Abstract
This paper explores the meaning of the word “felony” in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case out of the realm of felony. It suggests that the very definition of felony and felonious behavior—and thus the essence of criminal responsibility—may be bound up with the idea of mens rea during this period. The paper aims to uncover broader societal understandings of the nature of guilt and innocence, and to highlight connections and disconnections between the formal criminal law of felony, with its heavy emphasis on capital punishment, and popular and ecclesiastical understandings of culpability.
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Notes
An eyre, derived from the Latin iter, to travel, was a court session presided over by itinerant royal justices, who would hear crown pleas (primarily what we would classify today as criminal cases) and adjudicate other matters, including the resolution of civil disputes and administrative matters regarding royal officials in the counties.
For the full text, see Sutherland (1983, pp. 207, 213). I rely on Sutherland’s translation. Unless otherwise indicated, translations and modernizations elsewhere are my own. For the manuscript image of the official trial record, see JUST1/635 AALT 0898 (1329), http://aalt.law.uh.edu/AALT4/JUST1/JUST1no635/bJUST1no635dorses/IMG_0898.htm (last accessed 10/7/12). Citations to National Archives documents (e.g., JUST1) refer to the digital archive assembled by Robert C. Palmer, Elspeth K. Palmer, and Susanne Jenks, The Anglo-American Legal Tradition, available at http://aalt.law.uh.edu/aalt.html, hereafter AALT.
Regrettably, the eyre record fails to provide a date for William’s initial arrest and decapitation. However, it was not unusual to have a gap of several years or even decades between royal eyre visitations. At the 1276 London Eyre, for example, many incidents from the early 1250s were pursued. In several instances, witnesses or even alleged perpetrators had already died. See Weinbaum (1976, pp. 3–15 and ff.).
John Bellamy has demonstrated that defendants described as “common” or “notorious” felons had a much higher chance of conviction. See Bellamy (1998, pp. 29–30). Of course, it is also possible that other factors were at play. For example, perhaps the most culpable actor had already died, while the three surviving townsmen had been involved more peripherally in the decapitation incident.
For an eloquent refutation of this view as it appears within literary criticism, see Aers (1992).
Stuntz (2011, pp. 260–267). Stuntz argues that this changing standard, coupled with a shift toward plea bargaining at the expense of jury trials (where due process safeguards might result in more acquittals), has contributed to the swelling of America’s prison population in recent decades. Perhaps understanding mens rea’s earliest applications may help contribute to dialogue on this issue.
For another example of a thief killed in the act, see Stewart (2006, p. 297). In this case, William son of Jordan killed Walter le Rus, who had broken into William’s grange at night. The jury framed the narrative as a case of self-defense, arguing that Walter had drawn his knife to kill William. Furthermore, the jury elaborated that Walter was a “fierce thief and burglar” (fortis latro et burgator), who could not have been apprehended in any other way. William was remanded to gaol to await the king’s pardon.
See, e.g., Cam (1968, pp. 88, 100), Sayles (1955, pp. 23, 44, 47). See also the case of Geoffrey le Shepehurd, accused of killing Oliver de Rytone feloniously as a felon (felonice ut felo), JUST3/74 AALT 0069 (1308/9), http://aalt.law.uh.edu/AALT7/JUST3/JUST3no74_3/IMG_0060.htm (last accessed 10/22/12).
Consider, for example, Nicola Lacey’s contention that eighteenth century uses of such terms as ‘maliciously’, ‘wickedly’, or ‘feloniously’ did not point to interest in a guilty mind or a defendant’s internal state, but were rather starting points for an investigation of external conduct. Lacey (2010, p. 117).
This would bring the reading of felony in legal texts in closer alignment with some readings of felony in literature. See, e.g., Cropp (2003, pp. 73 and 78). Cropp describes felony as a powerful force—driven by anger and hatred and characterized by aggression and violence—that could disrupt relations based on fealty.
