Throughout the entire mediaeval period for which written records are extant, the great majority of defendants who stood trial were acquitted. While many are acquitted today, one must take into account the fact that most suspects do not now stand trial; the vast majority of them plead guilty. In the middle ages few pled guilty to any felony, as the penalty was invariably capital.’
Doubtless, many defendants deserved acquittal. Many charges were poorly supported. The coroner’s report might reflect the testimony of only a few neighbors and might represent only the most serious charges which circulated in the wake of a homicide. Although coroners were required to list all those present at a homicide,’ they often failed to do so. In many cases, they recorded the details of a slaying, maintaining at the same time that no one had been present except the slain man, who had died immediately, and the slayer, who had thereupon fled. What, then, was the source of those details? There had probably been witnesses who were not anxious to become involved, to risk coming under suspicion themselves. To come forward later was to risk a fine for not having raised the hue.8 On the other hand, what they had seen must soon have become the common knowledge of the countryside, and, allowing for the usual exaggerations or alterations of the true story, may have appeared in the coroner’s enrollment as a fairly accurate account of the event. But it is difficult to separate the accurate descriptions from the cases of mere guesswork. The trial jurors probably took a more reasonable view, rejecting unsubstantiated testimony.9
Though malicious prosecution and honestly moved but mistaken indictments may account in part for the high rate of acquittals, other factors must also have been at work. It is contended here that, for the most part, those few who were condemned had especially offended against the standards of the community. By discriminating between them and the many who committed homicides of a less serious nature, the jurors were creating, de facto, a classification roughly similar to the later legal distinction between murder and manslaughter.
The clearest evidence of juries discriminating on the basis of the nature of the slaying dates from the end of the fourteenth century and the first decades of the fifteenth. In 1390, century long protests against the royal pardoning policy culminated in a statute which restricted the power which the king had to grant to those who had committed murder pardons of grace.’Murder,’ as a term of art, referred to the most heinous forms of homicide, those perpetrated through stealth, at night or by ambush. It appears to have been directed especially at murderous assaults committed by professional highwaymen and burglars for monetary gain. The King agreed not to pardon murderers lightly; moreover, no pardon for murder would be valid unless it made specific mention of ‘murder.’ It is extremely important to note that culpable homicide continued to include both murder and simple homicide. Both were capital; no judicial distinction was made between them. The term ‘murder’ was employed, where relevant, solely for the purpose of administering the Statute of 1390. Though the statute’s effectiveness was short-lived, for several decades ‘murder’ found its way into some homicide indictments.
Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)