Papers by Elizabeth Papp Kamali
Using a miracle tale as a focal point, this paper illuminates the political and cultural context ... more Using a miracle tale as a focal point, this paper illuminates the political and cultural context of York at the turn of the twelfth to thirteenth century in order to make sense of England's rapid transition from trial by ordeal to trial by jury after 1215. More specifically, the paper highlights the possible impact of the period of papal interdict (c. 1208 – 1214), imposed by Pope Innocent III in response to King John's intransigence over the appointment of a new archbishop of Canterbury, during this transitional period in criminal procedure. It argues that the interdict, with its suspension of liturgies, might have forced experimentation with alternative means of reaching verdicts in felony cases. The paper also suggests that juries might have been involved in the issuance of ordeal verdicts in the late ordeal period in England, in which case the shift from trial by ordeal to trial by jury may be less a moment of rupture than a transition from one form of trial using juries to another, albeit a trial form more starkly desacralized after 1215. It is the author's hope that the paper will serve as a starting point for further research, not a decisive answer to the questions it raises, including whether England's rapid adoption of final jury verdicts may owe something to the tussle between King John and a particularly imperial and imperious pope.
During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juri... more During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.
Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, Englan... more Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, England moved definitively toward a criminal justice system based on trial by jury. This paper will explore the underlying assumptions of king, council and justices at the time of the criminal trial jury’s introduction (c. 1220) as to the jury’s precise function within a prosecutory system that countenanced only capital sanctions for those convicted of felony. Unearthing these assumptions will require careful consideration of earlier ordeal procedure and other kinds of juries in the late twelfth and early thirteenth centuries, most notably juries of presentment, coroners’ inquests, and juries tasked with responding to writs de odio et atia. It will also require situating trial by jury within the broader context of felony adjudication with its manifold escape valves, including benefit of clergy, sanctuary, abjuration and pardons. The paper will rely on a re-examination of primary source materials and engagement with the existing secondary literature to grapple with the broad questions of what constituted serious criminal wrongdoing, what jurors were expected to know and do in adjudicating felony cases, and the extent to which jurors’ verdicts were based on knowledge or belief in the guilt of an individual, as opposed to such factors as reputation, rumor or expected recidivism. With regard to the issue of jury independence, the paper will query whether juries engaged in unilateral nullification of the law, or whether verdicts that appear to be contrary to the law reflect instead a consensus of judge and jury. Related to this is the macro-level question of what constituted the law, including the related matters of how jurors were to know the law and respond to it. As a think piece, this paper will test several hypotheses regarding problems fundamental to the history of English criminal law, some of which may prove unresolvable.
Through a close textual reading and contextual analysis of a short series of early fourteenth-cen... more Through a close textual reading and contextual analysis of a short series of early fourteenth-century manorial court roll entries, this paper draws larger conclusions about the interplay between law and equity in a medieval English manor court. It follows a narrative thread focused on a single tenement, which was forfeited by a villein in 1317 due to his fugitive status. The forfeiture was described as permanent in the Great Horwood court roll, and the tenement was transferred by the lord to a new tenant immediately. However, over a decade later the villein’s widow successfully claimed dower in the tenement, and shortly thereafter her son succeeded in regaining the family’s possession of the purportedly forfeited land. The paper reveals the presence of competing interests among various members of the Great Horwood community; the selective marshaling of written evidence, manorial custom, and common law rules; and the exercise of equitable discretion in selecting the “rightful” tenant, possibly guided by extra-legal factors, such as the exigencies of famine. The paper also makes a methodological claim, arguing that a combined textual and contextual analysis of fragmentary evidence can reveal insights that might not come to light through other analytical approaches.
This paper explores the meaning of the word “felony” in thirteenth and fourteenth century England... more 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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Papers by Elizabeth Papp Kamali