This paragraph draws upon my forthcoming entry on “felonies” for The Encyclopedia of Criminology and Criminal Justice. I also make use of the following dictionaries: J. F. Niermayer’s Mediae Latinitatis lexicon minus (Leiden: Brill, 1976); The Anglo-Norman Dictionary at http://www.anglo-norman.net/gate/ (last accessed 10/15/12); The Middle English Dictionary at http://quod.lib.umich.edu/m/med/ (last accessed 10/15/12); and the Oxford English Dictionary, 3rd edition. A further analysis would try to trace precisely when and how felony took on its adverbial and adjectival forms, and to trace any differences in meaning between the use of felony as a substantive and its use as a modifier. It may be that the adjectival and adverbial forms of felony maintained their connection with wickedness for some time after felony as a substantive came to signal a category of crime. Regrettably, this analysis lies beyond the bounds of the present paper.
See, e.g., Blackstone (1769, Book IV, Ch. 7), Plucknett (2010, p. 442). Goebel dates this use of felony to the twelfth century (1937, pp. 249–250). One of the earliest, non-literary continental references to felonia I have found to date is from an 1162 concord between Emperor Frederick I and Count Raymond of Barcelona (Raymond Berengar IV), in which the word is used in the context of the emperor granting the county of Provence in feodum. Appelt (1979, p. 245) (located through the Monumenta Germaniae Historica website, http://www.dmgh.de/ (last accessed 10/28/13), at MGH DD F I 2 S. 245). The term appears even earlier in the Leges Henrici Primi (c. 1115). Not specifically focused on origins, I have not undertaken an exhaustive search for earlier uses, but I suspect the word felonia may be traceable much earlier.
Even today, where to draw the line between non-criminal villainy and criminal felony remains a live and vexing question. See, generally, Katz (2002).
Early modernists have zeroed in on felony as well. In her study of criminal law in seventeenth century England, Cynthia Herrup (1987, pp. 2–3) defines felony as a deliberate, malicious wrong, in contrast to the idea of mistake. Felony, in Herrup’s assessment, “struck at the very heart of a community” and, in cases resulting in execution, typically involved a direct violation of one of the Ten Commandments.
The French translation was produced within a decade or two of the Latin original. For information on the dating of the coutumier, see http://www.law.harvard.edu/library/digital/summa-de-legibus-normanniae.html#appendix (last accessed 1/23/13). For the text of the section on homicide, see Tardif (1881, pp. 26–27).
Downer (1972, pp. 170–71, §53.4). See also ibid., pp. 156–57, §46.3. I rely here on Downer’s translation.
The original French is from Mortier (1940, p. 28). For access to images of the full manuscript (Oxford, Bodleian Library, MS. Digby 23), see http://image.ox.ac.uk/show?collection=bodleian&manuscript=msdigby23b (last accessed 1/24/13).
These excerpts (from lines 6,891, 6,166, and 3,179, respectively) are taken from the website of the Princeton Charrette Project, http://www.princeton.edu/~lancelot/ss/ (last accessed 10/22/13). See also line 5,487, describing Meleagant as known to be fel, or wicked. For access to the critical edition, see http://gravitas.princeton.edu/charrette/figura/main-in-frame.php?pg=text-object&start_line=1 (last accessed 1/24/13).
