whether he is proposing a formal rule of liability or an evidentiary maxim. Robbery, he implies, is a rational motive for murder, and so provides evidence of a premeditated intent to kill. A use of deadly force to violate another's entitlement (a project likely to provoke resistance) suggests a previously established willingness to kill if necessary. Perhaps the unlawful aim does not substitute for malice prepense, but supplies evidence of it. In any case, it is important to realize that Lambarde's discussion of implied malice is not concerned with accidental killing, but with intentional killing. The dispute provoked by a robbery was not to be treated as a chance or sudden quarrel, justifying a partial defense of provocation. Justified resistance to a violent attack could not be considered provocation, and so it was fair to treat violence used to overcome justified resistance as premeditated.

The results in Herbert and Saunders, which punish unintended killings as murder, seem at odds with the results in Salisbury and Robinson, which punish intentional but unpremeditated killings as mere manslaughters. This contradiction reflected the tension between the old meaning of malice prepense as any evil intent and the new identification of this phrase with premeditation. This tension left a legacy of confusion regarding the meaning of malice and provoked a new distinction between express and implied malice. Courts and commentators said the law would "imply" malice prepense when there was an armed attack with no evidence of a quarrel, when the victim was an officer of the law making an arrest, and in cases like Herbert and Saunders.

Yet the murder convictions in cases like Herbert and Saunders are reconcilable with the new requirement of premeditation if we bear in mind the roots of the law of murder in the fourteenth century's efforts to suppress organized criminal violence. Both Herbert and Saunders killed unintended victims. Yet both of these accidental deaths resulted foreseeably from the defendants' premeditated acts of criminal violence. The same principle explains Richard Salisbury's murder liability for the death of a servant whose presence he may not have anticipated when he planned to ambush Ellis. The cases all express an association of malice with a planned, perhaps instrumental use of violence, rather than a sudden loss of temper in the course of an unexpected quarrel. (69)

C. Rejecting an Unlawful Act Murder Rule in Seventeenth-Century England

Francis Bacon's Elements of the Common Law used Saunders to support a maxim that intent could be transferred among crimes of like gravity. (70) Bacon reasoned that

  All crimes have their conception in a corrupt intent, and have 
   their consummation and issuing in some particular fact; which though 
   it be not the fact at the which the intention of the malefactor 
   levelled, yet the law giveth him no advantage of the error, if 
   another particular ensue of as high a nature. 
  Therefore if an impoisoned apple be laid in a place to impoison 
   I.S. and I.D. cometh by chance and eateth it, this is murder in the 
   principal that is actor, and yet the malice in individuo was not 
   against I.D. (71) 

Saunders, and another case involving burglary, suggest that Bacon is merely transferring intent among alternative cases of the same crime. But he also asserts that intent can transfer from murder to suicide, while questioning whether intent can transfer from a murder to a petty treason. (72) The suicide example suggests that intent can transfer among different offenses of similar kind, while the petty treason example suggests that what makes two offenses of equal gravity might be their legal form (misdemeanor, felony, treason) rather than their maliciousness. Of course, petty treason might be seen as more malicious than murder because of the additional element of betrayal. While Bacon's discussion is an early precursor of the ideas of general intent and the notion of the transferrability of intent among all felonies, it does not appear to have influenced subsequent common law commentators.

In 1619, Michael Dalton stated the general proposition that accidental killing in the course of an unlawful act was felonious: "But if a man be doing of an unlawfull act, though without any evill intent, and he happeneth, by chance, to kill a man, this is felony, viz. manslaughter at the least, if not murder, in regard the thing hee was doing, was unlawful." (73) Dalton added that if a man unlawfully threw a stone at an animal and thereby killed a man, it would be manslaughter only. (74) On the other hand, killing resulting from an unlawful beating would be murder: "[W]here a man commandeth another to beat A. and hee beateth him, so as A. dieth thereof, this is murder in him that gave this commandement to beat him, for that he commaunded him to doe an unlawfull act, by reason whereof the killing of a man ensued." (75) Similarly, "if a Theefe that offereth to robbe a true man, killeth the true man in resisting him, it is Murder, of malice pretended." (76) Thus, one who caused death in the course of an unlawful act might be guilty of manslaughter or murder, depending on the nature of the unlawful act. In Dalton's scheme, only unlawful acts of violence implied malice.

