(32) With respect to murder, the law of pardons further mandated that the charter specify whether it "was committed by lying in wait, assault, or malice prepense
[aforethought]." (33) Beyond these limitations, questions regarding the scope of a particular grant were to be construed in favor of the offender and against the crown.
Quite possibly Adam has recognized in Diabolus' mention of "fol porpens" an unintentional allusion to malice prepense, the "evil aforethought" that accompanies the commission of crime.
Further, she does not make the connection between "fol porpens" and malice prepense.
Where the plaintiff established duration through a succession of instants, the defendant did so by redefining "the act" in such a way as to project backward onto its origin its felonious character, an operation that depends on intention (here technically malice prepense mens rea) to sustain duration as a teleological construct apparently the opposite of the momentariness into which the plaintiff analyzes the same act.
To achieve this, they must resolve intentional action into two parts: "For the End of the Act shall be construed by the Beginning of it, and the last Part shall taste of the first, and as the Beginning of the Act had Malice prepense in it, and consequently imported Murder, so the End of the Act,
The more general fiction of implied malice responds to the obvious difficulty of determining whether or not someone had acted with malice prepense. Mackalley's Case (1611), in which an accidental slaying of a constable was judged murder, was a landmark case in the development of the concept of implied malice.(55) By the time of Coke's Third Institutes (published in 1628 but compiled earlier) implied malice had assumed a fully fictional form that could dispense in certain cases with epistemological worries altogether: murder is now defined as killing "with malice forethought, either expressed by the party or implied by law."(56) Coke goes on to enumerate the different situations that imply malice (killing by poison, killing a magistrate, etc.).
All malice prepense is fictitious in the sense that accounts of intention always involve the fictional reconstruction Aristotle calls hypothesis; but transferred and implied malice are also fictions in the strict sense, since they were accepted, implicitly, as such.