See Robert Mannyng’s Handlyng Synne, a 1303 adaptation of an Anglo-Norman penitential manual: “When this Judas, foul felon, awaited Jesus with treason…” (Whan þys Iudas, foul felun, Weytede Ihu wyþ tresun…) The text goes on to exhort: “Traitor, remember what you have heard, said, and sung in all the world. Under heaven there is not so great a treason as in the fair words of a felon at heart.” (Treytur, recorde what þou hast herd,/Seyd, and sunge yn al þe werld. Vndyr heuene ne ys so moche tresun,/As yn feyr wrd of herte felun.) Mannyng (1983, p. 106, lines 4,189–4,190, 4,195–4,198). To take another example, two different manuscripts of the thirteenth century poem Bevis of Hampton interchange words of felony and treason: “‘Saber,’ she said, ‘where is Bevis, that wicked traitor, that foul thief?’” (Saber,’ ʒhe seide, ‘whar is Bef,/þat wike treitour, þat fule þef?’) and “‘Saber,’ she said, ‘where is Bevis, that wicked lad, that felon?’” (‘Sabere,’ she said, ‘where is Bevoun,/That wekyd lad, that ffelown?’). Kölbing (1885, p. 21, lines 479–80 and 357–58). It may be due to the blurring of the distinction between “felony” and “treason” that Parliament was called in 1352 to clarify the meaning of “treason” and to pronounce that riding armed with other armed men, in order to attack or rob another, was not treason, but instead either felony or trespass. Ormrod (2005).
A remaining question is just what threshold of forethought would justify a felony conviction: was advance planning requisite, or might one “deliberate” in the heat of the moment to form a hasty, yet felonious, plan?
Lewis and Short defines simplicitas as simpleness or simplicity, and indicates that word can also evoke, in a moral sense, frankness, artlessness, or innocence.
He received one mark, well over the cost of a cow, for comparison purposes. See http://www.luminarium.org/medlit/medprice.htm (last accessed 3/10/12).
Sutherland (1983, p. 215). For a roughly contemporary example from Cambridgeshire, see Kimball (1978, pp. 36–37). The case involves a mother who killed her daughter “neither through malice nor premeditated felony but only on account of her frenetic illness” (neque per maliciam neque per feloniam precogitatam set tantum causa infirmitate sue frenetice). I have modified Kimball’s transcription slightly upon consulting the MS image at JUST 3/7/2 AALT 0110 (1332) http://aalt.law.uh.edu/AALT7/JUST3/JUST3no7_2/bJUST3no7_2dorses/IMG_0110.htm (last accessed 8/20/13). See also the case of Philip Statheman, whose killing of his wife was described as a felony, although he was recommended for a pardon due to the circumstances of his mental illness. Namely, the jury found that he had been mad (extitit furiosus) at the time of the homicide. JUST3/48 AALT 0047 (1315), http://aalt.law.uh.edu/AALT7/JUST3/JUST3no48/aJUST3no48fronts/IMG_0047.htm (last accessed 8/16/13). Some terms of art used to describe the mentally ill include furiosus, freneticus, and non compos mentis, and juries were typically questioned as to the duration and intensity of a reputedly insane defendant’s illness, including whether the defendant had been experiencing a lucid interval when he or she committed an alleged crime. For a survey of the literature on madness in the medieval period, see the introduction to Turner (2010), pp. 1–16).
Does this mean, perhaps, that he committed a felony, but not feloniously? A return to my earlier question…
See, e.g., Downer (1972, pp. 282–83, §90.11a).
This idea is captured in a passage from the Ayenbite of Inwyt, discussed infra at n. 40.
Thorne (1968, p. 384). Consilii might also translate to deliberation. The nexus between the insane and the infantile might also be reason, or lack thereof, as suggested by Bracton’s comment that “animals which lack reason (ratione carent) cannot be said to commit iniuria or felony.” Ibid., p. 379. I have amended the “facti infelicitas” in Thorne’s edition to “fati infelicitas,” although a look at the MS evidence would be necessary to make such a change with confidence.
My thanks to Ben Graham for pointing out the possible significance of the aliquam construction.
Sutherland (1983, p. 218). For the original manuscript image, see JUST1/635 AALT 0699 (1329), http://aalt.law.uh.edu/AALT4/JUST1/JUST1no635/aJUST1no635fronts/IMG_0699.htm (last accessed 10/7/12).
Gretham (2002, p. 2) (…who þat doþ yuel by his wille, [ful] gret schal be þe vengaunce þat scahl be taken of hym.).
Meekings (1961, p. 180, §146. Original Latin from MS image at JUST1/996 AALT 0151 (1249), http://aalt.law.uh.edu/AALT4/JUST1/JUST1no996/bJUST1no996dorses/IMG_0151.htm (last accessed 10/7/12).
