We have seen that in the Anglo-Saxon period murder meant homicide through secrecy or stealth. Originally, murder was ‘secret’ in the narrow sense that the slayer hid his victim’s body to conceal the deed, but it probably was soon used more broadly to refer to any homicide whose perpetrator was unknown. It is with this aspect of murder that the murdrum fine was associated, for the hundred was amerced in all cases of unexplained homicide. It is likely, however, that murder already in Anglo-Saxon times might have referred to the fact that the slayer’s identity was concealed from his victim, so that the latter was taken offguard. Both Glanvill and Bracton refer to murder as homicide wherein the concealment was relative to third parties, but this may be due to the fact that by the time they wrote, the sole function of the allegation of murder was to relieve the appellor from the requirement that he claim to have seen the deed with his own eyes. For our purposes, of course, the important question is, not which acts the official concept of murder encompassed, but which acts were considered so heinous by society that they believed the perpetrator deserved to be hanged. The answer to this question as of the twelfth century will probably never be known.

By the fourteenth century, society’s concept of serious homicide was far broader than that corresponding to the original technical meaning of murder…

The Statute of 1390 equated murder with ambush and malice aforethought.’ Its drafters were undoubtedly concerned mainly with highwaymen and house- breakers who robbed and slew their victims. The official term, ‘murder,’ operative only in the administration of pardons, now clearly embraced homicide perpetrated through stealth with respect to the victim. Moreover, true premeditation had come to be conceived officially as at least a common incident of murderous intent. Most murder indictments contain only the operative phrase ‘murdravit’ or ‘insidiavit’ (ambushed); frequently, ‘noctanter’ (by night) appeared. But few indictments are richly detailed and fewer still provide insight into a societal, as opposed to an official, concept of murder. There is nevertheless some indication that the short lived statute cast murder in terms which were too narrow for the community. If murder was, stricto sensu, homicide through stealth, where the victim was taken off guard, it was in its broadest societal use a particularly repugnant homicide…

There is one final point to be made about the late fourteenth and early fifteenth century murder indictments. The slaying of master by servant and of husband by wife, two forms of statutory petty treason, had for centuries been counted among the most reprehensible of homicides. Such slayings figured prominently in the indictments for murder, and all too frequently the jurors alleged that the victim had been slain while he slept in his bed or taken at night by ambush. And, what is more revealing, occasionally it was said in such cases that the slayer had attempted to hide the deceased to conceal the act. Murder, thus, had not entirely lost its most ancient meaning, and, one suspects, its stigma could be attached to any homicide which society found particularly repugnant.

Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)

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)

By the middle of the fourteenth century, a defendant who had slain a housebreaker might be acquitted by judgment of the court. The same applied where he had slain someone who came to rob him. The courts were not consistent in their treatment of such cases, and it appears that at least until late into the century, acquittal might depend upon clear evidence of self-defence. In this area, the community was ahead of the courts. Trial juries supplied evidence of self-defence where, on the basis of coroner’s inquest testimony there had been neither true self defence nor even clear evidence of housebreaking or attempted theft.

Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)

The Supreme Congregation in Rome watched over the provincial tribunals, enforced the observance of what was for the times an essentially moderate code of law, and maintained uniformity of practice. While moral justice was impossible, given the presupposition of the Church that it had the right, even the duty, to prosecute those who differed in their religious beliefs, legal justice in terms of the jurisprudence of early modern Europe was indeed dispensed by the Roman Inquisition.

In trials conducted under its jurisdiction loose allegations were not permitted and accusers made their depositions under oath. To forestall charges stemming from personal animosities, since the names of prosecution witnesses were concealed, defendants were asked in advance to provide the names of individuals whom they considered their enemies. The records of the trial proceedings were provided to prisoners and to their lawyers in writing (with the names of the deponents deleted) and an appropriate interval, varying from several days to a few weeks, allowed for the preparation of counter arguments and the summoning of friendly witnesses. Judicial torture, which was carefully circumscribed, might be applied only after the defense had made its case and where the indicia, the evidence, was compelling. No properly conducted inquisitorial trial commenced with the rigoroso examine. The local bishop or his vicar, duly constituted members of a provincial inquisitorial court, had to concur in the decision and be present during the questioning.

Particularly in witchcraft proceedings, these and many other safeguards were in effect. Physicians were consulted to establish the corpus delicti, specifically to determine whether an illness or death might have had a natural cause before jumping to the assumption that a maleficium had been perpetrated. The search for the Devil’s mark was unknown in the inquisitorial process, and the failure on the part of the accused to evince emotion or shed tears during the interrogation was considered of scant significance. Alleged participants at Sabbats were not allowed to implicate their accomplices, and the testimony of witnesses who suffered from poor reputations could not lead to the torture of the defendant. In serious cases, sentences pronounced by provincial tribunals were scrutinized by the Congregation of the Inquisition in Rome and implausible confessions which contradicted the defendant’s testimony during the trial were deemed invalid. No witch was ever sent to the stake as a first offender if she showed the signs of repentance. Even in the extreme case of witches convicted of having caused a fatal injury, it was only Gregory XV, in 1623, in opposition to the prevailing tradition, who attempted to have the death sentence invoked. Relatively few encounters with the Inquisition ended at the stake. This was a fate reserved for the relapsed, the impenitent, and those convicted of attempting to overturn a few central doctrines of the Church. But even in these cases lesser forms of punishment often prevailed.