Edward Coke adopted what appeared to be a much harsher approach to unlawful act killing in his 1628 Institutes of the Law of England. (77) Yet Coke never mentioned the new statutory distinction between clergyable and nonclergyable offenses and so ignored the whole question of which homicides were clergyable. As a result, his terminology is so confusing that it is not clear exactly what he was trying to say about killings in the course of crime. Consider first his use of manslaughter, in his chapter on homicide:

   [T]he right division of homicide is: that of homicides, or 
   manslaughter, some be voluntary, and of malice forethought; 
   as petit treason, and murder of another, and murder of himself.... 
   Of manslaughters, some be voluntary, and not of malice 
   forethought: of these some be felony ... and some be no felony.... 
   And lastly, some homicides, that be no felony, be neither 
   forethought, nor voluntary; as manslaughter by misadventure, per 
   infortunium, or casu. (78) 

Coke here treated manslaughter and homicide as interchangeable, encompassing murder, clergyable felony, and nonfelonious misadventure. A few paragraphs later he wrote:

   Some manslaughters be voluntary, and not of malice forethought, 
   upon some sudden falling out.... And this for distinction sake 
   is called manslaughter. There is no difference between murder, 
   and manslaughter; but that the one is upon malice forethought, 
   and the other upon a sudden occasion: and therefore is called 
   chance-medley. (79) 

Thus Coke had no general term to designate clergyable felonious homicides, "manslaughter" being too broad and "chance-medley" being too narrow. Indeed, he does not identify any cases of felonious homicide that are neither murder nor chance-medley.

Coke's discussion of murder is equally confusing. In his chapter on murder, Coke defined that crime as unlawful killing with malice forethought, express or implied. (80) This definition hinted, but did not explicitly state, that all murder should be nonclergyable because it was based upon malice prepense. Coke defined express malice as the intent to "kill, wound, or beat" (81) and repeated Lambarde's example of killing in the course of robbery as one illustration of implied malice. (82) As George Fletcher comments, "the point of Coke's holding that this case was one of implied malice was to make it clear that provocation could not be a defense on behalf of someone whose robbery induced the victim's provocative act." (83) In his chapter on homicide, Coke initially reiterated the connection of murder with malice aforethought. But then he offered a puzzling discussion of unlawful act killing in which he characterized it paradoxically as murder, albeit without malice prepense:

  There is an homicide, that is neither forethought, nor 
   voluntary. As if a man kill another per infortunium, seu casu, 
   that is homicide by misadventure.... Homicide by misadventure, 
   is when a man doth an act, that is not unlawfull, which without 
   any evill intent tendeth to a man's death. 
  Unlawfull.] If the act be unlawful it is murder. As if A. 
   meaning to steal a deere in the park of B., shooteth at the deer, 
   and by the glance of the arrow killeth a boy that is hidden in a 
   bush: this is murder, for that the act was unlawfull, although A. 
   had no intent to hurt the boy, nor knew not of him. Bu if B. the 
   owner of the park had shot at his own deer, and without any ill 
   intent had killed the boy by the glance of his arrow, this had 
   been homicide by misadventure, and no felony. 
  So if one shoot at any wild fowle upon a tree, and the arrow 
   killeth any reasonable creature afar off, without any evill intent 
   in him, this is per infortunium: for it was not unlawful to shoot 
   at the wilde fowle; but if he had shot at a cock or hen, or any tame 
   fowle of another mans, and the arrow by mischance had killed a man, 
   this had been murder, for the act was unlawfull. 
  Without any evil intent.] If a man knowing that many people come 
   in the street from a sermon, throw a stone over a wall, intending 
   only to feare them, or to give them a light hurt, and thereupon one 
   is killed, this is murder; for he had an ill intent, though that 
   intent extended not to death.... (84) 

