In the Anglo-Saxon period, and for perhaps a century after the Norman Conquest, some homicides were unemendable, leading to punishment – usually capital – at the hands of the Crown. These homicides, secret homicides known as ‘murders,’ were considered particularly heinous and, as outrages against society as a whole, were exclusively royal pleas. It cannot be determined how closely the Anglo-Saxon ‘murder’ corresponded to the ‘murder’ of the late fourteenth century. Probably the term always had connoted stealth; the slayer acted when his victim was off guard. But it appears that any homicide committed in the absence of a witness was presumed to have been committed through stealth. It was in secret, and, hence, a murder. Open homicide, on the other hand, remained until the outset of the twelfth century an emendable act. The guilty party or his kin paid wer, bot and wite. Failure to pay the wer could result in liability to the feud; after the tenth century, only the slayer could be subjected to the vengeance of the slain man’s kin. Although there is no evidence as to the frequency of such feuds, it is likely that settlement in money or in kind was the normal result of sudden and open acts of homicide. If the slaying resulted from a mutual quarrel and involved fighting on both sides, some elements of self-defence probably lay side by side with elements of excessive retaliation. Settlements probably took these elements into account, though in an impressionistic way. The extension of royal jurisdiction in the twelfth century to encompass the entire area of homicide had two revolutionary effects: many homicides which formerly had not resulted in capital punishment were now made capital under the law; strict and largely unenforceable requirements were introduced into a law of self-defence. […]
The evidence as to jury attitudes in the fourteenth century may aid in understanding societal attitudes toward criminal liability in the entire period from late Anglo Saxon times to the end of the middle ages. If so, the argument would run as follows.
Originally, the Anglo-Saxons practiced the feud in homicide cases. The kin of the slain took vengeance upon the slayer or one of his kin, who were jointly liable for their kinsman’s act. Whether the mental element was taken into account is unknown. Secret homicide was a matter for the king, but all other homicides were emendable; failure to pay the wergeld rendered the slayer and his kin liable to vendetta, though reduction of the amount of compensation by agreement was probably common. By the tenth century, the laws restricted liability to vendetta to the actual slayer. They also mandated that the court reduce compensation where there had been mitigating circumstances. In such cases, where the slayer had acted in self-defence or through accident, the king relinquished the wite. While the kin of the slain may have taken a narrow view of such mitigating circumstances, society at large, having nothing to gain from feud or compensation, and in a day when fights began easily and led often to death – due to sepsis or other results of poor medical techniques – took a broader view of the matter. In its eyes, secret homicide or especially malicious attacks justified punishment by death. Simple homicides were seen as requiring compensation, with mitigation if the act was unintentional or to some extent provoked. When all homicides were drawn within the sphere of royal jurisdiction and made, unless excusable, punishable by death, the community was forced to choose between presentment of the slayer and payment of the murdrum, a fine imposed for an unexplained homicide. Before 1215, persons presented for homicide were forced to undergo the ordeal, so that if the community desired to absolve a slayer it had to fail to present him in the first place. The records do not permit us to observe the resulting tension between the bonds of friendship and the demands of the pocketbook. By the third decade of the thirteenth century, however, this tension had been relieved: once the slayer had been presented, it was left to the trial jury to state whether he was guilty or not. This provided them with an opportunity to acquit or to adduce circumstances of pardonable homicide…
Thus, from the outset of the common law period, trial juries reflected a sense of justice fundamentally at odds with the letter of the law. They persisted throughout the thirteenth and fourteenth centuries in using their role as submitters of evidence to condemn murderers and to acquit or render pardonable those whom a later legal age would term ‘manslaughterers.’ Trial juries remained free to reject the conclusions of juries of presentment and of coroners’ inquest juries, to say the truth as they knew it. Of course, the process of fact alteration, in many cases, began before the trial jury gave its verdict: it was not uncommon for a coroner’s jury to use elaborate formulas to describe a case of self-defence. The trial jurors, drawn from the hundred where the homicide was committed, but not necessarily from the immediate vicinage, probably reflected already settled attitudes of the countryside toward individual defendants.
Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)