Person:

Kamali, Elizabeth

During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.

This paper focuses on the narrow issue of proof of death to open up a broader discussion of several inter-related themes regarding early common-law development: the fashioning of specialized writs and legal processes to deal with doubtful deaths in criminal and civil cases alike, the cross-fertilization of ideas about proof in canon law and the common law, litigants’ strategies in responding to and taking advantage of problems of proof, and the common law’s reliance on a combination of strict proceduralism and equitable flexibility to reduce the likelihood of false felony convictions or illegitimate outcomes in cases involving the right to possession of land. From the few records I have found thus far in the plea rolls, I tentatively conclude that felony homicide cases were not likely to proceed to trial and conviction where doubt existed as to whether a homicide had actually occurred. Beyond the criminal context, however, doubt about a death underlying a claim to landed property did not preclude adjudication on the merits. Drawing such insights from frequently terse legal records, this paper also highlights the problems of proof faced by medieval historians in making sense of our source materials.