For Coke, then, unlawfulness or an "evil intent" could apparently substitute for malice aforethought in qualifying a killing as murder. Coke did not treat these scenarios as instances of implied malice. But neither did he classify any killings involving unlawful acts or culpable mental states as manslaughter or chance-medley. At least one commentator has suggested that the clumsiness of Coke's terminology may have caused him to say more than he meant. According to David Lanham,

   The message that Coke was evidently trying to convey was that if 
   there was an unintentional killing in the course of an unlawful 
   act the killing would be felonious. The appropriate word would 
   have been "manslaughter" but unfortunately Coke had precluded 
   himself from using that word by holding that some manslaughters 
   were not felonious. (85) 

In other words, Coke may have characterized unlawful act killing as "murder" for want of a better general term for felonious homicide. By specifying that such "murders" were without malice prepense, Coke may have meant to exclude them from the class of nonclergyable homicides, if he thought about this issue at all. Thus, it is likely that Coke did not mean to characterize accidental killings in the course of unlawful acts as murder in the technical sense. After all, "murder" referred simply to atrocious killings in ordinary speech, and it was only murders with malice prepense that were excluded from benefit of clergy by statute. Thus, in characterizing unlawful act killings as murders without malice, Coke may have meant to treat them as felonious, but nevertheless clergyable, homicides.

Fletcher argues that Coke's whole discussion of unlawful act killing was an anachronism, reflecting the law of homicide before development of the doctrine that murders with malice prepense were nonclergyable. On this interpretation, Coke was simply expressing a traditional view that the unlawfulness of an act causing death would deprive the defendant of the excuse of accident, or per infortunium. The unlawfulness of the act causing death meant the prosecution's prima facie proof of felonious homicide remained undisturbed. (86) According to Fletcher, this doctrine preceded and had nothing to do with the later doctrine that felonious homicides committed with malice prepense were nonclergyable. (87) Fletcher argues that Coke clearly did not regard the unlawful act as a source of or substitute for malice prepense:

  It is significant that in picking an example of an unlawful act, 
   Coke tamed away from arson, robbery, and the dangerous felonies and 
   instead picked the homely example of shooting a deer in the park 
   belonging to another.... 
  It is abundantly clear from the text that Coke did not think of 
   the "unlawful act" doctrine as a basis for establishing malice, 
   expressed, implied, or any other variety. If he had been so 
   concerned, he would have framed an example of killing in the 
   course of a dangerous felony. In the section on malice, he does 
   refer to a robber's killing a victim who resists as an example 
   of implied malice. Yet this inference of malice is in no way formal 
   or constructive, and there is no intimation that Coke sees a 
   connection between the robber's killing a resisting victim and the 
   doctrine of the unlawful act as a basis for denying the 
   applicability of per infortunium as an excuse. (88) 

Fletcher's argument that Coke wrote in an anachronistic idiom is supported by Coke's citations, which were all to sources preceding the sixteenth century. Coke obviously offered his examples of shooting a deer or a bird in order to echo Bracton's discussion of throwing a stone at a bird, which Coke cited. (89) Yet Bracton merely ascribed liability to one who kills accidentally in an unlawful act, not murder liability or capital punishability. (90) Coke also cited three yearbook cases. Two of these simply confirm that in the late Middle Ages, accidental killers were considered liable for homicide until they received their inevitable pardons. (91) The third, dating from 1496, says that it is a felony to kill another in consensual combat (a duel or joust), unless the combat was at the king's command, and that it is felony to kill with the intention merely of beating. (92) Both of these hypothetical killings meet Coke's test for express malice (the intent to kill, injure, or beat). Hence the jousting case does not show that an unlawful act can substitute for malice. As of 1496 there was not yet any distinct offense of murder, since all felonious homicides were still clergyable, while the category of felonious homicides included killings that would later be called manslaughters. Coke's reliance on this case supports Lanham's suggestion that Coke was using "murder" in a nontechnical sense, to mean only felonious homicide. James Fitzjames Stephen scoffed that Coke's discussion of unlawful act killings is "entirely unwarranted by the authorities which he quotes." (93) This condemnation is fair if we take Coke to be staking out the extreme proposition that killing accidentally in the course of any unlawful act is nonclergyable murder with malice prepense. But Coke's authorities accord much better with the limited position Lanham and Fletcher attribute to him: that while killing accidentally in the course of a lawful act is excusable as death by misadventure, killing in the course of an unlawful act is not excusable, and is therefore (clergyable) felonious homicide. In sum, it seems most unlikely that Coke intended to say that deaths resulting from unlawful acts were malicious and therefore nonclergyable murders.

