Category: Uncategorized

Witchcraft

Today’s episode is on one of the best topics ever – the history of witchcraft!

We start this episode by looking at the first famous witchcraft trial (and pamphlet) in England, the case of Mother Waterhouse. Mother Waterhouse’s case gives us some clues as to why witches and witchcraft-accusers tended to be women. One reason is that witchcraft cases tended to revolve around neighborly disputes, household problems and children. Because of this, we’ll see the witch portrayed as the “anti-housewife” and the “anti-mother.”

Then, we’ll look at how witchcraft was prosecuted in the courts. How can you prove that someone is a witch? Many types of evidence are brought before the courts, including children having fits, some extremely doubtful testimony, and the witch’s mark. Over time, the evidence becomes too doutbful to trust and witchcraft becomes impossible to prove by the late-seventeenth century.

Finally, we’ll bring it all back to the history of murder. How does witchcraft match up against other “feminine” crimes we’ve seen so far? 

And yes, it’s true that witchcraft isn’t classically considered a type of homicide. But how could I resist?

The Mother Waterhouse Pamphlet, depicting Satan as a dog with an ape face, horns, and a whistle around his neck.

 

Sources:

The pamphlet’s full name is The examination and confession of certaine wytches at chensforde in the countie of essex : Before the quenes maiesties judges, the xxvi daye of july, anno 1566, at the assise holden there as then, and one of them put to death for the same offence, as their examination declareth more at large, printed 1566. London, By Willyam Powell for Wyllyam Pickeringe.

Secondary sources to be posted this evening!

The Trial of Catherine Hayes

 

This week’s episode focuses on the trial of Catherine Hayes, convicted of murdering her husband and executed for it in 1726.

Catherine Hayes was accused, along with two men, of murdering her abusive husband. The facts are just as fascinating now as they were in 1726. Spoiler alert: we’ll see a preserved (pickled?) head, allegations of adultery and incest, and a horrifying botched execution.

Catherine Hayes and the two Thomases, decapitating Mr. Hayes. I was wrong about Catherine holding the candle – instead, she is depicted pointing to the infamous pail in which the head would go. Note also the wine on the table.

 

We’ll then try to avoid being historical voyeurs–only interested in cases for their scandal and dramatic value–by focusing on what this case tells us about women who killed their husbands in the history of murder. We’ll see how contemporaries thought this crime was unnatural and motivated by lust and lewdness – much like other crimes committed by women. We’ll also see once again that the common law seems to have had no way to take into account a woman’s abusive situation in determining her guilt when it comes to petty treason. 

Note: If you do check out the case on the Old Bailey Online and the Ordinary’s Accounts, Catherine’s name is spelled differently in certain places. Your best bet is to search for Thomas Billings and find her in the associated records.

(Wo)manslaughter


 

Today’s episode looks at women in the history of murder.

First, we’ll see how the law of murder applied differently to women than it did to men. One big difference is the fact that women weren’t eligible to plead benefit of clergy until 1691, which meant they were (essentially) unable to be convicted of manslaughter. This is a drag for women who kill others through negligence and who are then executed for it. On the flip side, women could “plead the belly,” meaning that they could have their date of execution postponed if they were pregnant.

Then, we’ll look at early-modern ideas of female violence. While women were stereotypically associated with sneaky killing and poison, we’ll see some women were entirely willing to beat the crap out of people in the public with their bare fists.

Finally, we’ll look at the notion that it was a form of treason, and not just murder, when a wife killed her husband. This crime, called petty treason, carried with it the horrific punishment of burning women alive.

Notes on sources:

  • I encourage everyone and anyone to check out the Old Bailey Online!
  • Garthine Walker’s wonderful book is Crime, Gender and Social Order in Early Modern England (Cambridge Studies in Early Modern British History). Cambridge: Cambridge University Press, 2003.
  • I also recommend Ruth Campbell (1984) Sentence of death by burning for women, The Journal of Legal History, 5:1, 44-59. 
    • If anyone knows more about how the practice of burning women to death started, please let me know!
  • For anyone looking to learn more about Catherine Hayes, search the Old Bailey and check out this descriptively-named pamphlet:

A narrative of the barbarous and unheard of murder of Mr. John Hayes, by Catherine his wife, Thomas Billings, and Thomas Wood, on the 1st of March at night Wherein every minute Circumstance attending that Horrid Affair, and the wonderful Providence of God in the Discovery of the Actors therein, are faithfully and impartially related. Together with the Examinations and Confessions of the said Thomas Billings and Thomas Wood before several of His Majesty’s Justices of the Peace. As also the Copy of a fictitious Letter that Catherine Hayes sent, as from her Husband, to his Mother in Worcestershire after his Death; and the Mother’s Answer thereto: With some Account of the wicked Life and Conversation of the said Catherine, and likewise of those of Thomas Billings and Thomas Wood. To which are prefix’d, Their true and exact Effigies, drawn from the Life, and curiously engraved on Copper. Published with the Approbation of the Relations and Friends of the said Mr. John Hayes, 1727.” •              ImprintLondon : printed for, and sold by Thomas Warner at the Black-Boy in Pater-Noster-Row, E Nutt at the Royal Exchange, A. Dod at the Peacock without Temple-Bar, and by the Booksellers of London and Westminster, [1726]:  

Episode 5: Felony Murder and Constructive Malice

 

Today we take a whirlwind tour through the controversial topic of felony murder and constructive malice!

