The poisoned apple of malice

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Journal Article
Griffith Law Review, 2014, 22 (1), pp. 150 - 179
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© 2015, Routledge. All rights reserved. Contemporary criminal law tends to regard malice through the lens of act, intention and consequence. I argue that this modern reading of malice through contemporary patterns of blameworthiness is a misreading, and loses alternative (legal) ways of organising wickedness. Historical accounts of malice can and should be regarded as a (legal) resource by which to critique and enrich modern accounts of blameworthiness. To this end, I explore the construction of malice as a cogent, resonant concept of legal wickedness by treatise writers in the sixteenth to eighteenth centuries. Treatise writers aimed to ensure that malice was sufficiently broad and malleable so that wickedness would not escape the law. Saundersʼ case was integral to the construction of malice, and it was used by treatise writers to claim and demonstrate the malleability of malice. Saunders had malice because he caused the death of a subject of the Queen, with premeditation and through the uncanny act of poisoning. The slippage across modern patterns of blameworthiness should not be regarded as a failure to settle upon a pure definition of malice, but as integral to the function of malice to persuade that wickedness would not escape the law. Treatise writers also drew upon Saundersʼ case to express and excite fear and repugnance of wickedness and included an emotional account of wickedness. The poisoned apple provided an image to assist treatise writers to develop and clarify malice. I conclude by arguing that Saundersʼ case also highlighted the limits of law, its shaky foundations and the contingency of the construction of malice.
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