In any case, no such rule ever achieved legal authority in England. Two cases decided during the course of the seventeenth century squarely rejected the concept of unlawful act murder. In a 1647 case, Sir John Chichester was fencing with his servant with covered swords, apparently illegally. Unbeknownst to the fencers, the cover of Chichester's sword fell off and he struck his servant a fatal blow. The unlawful act murder rule later attributed to Coke would have made this accident a murder. The court held it manslaughter because the servant's death, while resulting from an unlawful act, came with no intent to harm. (94) In a 1664 case, the defendant, Hull, shouted a warning and then threw a piece of lumber off a roof, killing a fellow workman below. While Hull was indicted for murder, all the judges agreed that if he had acted with unlawful carelessness, he would be liable for manslaughter only (a majority found him innocent of any wrongdoing, however). (95)

The 1663 case of Sir Charles Stanley does offer support for some form of unlawful act homicide rule. (96) Stanley resisted arrest by firing a pistol at the arresting bailiff. Servants of both antagonists joined the fray, and some of Stanley's servants ultimately killed a servant of the bailiff's. Stanley was deemed guilty of this murder because of his initial act of violence, a result consistent with Herbert. Yet some of the language suggests a rule broader than the result: "[W]hen several men joyn in an unlawful act they are all guilty of whatever happens upon it; as in The Lord Dacre's case...." (97) This is only, by its terms, an unlawful act homicide rule, making the participants criminally responsible for death resulting from an unlawful act, but not necessarily grading it as murder. In Lord Dacres the liability was murder, but that was because the unlawful acts joined in included a contingency plan to kill all opposers. A later discussion in Stanley suggests that unlawfulness has two effects: to render one negligently culpable for causing a result and to "imply" malice where an intentional act of violence is provoked or unpremeditated. The justices agree that one who, coming upon the scene of an arrest, draws his sword against the arresting officers is guilty of murder if an officer is killed, even if he did not understand he was interfering with an arrest:

   For a man must take heed how he joineth in any unlawful act as 
   fighting is, for if he doth, he is guilty of all that follows. 
   And it being murder to kill those who come to execute the law; 
   every one who joins in that act is guilty of murder, and his 
   ignorance will not excuse him, where the fact is made murder by the 
   law without any malice precedent, as in the case of killing a 
   bailiff. (98) 

So here we have an unlawful act of fighting creating a negligent culpability for impeding an arrest; resistance of an arrest implying malice for an intentional, but provoked or sudden, killing; and an assault with a lethal weapon supporting complicity in that intentional killing. None of this amounts to a general rule of murder liability for causing death accidentally in the course of any unlawful act.

