MALITIA

MALITIA

malitia (m[schwa]-lish-ee-[schwa]). [Latin ¡°malice¡±] Hist. An actual evil design; express malice. ? Malitia originally signified general wrongdoing, and did not describe a wrongdoer’s state of mind; malitia praecogitata, for example, indicated only the seriousness of the offense, though it was eventually rendered malice aforethought.

malitia capitalis (m[schwa]-lish-ee-[schwa] kap-i-tay-lis). [Latin] Hist. Deadly malice.

malitia excogitata (eks-koj-[schwa]-tay-t[schwa]). See malitia praecogitata.

malitia praecogitata (pree-koj-[schwa]-tay-t[schwa]). See MALICE AFORETHOUGHT.

¡ª Also termed malitia excogitata.

¡°[T]he word felony is often coupled with what will in the future be another troublesome term of art, to wit, malice aforethought or malice prepense (malitia excogitata, praecogitata)…. When it first came into use, it hardly signified a state of mind; some qualifying adjective such as praemeditata or excogitata was needed if much note was to be taken of intention or of any other psychical fact. When we first meet with malice prepense it seems to mean little more than intentional wrong-doing; but the somewhat weighty adjectives which are coupled with malitia in its commonest context ¡ª adjectives such as excogitata ¡ª are, if we mistake not, traces of the time when forsteal, guetapens, waylaying, the setting of ambush, was (what few crimes were) a specially reserved plea of the crown to be emended, if indeed it was emendable, by a heavy w¨ªte.¡± 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I 468¨C69 (2d ed. 1899).


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