Meekings (1961, p. 238, §445). Christiana’s husband had already been hanged for the homicide.
David J. Seipp, An Index and Paraphrase of Printed Year Book Reports, 1268–1535 (hereinafter “Seipp’s Abridgement”), available at http://www.bu.edu/law/seipp/ (last accessed 3/13/12). This item may be found by searching for Seipp #1322.018.
Michel (1965, p. 11). (…yef þer is/eni kuead arizinge/wyþ-oute wylle/and wyþoute grantinge/to harmi oþren : hit ne is no zenne. And yef þer is zenne : hit is liʒt zenne.).
Yet another example of residual guilt, suggesting a somewhat obsessive concern with not writing off any sin or crime as entirely excused or justified.
Michel (1965, p. 9); “Wrath or contempt that goes lightly without great will or willing to harm others, that is not deadly sin.” (…wreþe/oþer onworþnesse/þet geþ liʒtliche/wyþoute greate wille/an willinge/uor to harmi oþren : ne is naʒt dyadlich zenne.).
Ibid., p. 8 (hate/and of wreþe/and of grat ire).
Ibid. (þe ilke/þet hateþ his broþer he is manslaʒþe/ase to his wylle and zeneʒeþ dyadlich).
Rolle (2007, p. 23) (All synnes sal þow hate thorow castyng of skylle/And ʒherne to gang in þe gate þat es withowten ille.) Gate might also denote path.
For a discussion of the contrast between felony and necessity as presented in Britton and Fleta, see Green (1985, p. 77, n. 34).
Meekings (1961, p. 184, §166). MS image at JUST1/996 AALT 0064 (1249), http://aalt.law.uh.edu/AALT4/JUST1/JUST1no996/aJUST1no996fronts/IMG_0064.htm (last accessed 10/15/12). Another entry from the same eyre similarly specifies theft by stealth. See ibid., p. 218, §350.
Jurors and judges may have been reluctant to punish a theft too harshly in the presence of mitigating circumstances. See, e.g., Meekings (1961, p. 256, §557) (amercing the coroners and bailiffs, who compelled a woman named Helen to abjure the realm for “so small a crime,” namely, the theft of a rochet or overgarment).
It is difficult to make out the abbreviated Latin, but I believe Robert is called “pessimus pater,” or the worst sort of father.
Thorne (1968, pp. 340–41). The phrase dolore animi might also be translated as pain or sorrow of the soul or intellect. The text seems to suggest that this sorrow would have been felt by the actor during the act, thereby distinguishing the homicide from a felonious killing.
Michel (1965, p. 202) (“þe flum iordan þet is ase moche worþ : ase stream of dom and be-tokneþ ssrifte. Huer man ssel him-zelue deme mid greate zorʒe of herte/and mid greate repentonce/zue þet o stream of tyeares : yerne be þe condut of þe eʒen.”).
My thanks to Martha Umphrey for suggesting this possibility.
Cam (1968, p. 81). For additional examples of self-defense, see the case of Robert, son of John, at JUST3/1/1 AALT 0015 (1310), http://aalt.law.uh.edu/AALT7/JUST3/JUST3no1_1/aJUST3no1_1fronts/IMG_0015.htm (last accessed 10/22/12); and that of William Mose, at JUST3/1/1 AALT 0025 (1313), http://aalt.law.uh.edu/AALT7/JUST3/JUST3no1_1/aJUST3no1_1fronts/IMG_0025.htm (last accessed 10/22/12).
For additional cases involving allegations of malice or wickedness, see the allegation against John Pricke (accused of fatally attacking Thomas de Barentone ex malicia precogitata), JUST2/18 AALT 0134 (1346), http://aalt.law.uh.edu/AALT7/JUST2/JUST2no18/aJUST2no18fronts/IMG_0134.htm (last accessed 10/22/12); and against Thomas de Stalarys (for killing Robert Palfreyman pro malicia precogitata), JUST2/18 AALT 0148 (1350/1), http://aalt.law.uh.edu/AALT7/JUST2/JUST2no18/aJUST2no18fronts/IMG_0148.htm (last accessed 10/22/12).