In today’s episode, we ask whether it is murder when someone kills someone else unintentionally but during the course of a serious crime (or a felony). Normally killing has to be intentional to qualify as murder – but does the criminal context change this rule? For instance, is it murder when a robber accidentally shoots a cashier during an armed robbery? What about when a kidnapper smothers someone by accident while kidnapping them?

Some modern common law jurisdictions are deeply divided on this topic, and we’ll see why after looking at felony murder’s chaotic history. We’ll see early-modern common law superstars butt heads over obscure examples (is it murder when you go poaching but your arrow goes astray and kills a boy lurking in a nearby bush?). We’ll also see how an early-eighteenth century attempt to clear things up just muddles it even more and ultimately gives us the term “felony murder.” We’ll ask what’s so constructive about malice anyways. And finally, we’ll see how theory and practice never quite seem to match up in this bizarre area of the law.

Warning: modern terms for what we’re discussing today vary, particularly in the USA. Depending on the jurisdiction, you can find felony murder under a variety of names and degrees.

Got any comments on felony murder? Think I didn’t come down hard enough on the doctrine, or conversely, that I was too critical of it? Send me your thoughts on our contact page or @murderhistorian on Twitter!

Be sure to subscribe on your podcast app. Click here to subscribe to Apple Podcasts, Spotify, and Google Podcasts. Follow us on Twitter @murderhistorian.

Sources and notes:

  • Guyora Binder’s article, “The Origins of American Felony Murder Rules,” Stanford Law Review, Oct., 2004, Vol. 57, No. 1 pp. 59-208 is the fullest history imaginable on this topic. If you’re wondering what happened in the 19th century, go to Binder!
  • See Glanville Williams, “Constructive Malice Revived, “The Modern Law Review,” Vol. 23, No. 6 (Nov., 1960), pp. 605-629 for an explanation of why DPP v Smith was wrongly decided.
  • Felony Murder as a First Degree Offense: An Anachronism Retained, 66 Yale L.J. (1957) is interesting, especially for its description of how felony murder became a first-degree murder offence in early post-Revolutionary USA
  • If you’re wondering about the common-law felony “mayhem” (as I certainly was), check out this recent blog post from legal historian Gwen Seabourne

 

 

Episode 4: Unintentional Killing

 

Welcome to today’s episode on unintentional killing! 

We all know (now) that if you kill someone intentionally, it’s murder. But is it ever murder when someone kills someone else unintentionally?

Today, we look at a whole range of unintentional killings and ask whether they’re murder, manslaughter, or sheer accident. Is it murder if you mean to kill one person but end up unintentionally killing another? What is it when you mean to give someone a little push or slap and end up killing them by accident? What if you mean to hurt someone really badly but end up killing them instead? And what if you just do something really stupid and kill someone by mistake?

Murder weapons vary widely in this episode. We’ll see a man who tried to poison his wife with an apple, a blacksmith who killed his apprentice with a bar of iron, a roofer who killed a pedestrian with a shingle, and a provoked man who killed a woman with an unlucky broomstick throw. 

Warning: modern terms for what we’re discussing today vary widely, particularly in the USA. Depending on the jurisdiction, you can find not only different degrees of murder, but also degrees of manslaughter, as well as terms like felony murder and depraved heart murder.

Be sure to subscribe on your podcast app. Click here to subscribe to Apple Podcasts, Spotify, and Google Podcasts. Follow us on Twitter @murderhistorian.

Sources and notes:

  • Today’s story about the boys on the overpass is inspired by a real-life modern case. You can read a news article about it here and here. In this case, the boys brought things to the overpass to throw off it and they aimed at hitting the cars. The boy who threw the fatal rock pleaded guilty to second-degree murder and the others pleaded guilty to manslaughter.
  • These boys shouldn’t be singled out though. Edward Coke and Matthew Hale, writing in the seventeenth century, also talk about people throwing stones into crowds. And there’s there notorious English case, R v Hancock and Shankland (1985), where two grown men dropped a concrete block on a road and killed a driver. In their defence, they said they only meant to intimidate the person in the car, not to kill anyone.
  • The blacksmith and the broomstick case are reported by Kelyng. The comment about the box on the ears and the blow with a little with a stick are from Holt, in Mawgridge’s case. The story about the servant who shoots into the cornfield is from Hale. Kelyng and Hale both talk about the case with the roofer throwing tiles off a roof. The poison apple case is from Plowden. 
  • While I refer to the idea of “great” or “grievous” bodily harm, the term doesn’t appear consistently in the law until the nineteenth century. Nonetheless, the idea of intending to do harm that’s likely to kill someone is distinguished from the idea of doing a little bit of harm much earlier than that. And Michael Foster writing in the mid-eighteenth century, emphasizes the distinction.

Michael Foster (1689–1763) – new century, new judicial hairdo. Foster is another one of my favourite sources on the history of murder.

 

 

 

Bonus episode: Insults!

 

Today’s bonus episode is on insults. It looks at which insults were considered to be the most provocative in the 17th century. We’ll see that courts were willing to excuse men who flew into a homicidal rage upon having their noses tweaked, being jostled, having the wall taken from them, and being “filliped upon the forehead.” We’ll also see one of my favourite cases, which involves a leek, a Welshman, a scarecrow, and a hammer. Finally, we’ll see these insults in action by looking at Act 1 Scene 1 of Romeo and Juliet.

If you like the podcast, please be sure to subscribe on your podcast app and give us a review! You can follow us on Twitter at @murderhistorian and check out the website at https://www.historyofmurderpodcast.com/

 

Listen on Apple Podcasts

 

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. https://doi.org/10.2307/j.ctvrdf1qb.8.
  • 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).

 

Sources

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)!