Month: September 2021

Episode 3: Provocation



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.

Bonus Episode: The Origins of the Word Murder: murdrum, morth, and malice aforethought

In today’s bonus episode, we look at the origins of the terms “murder” and “malice aforethought.” We see that “murder” comes from a few sources, including murdrum and morth. In the end, murder becomes strongly associated with secret killing, killing with no witnesses, or killing somewhere remote. This association brings the concept of murder closer to the concepts of ambush and premeditated killing. Perhaps this explains why murder ends up being defined as killing with “malice aforethought,” a term which also strongly implies ambush and premeditation.

I gloss over a lot of debates in this one. First, I should point out that William the Conqueror may not have invented the murdrum fine, and that it might predate the Norman conquest and go back to the Danish conquest. The debate on this issue seems to stem from confusion among the medieval sources – one famous medieval legal writer, Bracton, says the law goes back to the time of the Danish King Canute, but earlier sources attribute the law to William. For more on this, see: 

  • O’BRIEN, BRUCE. “Conquest and the Law.” In Conquests in Eleventh-Century England: 1016, 1066, edited by Laura Ashe and Emily Joan Ward, NED-New edition., 41–64. Boydell & Brewer, 2020.
  • And check out Maitland’s essay on the Criminal Liability of the Hundred [the name of the community that was fined with the murdrum fine] in The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 1.


As I mentioned in the episode, and as these sources show, it’s not entirely clear that the rationale for the law was to punish Anglo-Saxons for killing Danes or Normans and getting away with it. 

For more on morth, check out Thomas Green’s article (cited in episode 2), O’Brien, Maitland, and Johnson, Nelson E. “The Early History of the Crime of Murder.” Brief, vol. 6, no. 4, 1906, p. 269-275.  O’Brien argues that morth has more to do with a kind of killing for which the victim’s family cannot receive compensation (perhaps because the perpetrator is unknown), as well as with treachery and treason. 

You can find Richard II’s statute on pardons if you have access to the volume of works called Statutes of the Realm. You can access the Statutes of the Realm via Heinonline. The citation is 13 Rich 2 c2 1389-90, also known as the Statute of Westminster (1390). 

A painting by J. Coghlan
of Richard II languishing in prison. Presumably he is regretting his earlier lenience towards traitors and murderers.

Here is poor Richard, learning the hard way that murder and treason are no laughing matter.

Finally, if you are curious about the debate over whether “murder, killing by await, assault, or malice prepensed” is a list of synonyms or if they’re all different concepts, check out Thomas Green’s article, where he disagrees with historian J.L. Kaye on this. I’m on Team Green for this one.


Episode 2: Medieval Murder and the Birth of Manslaughter

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).



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. 

Episode 1: Welcome to the History of Murder Podcast!

Welcome! Today’s episode is an introduction to the History of Murder podcast series. 

In this episode, we ask all the important questions: what is murder and who cares about its history? Is it really murder when you cannibalize your shipmate in a moment of desperation? It is? Darn. Also what is the common law? And what is this podcast all about?

The History of Murder Podcast is a legal history podcast that looks at the crime of murder and how it developed over time in the common law.

As we discuss in today’s episode, the common law is one of the world’s major legal systems. It’s the basis for the legal system in numerous countries — almost anywhere that was once an English or British colony. This includes the United States, Canada, Australia, New Zealand, Jamaica, Cyprus, India, Pakistan and Singapore, to name just a few. It originates in England (and Wales!), and so much of the older history we look at in this podcast will focus on English history, although we’ll certainly see developments in other places too, especially in the post-Revolutionary USA.

Please use the contact page to reach out if you have questions or comments, or message us on Twitter @murderhistorian (caveat: not a historian)!