See Morris (1961), which displays words of felony in the stories of Adam (þat felun, p. 52, line 773), Cain (felunny, p. 72, line 1,132 and p. 74, line 1,137; felon dede, p. 74, line 1,160; feluns, p. 100, line 1,621); and Ham (fole felun, p. 126, line 2,069). For a description of the Egyptian pharoah as a felun, see Morris (1966a, p. 324, line 5,591). For Herod, see ibid., p. 658, line 11,481 (describing Herod as fals felun); p. 680, line 11,878 (felunlik). For Judas, see Morris (1966b, p. 884, line 15,470). Finally, for references to Jews as felons, see p. 760, line 13,244 (Iues þat war felun); p. 782, line 13,576 (felun Iues). Further references to felons and felony may be found throughout the lengthy Cursor Mundi.
Mannyng (1983, p. 269, lines 7,149–7,151). (Charyte haþ noun enuye,/And charyte wyl no felunnye;/Charyte ys nat Irus,/And charyte ys nat coueytous).
The case implicated the mayor of London, who admitted Henry into the freedom of the city after the commission of the felony, presumably so that Henry could be released on mainprise while awaiting trial. See Cam (1968, p. 95).
Robinson (1957, p. 244, lines 542–546). “Now understondeth that wikked ire is in two maneres; that is to seyn, sodeyn ire or hastif ire, withouten avisement and consentynge of resoun. The menyng and the sens of this is, that the resoun of a man ne consente nat to thilke sodeyn ire; and thanne is it venial. Another ire is ful wikked, that comth of felonie of herte avysed and cast biforn, with wikked wil to do vengeance, and therto his resoun consenteth; and soothly this is deedly synne.” This passage is highlighted in Snell (2001, p. 125).
For another example of this “wickedly and in felony” (nequiter et in felonia) formulation, see Stewart (2006, pp. 267–268). Contrast this with the 1306 case of William de Hampton and Henry of Wollenecherchehagh, who made duplicate keys and files, respectively, that were used to perpetrate a gaol breaking. While the woman who paid for the keys and files was hanged, William and Henry were acquitted of felony because they had neither acted feloniously nor consented to the woman’s felony. Nevertheless, they had acted thoughtlessly (inconsiderate) and were therefore sentenced to a year in gaol. Pugh (1975, pp. 122–123).
Seipp’s Abridgement, Seipp #1322.018. The maxim is traceable to Justinian’s Institutes and is typically applied to treason. See Latin for Lawyers (New York: Lawbook Exchange 1992), p. 255. Both these cases (servant killing master, wife killing husband) implicated some notion of treason.
Seipp’s Abridgement, Seipp #1338.182rs.
In modern law, the common purpose doctrine operates in a similar fashion.
Sutherland (1983, p. 186) (in societate cum predicto Henrico ad partem ipsius Henrici manutenendam).
Our knowledge of this case derives from year book and plea enrollments. It was later determined that one of the two accomplices, Peter of Thirneby, had already been acquitted of the homicide by the justices of gaol delivery at Northampton. The other accomplice, as well as the principal, managed to flee the jurisdiction. Ibid.
Meekings (1961, p. 227) (Robert of Poterne had commanded Adam to strike Hugh with a staff). For another example of an appeal in which the jury substantially revised the facts as presented by the original appellor, see ibid., p. 235, §431. Appeals were sometimes motivated by underlying disputes between two parties and might be maliciously fabricated for the sake of revenge. See also ibid., p. 250, §526 (a false appeal in which the jury substantially revised the facts as presented by the appellor to suggest that the appealed man had been provoked by offensive words into striking; questions of honor may have been at stake).
