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Account for the emergence of the murder/manslaughter distinction in the 16 th century?
By the late 16th century murder and manslaughter had come to be recognised as two substantive offences. Coke identified these two separate classes of culpable homicide, defining murder as, "when a man...unlawfully killeth...any reasonable creature...with malice forethought, either expressed by the party or implied by law" and manslaughter as being done, "upon a sudden falling out". The main differences between these offences was that murder was based upon malice aforethought (premeditated killing), and as such was a nonclergiable offence, and manslaughter arose spontaneously from hostilities between parties, and hence was clergiable. It is submitted that there were several factors which contributed to the emergence of the murder/manslaughter distinction, primarily the pardon statute of 1390, the clergy statutes of 1512 and 1531, and the decline of the chance medley test. By 1390 there was essentially a clear distinction used in practice, but this disappeared with the failure of the statute of pardons. In the Tudor period that distinction was essentially revived in a series of key criminal statutes. In post-Conquest Britain all forms of killing became indiscriminately capital offences. Prior to the 12th century, as Milsom identified, the term 'murder' commonly meant wicked homicides - those for which the population believed the killer should forfeit his own life. For centuries jurors frustrated the law of homicides, believing that not all homicides should constitute capital offences. In cases of these 'lesser' homicides the jury would tend towards acquittal of the defendant. By the end of the 14th century there was a high acquittal rate for lesser homicide defendants. The pardon statute was introduced by parliament in 1390 to reduce the scope of the general pardons. Baker places importance on this statute because it generated not only a distinction between felonious and excusable homicide, but also caused a bifurcation of felonious homicide. For example, it was enacted that such a pardon did not extend to murder or 'killing by lying in wait, assault or malice aforethought'. Henceforth, it was essential in drawing indictments, to make a distinction between 'murder with malice aforethought' and other forms of felonious homicide. The main 'other form' of felonious homicide was chance medley (chaude melee) which meant 'a killing in the course of a spontaneous quarrel'. Green has demonstrated the importance of drawing the indictment correctly - acquittal rates were much lower in cases termed 'murder' than for cases concerning other homicides. Although the pardon statute created a form of murder/manslaughter distinction this bifurcation was short lived. It is doubtful whether the statute was observed after 1430 and so distinction between felonious homicides became, once again, unnecessary. By the later 15 th the justices of the peace adopted a standard 'malice aforethought' form in all homicide indictments - 'the suspect made an assault, struck and feloniously slew and murdered the deceased'. Kaye interprets this to mean that 'murder' was no longer 'a term of art', and its meaning, 'had reverted to the broad general descriptive name for culpable homicide of any kind'. The distinction was lost. Even though the formal distinction between murder and manslaughter had disappeared, the will of the populus (that some types of murder were less culpable than others and should not result in a death sentence) was evidenced by the actions of the jury. Throughout this period jurors attempted to assist defendants by finding their homicides excusable, which led to an automatic pardon from an early date. Even though these categories of homicides were closely defined and governed by strict rules, Milsom has highlighted that, 'surprisingly large numbers were said to have been cornered by their dead assailants in pedantic satisfaction of the rules'. However, jurors gradually lost control over case results as their character as 'the witnesses who supplied the facts' dwindled. Although jurors could still apply their own standards through a blank 'not guilty' verdict, this became exceptional rather than regular. 1
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