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,
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.
This construction of a homicide as an act of self-defense translated in turn into a suicide originated as a mitigating fiction used by medieval juries to help those patently guilty of a simple slaying avoid the rigor of the law of homicide, which had as yet developed no intermediate category between accidental killing and murder with malice prepense. The jury would maintain that the attacker had run himself through with the defendant's weapon, the defendant having supplied no motion.(66) It was among the most common jury fictions of the fourteenth century, but had fallen out of use by the mid-1500s (in part because of the rise of manslaughter) while nevertheless surviving in texts like Pulton's.(67)
Transferred malice provides a conceptual framework in which it is possible to say that intention (that is, the intended death, or malice prepense) is something that can be "transferred" from one object to another, through the quasi-mechanical instrumentality of "haste," as though it were a kind of bodily or material substance communicated, like sweat, in proximity and exertion; intention is seized on and inserted into a fully fictional logic of action.