I suggest further that many aspects of modern criminal law were already in place in rudimentary form or were being introduced in the tribunals of the Roman Inquisition in the sixteenth century. The arraigned had the benefit of a defense attorney, including “public defenders” appointed by the court for the indigent, at a time when this figure did not exist in English law and was being relegated to a secondary role in civil French and imperial codes; confessions obtained extrajudicially were invalid; appeals could be and regularly were made to a higher court, namely the Supreme Congregation in Rome itself; first offenders were dealt with infinitely more leniently than recidivists. Imprisonment as a punishment, rather than merely for the purpose of custody during the trial, was introduced by the Inquisition, a consequence of the canonical prohibition against shedding blood, long before it was adopted by civil authorities at the close of the sixteenth century. Before that time, when pronouncing final judgment, secular courts could only choose from among several extreme alternatives. A sentence to life imprisonment (carcere perpetuo) by the Holy Office meant, as it does today, parole after a few years, generally three, subject to good behavior; but commutations after even briefer periods are frequently encountered. And house arrest, joined to work release programs and community service, was a common form of penal practice pursued by the Inquisition in its day. Although abuses occurred at the level of the provincial courts, where the local officials were often overworked, undertrained, and even, occasionally, poorly motivated and unsuited for the task at hand, Rome intervened time and again to enforce acceptable procedure and punish negligent and ignorant judges. The flagrant abuses which beset even the supreme tribunal when Cardinal Carafa, the future Paul IV, was its dominant member, and during his reign as pope, 1555-1559, present a notable aberration in the history of the institution.

John Tedeschi, The Prosecution of Heresy (1991)

In order to kill in self-defence [in Medieval England], it was necessary for the man attacked to retreat until retreat was no longer possible. At the trial the jurors always alleged the presence of such an impasse, and though that was sometimes true, a comparison of the coroners’ rolls and the trial rolls reveals that it often was not and that a petty jury had so altered the facts as to make pardonable what the law considered nonpardonable. From the community’s point of view, a violent attack could be met by a violent response. A man whose life was threatened did not have to seek some means of escape; indeed, he need not do so though he was not in danger of losing his life. The court’s concern with last resort indicates a concept of criminal liability fundamentally at odds with prevailing social notions.

Thomas A. Green, “Societal Concepts of Criminal Liability for Homicide in Mediaeval England” (1972)

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)

After the weakening of the popolo/Geremei government in 1292 and under the impact of factional conflict and the institution and expansion of “privileged” status in 1306, 1310 and 1319, however, the use of private accusation procedure changed dramatically. Assault cases had been, as we have seen, the type of case that dominated the private accusation court procedure and had been the means by which families controlled their feuds in the thirteenth century. Accusation procedure was the specific area still reserved for “private justice,” the area in which the podesta, representative of “public justice,” did not have the authority to initiate an investigation, except under certain specified circumstances. But the function of assault charges in the private accusation judicial process had changed – from a means of controlling feuds to a means of vengeance, protection, and control by the ruling faction. In the early fourteenth century one increasingly finds only the charges of the privileged against their enemies. There are no counter- charges since the law of privilege effectively prevented the opposition from using the courts.

A complete register of accusations has survived from January, February and March of 1319, the year of yet another factional coup that further narrowed the power base to those who supported the growing authority of the Pepoli family, and the evidence from that register indicates a pattern startlingly different from the popolo-dominated 1280s. Increasingly in the early fourteenth century private accusation procedure came to be monopolized by those of “privileged” status. In the complete 1319 register, which is typical for accusation records of that period, there are thirty-four cases, (of which thirty concern assault and four concern trespass or property damages). What is startling is the number of cases in which the accusor invoked his privileged status: Twenty-eight of the thirty-four cases, a figure in sharp contrast to the low number typical of the 1280s pattern. The “privilege” referred to was popolo status of accusor and magnate status of accused or that of simple privilege (that of 1306) and “new” privilege (that of 1310). Of the remaining four cases, two of the accusors were titled individuals from the city, which would put them in the elite category. In not one case is there a counter- charge by the accused as was typical of the 1280s. By 1319 accusation procedure was the preserve of the privileged and elite of society. The courts were being used not so much to contain the vendetta as to further it. Criminal justice, which had been depersonalized in theory, but not in practice, during the popolo dominated 1280s, became an even more manipulated and personalized system in both theory and practice in the early fourteenth century.

The nature of social control thus had changed significantly by the early fourteenth century. To be sure, in both the popolo reform years of the late thirteenth century and the post-1306 faction-dominated period the courts were manipulated and to an extent that manipulation can be interpreted within the framework of “conflict theory.” Thus, during the 1280s, as we have seen, the entire community had used the courts to protect itself against “outsiders” and the popolo party had also utilized the courts, probably less successfully, as a means of pursuing its conflict against the magnates. After 1306 manipulation took the form of one faction of the popolo party using the courts in its struggle against another faction. But there is a major difference between the nature of social control in those two periods that cannot be explained within the limitations of conflict theory. In the 1280s the courts not only served as a vehicle for conflict, but they also functioned well in minimizing disputes and helping to control the vendetta. This role, however, was severely reduced in the new kind of social control that dominated the post-1306 period.

Moreover, the role of ideology had changed as well. Ideology, which had served as the ethos binding together the popolo party and its sympathizers and which did have an impact on criminal justice in the 1280s, had become a mask for the self- interests of a narrow group…The criminal court system of the early fourteenth century had lost any trace of pretensions to impartiality and impersonality and had become a blatant instrument of factional conflict, protection, and revenge. The legal reforms of the late thirteenth century and the popolo ideology of law and order, with its ideals of abstract justice, were only a temporary reality in the thirteenth century and were submerged in the factionalism of the early fourteenth century. The dream of justice remained unfulfilled in the thirteenth and fourteenth centuries and remained so for centuries to come.

Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna” (1982)