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Episode 3: Provocation

September 29, 2021 historyofmurderpodcast_st5s3k Uncategorized 0 Comments

 

 

Today’s episode features a considerable amount of spontaneous stabbing. We start off with the famous case of Watts v Brains (1600), where the court has to deal with two major problems. First, is it OK to kill someone just because they make “a wry face” at you? Second, how do we prove malice aforethought (and therefore that someone committed murder) if one person kills another in the heat of the moment?

We go on to see how the famous judge, Sir Edward Coke, decides to solve these problems by changing the rules of the game. From now on, he tells us, we can just presume that it’s murder when one person kills another without provocation.

This brings us on a whirlwind tour of the idea of provocation. Can you be provoked by verbal insults? Rude gestures? Slaps? The loss of a stranger’s liberty? Adultery? What else? The answers may surprise you.

Notes on sources:

  • Most of these cases are reported by Kelyng and Hale. I selected them (and they are the usual ones selected) because they are featured in Mawgridge’s case, decided by Holt in 1707.
  • For the quote I read (and for a great article), see Kesselring, K.J. “No Greater Provocation? Adultery and the Mitigation of Murder in English Law.” Law and History Review 34, no. 1 (2016): 199-225. Accessed August 10, 2020. 
  • The Old Bailey stats come from Jennine Hurl-Eamon, ‘”I Will Forgive You if the World Will’: Wife Murder and Limits on Patriarchal Violence in London, 1690–1750,” in Violence, Politics and Gender in Early Modern England, ed. Joseph P. Ward (Palgrave Macmillan: Basingstoke, 2008), 223–47.
  • For more on provocation, see Horder, Jeremy. 1992. Provocation and Responsibility. Oxford Monographs on Criminal Law and Justice. Oxford: Clarendon. 

 

Who wore it better? From left to right, the Lord Chief Justices Sir Edward Coke (1613-1616), Sir John Kelyng (1665-1671) and Sir Matthew Hale (1671-1677).

I may have been a little unfair to Coke who was really just repeating the terms of the indictment in Mackalley’s case in the section I read aloud. But the case truly is a nightmare to read, particularly when compared with Kelyng and Hale’s writing, which is a lot clearer and more fun.

Episode 2: Medieval Murder and the Birth of Manslaughter

September 15, 2021 historyofmurderpodcast_st5s3k Uncategorized 0 Comments

Welcome to our first fully historical episode of the History of Murder Podcast!

In today’s episode, we look back at the history of murder law in medieval England. We’ll see a major problem with it: there’s only one punishment for all kinds of killing, and that punishment is death. Do we really want to punish everyone who kills someone else with death? Is it fair to punish everyone in the same way? Don’t we want to punish the serial killer more than we want to punish the random person who killed someone during a bar fight? These problems give rise to the birth of manslaughter, but not before we take a detour through one of the weirdest concepts in the common law, benefit of clergy.

The murder of Archbishop Thomas Becket in Canterbury Cathedral. Not only a classic medieval murder, but a pivotal one for the development of manslaughter (via benefit of clergy).

 

Sources

In this episode, I rely heavily on the following article by Thomas Green and take the Walter and Thomas example from it. Note that their case is a mere footnote in this enormous and very rich article! 

Thomas A. Green, “The Jury and the English Law of Homicide, 1200-1600,” Mich. L. Rev. 74 (1976): 413-99. Available for download here. 

You can find John Salisbury’s case reported by Plowden in The Commentaries, Or Reports of Edmund Plowden, Containing Divers Cases Upon Matters of Law, Argued and Adjudged in the Several Reigns of King Edward VI., Queen Mary, King and Queen Philip and Mary, and Queen Elizabeth [1548-1579] (Part 1), available here on Google books (pp 100-101 of the original text, but note the strange pagination).

For a great overview of benefit of clergy and the early years of manslaughter, check out the introductory chapter to Kesselring, K. J. 2019. Making Murder Public : Homicide in Early Modern England, 1480-1680 (version First edition.) First ed. Oxford: Oxford University Press.