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A Felonious State of Mind: Mens Rea in Thirteenth- and Fourteenth-Century England

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A Felonious State of Mind: Mens Rea in Thirteenth- and Fourteenth-Century England A Felonious State of Mind: Mens Rea in Thirteenth- and Fourteenth-Century England by Elizabeth Papp Kamali A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (History) in the University of Michigan 2015 Doctoral Committee: Emeritus Professor Thomas A. Green, Co-Chair Professor Charles Donahue, Jr., Harvard Law School, Co-Chair Professor Katherine L. French Associate Professor Diane Owen Hughes Associate Professor Catherine Sanok © Elizabeth Papp Kamali, 2015 DEDICATION In memory of Robert Richard Papp (1923-1998) and in honor of the eightieth birthday of Judith Ann Papp. ii ACKNOWLEDGMENTS It is with a grateful state of mind that I recall the many individuals who read drafts of chapters and provided feedback in workshops, conference sessions, and colloquia. Tom Green, my intrepid advisor, read every word of every chapter, in some instances many times over, and discussed the trajectory of this project during long walks along the Huron River and long sits in Aikens Commons. Charlie Donahue, a mentor of mine for over two decades now, helpfully guided me in all phases of the project, serving as an especially helpful resource as I ventured beyond the common law into matters literary and ecclesiastical. Diane Owen Hughes provided tremendous cultural context for my project during my time preparing a comprehensive exam field with her, as well as through the more recent writing process. Kit French helpfully joined the Michigan History faculty just as I was assembling my dissertation committee, and her insights into parish life and material culture have proven invaluable. Cathy Sanok’s expertise on all matter of vernacular literature helped me avoid the pitfalls that might otherwise befall a legal historian venturing into literary minefields. Any errors, of course, remain my own, and not those of my illustrious committee members. I owe a debt of gratitude to the participants in the workshop on Criminal Responsibility and Its History held at the University of Minnesota Law School in 2012, and in particular to Antony Duff and Lindsay Farmer for their formal comments. I am also grateful to the participants in the University of Michigan History Dissertation Workshop, especially Leslie Pincus, Tara Dosumu Diener, Aston Gonzalez, and Josh Mound. The Medieval and Early Modern Studies Dissertation Workshop was so immensely helpful that I took it a second iii consecutive year to workshop further chapters; Alison Cornish might be counted an honorary dissertation committee member in light of the sheer volume of my dissertation that she thoughtfully critiqued, and thanks are due as well to Alice Sullivan, Leann Wilson, Helena Skorovsky, Sarah Linwick, and Alessia Salamina. Karl Shoemaker provided insightful commentary on my felony paper during the Preyer panel at the American Society for Legal History conference in Miami, Florida. Portions of chapters also benefited from discussion during conference sessions at the Medieval Academy meeting in Knoxville, Tennessee, and at the International Congress on Medieval Studies at Western Michigan University in Kalamazoo. In developing my chapter on anger, I received helpful suggestions from participants in the American Society for Legal History Pre-Conference Workshop on Medieval Legal History in Denver, Colorado, with particular thanks due to the organizer Lena Salaymeh, commentator David Seipp, and fellow paper presenters Tom McSweeney and Rowan Dorin. Anger management, or management of my chapter on anger, was helpfully proffered as well by the participants in the conference on Emotions in the Courtroom held at the University of St Andrews in 2015, with particular thanks to John Hudson, Kimberley Knight, Susanne Pohl- Zucker, Bill Miller, and Stephen White. This chapter was also workshopped at the Premodern Colloquium held at Ruth and Tom Green’s home; this colloquium early on became an intellectual home for me in Ann Arbor. Thanks are due as well for feedback on my felony chapter to the faculties of the University of Kentucky College of Law, University of Virginia Law School, Columbia Law School, Harvard Law School, and Boston College Law School, especially Jen Bird-Pollan, Rachel Harmon, Olati Johnson, Ken Mack, Janet Halley, Adriaan Lanni, Dan Coquillette, and Mary Bilder. Remarkably generous with their time, Paul Brand, Susanne Jenks, Jim Whitman, iv Bruce Frier, Gabe Mendlow, Dick Helmholz, Rabia Belt, Jonathan Rose, Dan Smail, Nicholas Watson, Joseph Goering, Sheree Brown, Ben Graham, and Yanay Israeli all offered constructive guidance and feedback on various portions of the dissertation. If it is possible to express gratitude to a website, then I owe a special tribute to The Anglo-American Legal Tradition, available at aalt.law.uh.edu, otherwise known as AALT. Without the remarkable labors of Robert Palmer, Elspeth Palmer Rosbrook, Susanne Jenks, and other patient photographers and generous financial backers, I would not have been able to undertake a project of this kind from my homebase in Ann Arbor. And while I am on the topic of my Ann Arbor homebase, I close with a word of recognition for my unparalleled home team: my spouse, Masoud, and our children, Aidin and Anahita. They have walked the long road of my law and history studies with me, alternatively holding my hand supportively and tugging it insistently, reminding me that there exists a world beyond medieval felony. v TABLE OF CONTENTS Dedication ...................................................................................................................................... ii Acknowledgments ........................................................................................................................ iii Abstract ......................................................................................................................................... ix Chapter One. An Introduction to Medieval English Felony Law .............................................1 A Brief Chapter Summary ...........................................................................................................9 The Essentials of Medieval English Felony Procedure .............................................................14 The Historiography of Trial by Jury ..........................................................................................22 The Slow Fade (or Rapid Loss?) of the Ordeal .....................................................................27 From Ordeal to Jury: The Search for Antecedents ................................................................35 The Issue of Jury Composition ..............................................................................................45 The History of Criminal Intent and Felony ............................................................................50 Methodology and Sources ..........................................................................................................58 Legal Treatises .......................................................................................................................60 Legal Records ........................................................................................................................60 Year Books .............................................................................................................................63 Extra-Legal Sources ...............................................................................................................64 Chapter Two. Felonia Felonice Facta: Felony and Mens Rea in Medieval England ............67 Introduction ................................................................................................................................67 The Meaning of Felony ..............................................................................................................72 In Defense of Coke: A Quick Summary of Felony’s Etymology ..........................................76 A Closer Look at Felony as a Legal Term of Art ..................................................................79 Crafting a Definition of Felony ..................................................................................................86 Deliberation, Maturity, Sanity ...............................................................................................87 Exercise of Will and Absence of Necessity ...........................................................................97 Wrongful and Essentially Wicked .......................................................................................108 The Nexus Between Actus Reus and Mens Rea .......................................................................119 A Felonious State of Mind .......................................................................................................124 Importance of Assessing State of Mind ...................................................................................128 Conclusion ...............................................................................................................................134 vi Chapter Three. Þe Deuylys Doghtyr of Hellë Fyre: Anger in Felony Adjudication ............137 Introduction ..............................................................................................................................137 Methodology ............................................................................................................................140 The History of Emotion ...........................................................................................................144
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