Subsequent writers rejected any substitution of an unlawful act for malicious intent as an element of murder. Thomas Hobbes complained in his 1681 Dialogue Between a Philosopher and a Student of the Common Laws of England that Coke had no authority for treating accidental killing in the course of an unlawful act as if it were committed with "prepensed malice." (99) Writing at about the same time, Matthew Hale insisted that a killing in the course of an unlawful act was manslaughter only, unless accompanied by malice, which he defined as an "ill intent" (100) or an "intention to do harm." (101) Hale added that "[t]hough the malice did not rise so high as death, but intended only to beat the party, yet if malitious, it is Murder if death ensue." (102) Hale followed Lambarde and Coke in offering the killing of a resisting robbery victim as an illustration of implied malice. (103) He also concluded that the accidental killing of one person in the attempt to kill another was malicious. (104) Finally, following Lord Dacres, he concluded that "[i]f a person ... comes with a general resolution against all Opposers, if the act be unlawful, and death ensue, it is Murder...." (105)

Hale commented on one further instance of unlawful act homicide. He considered death resulting from the administration of a potion to induce abortion to be murder,

   for it was not given to cure her of a disease, but unlawfully to 
   destroy her child within her, and therefore he, that gives a 
   potion to this end, must take the hazard, and if it kills the 
   mother, it is murder, and so ruled before me at the assizes at 
   Bury in the year 1670. (106) 

This position looks harsh to the modern reader, but fits with Hale's conception of malice as the intent to injure, since Hale regarded abortion as manslaughter. (107)

While Hale confined the mental element of murder to an intent to harm, he also restricted the act element of murder to killing. Homicide required not just causing death, but causing death by means of a battery, "for the ... death without the stroke or other violence makes not the homicide...." (108) Hale added that

   [i]f a man either by working upon the fancy of another or possibly 
   by harsh or unkind usage put another into such passion of grief or 
   fear, that the party either die suddenly, or contract some disease, 
   whereof he dies ... it cannot come under the judgment of felony, 
   because no external act of violence was offerd, whereof the common 
   law can take notice, and secret things belong to 
   God.... (109) 

Thus, Hale's conception of killing would have precluded homicide liability in cases where the frightened victim of a robbery dies of a heart attack, or the despondent victim of a rape commits suicide. Hale's conception of violent acts of course included blows, strangling, and poisoning. However, it also included forcing someone into danger, as by starving or exposing an infant, or confining a prisoner in dangerous conditions.

Summing up Hale's position, Fletcher writes that "there are two distinct ways in which the act of illegal poaching could be used against a party who killed another. It might be used to deny the relevance of provocation: or it might be used to reject the excuse of per infortunium." (110) Only if death resulted from intentional violence would the defense of provocation be available. If the defense were successful, the defendant would be guilty of manslaughter; otherwise he would be guilty of murder. By contrast, the defense of per infortunium would be available only when injury was unintended. If this defense were successful, the defendant would be innocent; otherwise he would be guilty of manslaughter. But an unlawful act involving a threat of injury, like robbery, was inherently malicious in Hale's view. An unlawful motive for initiating violence was therefore inconsistent with provocation. Accordingly, if the robber killed in trying to overcome his victim or anyone resisting the robbery, he was guilty of murder.

D. Proposing a Felony Murder Rule in Eighteenth-Century England

A felony murder rule made its first appearance in English case law as a dictum regarding accomplice liability for collateral crimes in the 1701 case of R. v. Plummer. (111) Plummer was one of a group attempting to export wool illegally. A second member of this group killed a third. While the court concluded that Plummer was not guilty of murder on these facts, Chief Justice Holt discoursed at length on the circumstances under which participation in an unlawful act resulting in death would merit murder liability. For the most part, his conclusions tracked those of Hale. He wrote that "[t]his notion that hath been received, that if divers persons be engaged in an unlawful act, and one of them kills another, it shall be murder in all the rest, is very true; but it must be admitted with several qualifications." (112) These qualifications were (1) "the abettor must know of the malicious design of the party killing," (2) "[t]he killing must be in pursuance of that unlawful act, and not collateral to it," (3) "the unlawful act ought to be deliberate," and (4) "it ought to be such an act as may tend to the hurt of another either, immediately, or by necessary consequence." (113)

Yet Holt then identified what he thought was a conflict between the views of Hale and Coke and offered the following reconciliation:

   Shooting at a deer in another's park is an unlawful act: if the 
   arrow glanceth and kills a man, … 

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