I was doing some reading around on the modern law of homicide in England and Wales, for comparisons with the early modern situation, which led me to some rather interesting places. One was the Law Commission’s 2004 report on partial defences to murder, which came with a set of appendices. One (appendix C) is a really interesting survey of attitudes to mitigating circumstances in homicides. Another (appendix G, from p.288 in the text/179 of 204 in the file) is described as ‘a sociological history of provocation and diminished responsibility’. I read on with some curiosity; and I have to say, it looks a lot more like a fairly standard legal history than ‘sociological’ history to me.
For example, it spends a fair amount of space discussing ‘chance medley manslaughter’. The odd thing about this particular (and particularly early modern) category of homicide is that although it often comes up in the contemporary law texts, and legal historians do write about it quite a lot, you won’t find much about it in work by social historians based on court records.
To be sure, if you rely on late 16th- to early 18th-century law texts as your sources, this emphasis on chance medley is quite reasonable. Nearly all the ones I’ve read so far define chance-medley as ‘killing in a sudden quarrel’ and equate it with manslaughter, and discuss it at some length (e.g., Lambarde’s Eirenarcha, late 16th century; Coke’s Institutes, early 17th century; Hawkins, Treatise of the pleas of the crown, early 18th century; later in the 18th century, Blackstone seems to confuse it with self-defence, which was something else again). And it’s quite true that in the courts those circumstances – killing in ‘hot blood’ in the course of a spontaneous brawl – would indeed tend to result in a manslaughter verdict (eligible for benefit of clergy, so the convict was rarely executed).
The only clear exception I’ve found so far – but it’s quite an important one! – is Matthew Hale (in both his History of the pleas of the crown (written before 1676 but not published until 1736) and Methodical summary (1678)). He equates chance medley with homicide per infortunium (by ‘misfortune’ or accident) and, moreover, explicitly distinguishes it from manslaughter.
Curiously, the legal historians discussing chance medley never seem to refer to Hale, but his view looks to me like a more accurate representation of courtroom practice, probably well before the 1670s and certainly after that: i.e, ‘chance medley’ and ‘manslaughter’ were two separate things. Homicide per infortunium was a pretty rare verdict by the 17th century – it had been much more significant in medieval courts, under very different laws on homicide – and had a quite different legal status from manslaughter (it resulted in an automatic pardon).
I have very occasionally come across ‘homicide per infortunium’ verdicts in the 17th-century Welsh and Cheshire records. I can’t, however, recall or find in my databases any mention of the term ‘chance medley’. Meanwhile a keyword search turned up just 8 instances in the much larger Old Bailey Proceedings Online, dating from 1676 to 1742. And here it’s Hale’s definition that seems to be in use (particularly clearly so in the judge’s summing up in the 1742 case, I think).
I may want to follow this up and see if other court archives do in fact support this argument (I could look at the published calendars of the Home Circuit assize records, for example, which would also take me back to the mid-16th century so I could look for any shifts in practice). If I have time. But assuming that they do, I’ve got to wonder why there should be this divergence between legal doctrine (in most texts) and what was happening in courts. It’s an interesting little puzzle thrown up by differences between sources that tend to be used by different sorts of historians.
Like Hale, many of the writers were judges or (I think) lawyers reporting judicial decisions. (I don’t really know enough about how and by whom these texts were produced, though.) But were they simply tending to repeat and reify a definition – itself a 16th-century innovation – that had in reality already fallen out of use? Could this turn on some sort of conflation (which crops up in a number of sources) of ‘chance medley’ with the French term ‘chaud melee’? Any ideas, anybody?