The Meaning of Killing

Abstract

The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing. It examines a cross-section of the homicide cases reported in the Proceedings of the Old Bailey between 1674 and 1834. The study’s cases suggest that the categories of murder, manslaughter, and accidental death were distinguished primarily on the basis of differences in conduct rather than mental states, and that intent to kill was almost completely peripheral in seventeenth and eighteenth century English homicide law.

Keywords: criminal law, homicide, legal history