Downer (1972, pp. 94–95, §5.28b). Downer translates: “A person is not to be considered guilty unless he has a guilty intention.” The author of the Leges may have borrowed this maxim, which applied to perjury, from Ivo, Pan. viii. 111 and 116, although Downer has also traced the statement to Augustine, Sermones 180.2. Ibid., p. 311–312.
Ibid., pp. 216–17, §68.7. See also the Leges provision regarding murder of parents: “Anyone who kills his father or mother accidentally shall do penance for fifteen years; if he did it intentionally, he shall do penance until his life’s end.” Ibid., pp. 216–17, §68.9.
I leave the free will/determinism question, relevant though it is, entirely aside in this analysis.
Might jurors in other instances convict an individual (e.g., a thief caught red-handed) of felony despite their belief that the actor acted in a non-felonious manner (e.g., compelled by starvation)? If so, does this turn my definition of felony on its head?
To take one example, I have tabulated that in the gaol delivery rolls calendared by Bertha Putnam, a total of 101 accusations resulted in 89 acquittals and nine hangings. Of the three remaining individuals, two have no recorded verdict, and the third was a cleric, who was remanded to prison as a convicted felon. Admittedly, these cases mostly involve theft, rather than homicide. See Putnam (1933, pp. 80–103). Perhaps the most comprehensive summary of conviction rates can be found in Bellamy (1998, pp. 93–95), in which he documents a remarkable decline in felony conviction rates in the late-fourteenth century, when rates averaged roughly 15–16 % throughout England. See also Green (1985, pp. 22–23 and n. 79).
In addition to acquittals, we could broaden our scope and consider the practices of sanctuary, abjuration, and benefit of clergy, all of which fall outside the scope of this paper yet are crucial components of a more holistic approach to defining felony.
John Bellamy makes a strong case for the influence of such relationship obligations. See Bellamy (1998, p. 118).
See, e.g., Michel (1965, p. 15) “For on earth there is not so holy a man who might perfectly shun all manner of sin.” (Vor in erþe/ne ys zuo holi man : þet moʒe/parfitliche be-uly/alle maneres of zenne.).
Horner (2006, pp. 326–327). (Spiritualiter sumus felons, omnes peregrini.).
The dangers of judging, often connected to the misjudgment of Christ, fall outside the scope of this paper. To take just a single example of this type of sentiment, an early fifteenth century sermon invited the listener to comprehend how “the highest and just judge should be arraigned as a felon,” and “the author of life, the innocent one, should be damned to death.” See ibid., 478–79. (summus et iustus iudex schuld be areynyd sicut a pheloun, quod auctor vite, vnus innocens, dampnaretur morti.) For the most comprehensive discussion of the dangers of judging in the medieval period, see Whitman (2008).
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Acknowledgments
This paper represents a small part of a larger project, tentatively entitled A Felonious State of Mind: Mens Rea in Thirteenth- and Fourteenth-Century England. My thanks to the participants in the workshop ‘Criminal Responsibility and its History’ held at the University of Minnesota Law School in April 2012, and in particular to Antony Duff, Lindsay Farmer, and Susanna Blumenthal for their formal comments. Heartfelt thanks also to Thomas A. Green, whose work on the medieval jury inspired and continues to inform this project, and to Katherine French, Sheree Brown, Benjamin Graham, and Yanay Israeli for their most helpful feedback on an earlier draft. An additional debt is due to Alison Cornish, Leslie Pincus, Tara Dosumu Diener, Aston Gonzalez, Josh Mound, Alice Sullivan, and Leann Wilson for their comments. Finally, my gratitude to Charles Donahue, Jr., Diane Owen Hughes, and Catherine Sanok, for their guidance and advice on my overall project.
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Kamali, E.P. Felonia Felonice Facta: Felony and Intentionality in Medieval England. Criminal Law, Philosophy 9, 397–421 (2015). https://doi.org/10.1007/s11572-013-9273-2
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DOI: https://doi.org/10.1007/s11572-013-9273-2