By Krista J. Kesselring, 10 October 2019
Early modern coroners and their juries appear to have had extraordinarily high success rates in identifying killers for the people they deemed to be victims of homicide. Modern commentators sometimes assume that the coroners failed to hold inquests on the corpses of people who died from covert killings or that the coroners and their juries were unreliable in determining the real cause of death; detecting ‘death disguised’ was indeed a challenge, one for which people often invoked providential, divine aid. But the issue of secret slayings aside, it’s striking just how frequently coroners’ juries named a killer in cases they did determine to be criminal killings. One does find the occasional record of an inquest that attributed a death to unnamed robbers or other persons unknown, but not often.[1] Given modern ‘clearance rates’—the proportion of offences with a charge laid, irrespective of the final verdict—the apparent early modern success might warrant a raised eyebrow or two.
In England and Wales, clearance rates for homicide in the relatively recent past—in the three years ending in March 2016—have ranged from about 81 to 91%.[2] That is, for 81-91% of deaths thought to be criminal homicides, police laid charges against a suspect. In Canada, where I live, national rates have ranged from 75 to 95%.[3] In the USA, it’s even worse: slightly fewer than 60% of homicides in 2016 resulted in charges being laid.[4] Can sixteenth and seventeenth-century coroners and their juries really have been not just as good but even better at identifying killers than their modern counterparts?
True, gang-related homicides and firearms fatalities—which police often find the hardest to solve—are far more common now than in the early modern era, and our cities are much larger and more anonymous. But we also have professional police forces that draw on state-of-the-art forensic techniques, dense webs of CCTV surveillance, etc. Both the types of homicides committed and methods of detection change over time, with effects that do not necessarily tend in the same direction. But might the apparently high ‘clearance rate’ of early modern law enforcement be a product of practices that lay hidden behind the records and our uses of them?
The collections of coroners’ inquisitions we have may well underrepresent unsolved crimes. For the most part, the records that survive were ones that coroners sent in to the central Court of King’s Bench for further process (e.g., on outlawries for named offenders who couldn’t be found for trial) or submitted to the county assizes to serve as indictments for offenders who were available to be tried. Other inquisitions may well have been produced but not saved. Some inconclusive inquests may never have resulted in records at all.
Perhaps we need to rethink acquittals, too. While coroners in the pre-modern past identified killers in almost all cases for which we have records, the acquittal rates at trials were exceptionally high, hovering around 40% in the late sixteenth century: high clearance rates accompanied high rates of acquittal. We usually attribute these high acquittal rates to the undoubted fact of trial juries trying to moderate the blunt force of the gallows, letting some people they knew to be guilty off rather than nudging them towards the noose. But perhaps a slightly higher proportion of these acquittals than we usually allow may have occurred because of the genuine innocence of the accused and errors made by coroners.
Or maybe early modern coroners and their juries really did just have more success than some modern law enforcement regimes in identifying killers. The types of killings most often committed, the smaller sizes of the communities involved, and the communal, participatory techniques of investigation may well have enabled high rates of detection. I don’t have an answer to my own questions here, and just raise them, in part, to see if others have thoughts—one of the nice possibilities afforded by a blog. But I mention them in part, too, as they prompted me to revisit the ‘fictitious killers’ of the early modern courts, which in turn raised a new question or two.
When J.S. Cockburn published his ever-so-useful and revealing calendars of the assize court records that survive from the Home Counties from c. 1558-1625, he exposed the practice of early modern trial juries naming entirely and blatantly fictitious killers. Trial jurors who wished to acquit a person sometimes did so with a note that someone else had done the deed: they attributed the killings to people with names such as John a Love, John at Death, John a Noke, John a Style, John in le Winde, John over the Moon, William Death, or (my favourite) William Nemo. Cockburn suggested the jurors who wished to acquit someone had either to craft an alternative story about the killing (e.g., depicting it as self-defense) or else to name a different killer.[5]
But is there something more to the fictitious killer than that alone? For a project on the history of homicide, Anne Cummings—a heroically patient and talented research assistant—had helped me produce a database of a few thousand homicide inquests and indictments. Wondering about this question of clearance rates, I pulled out of the database the subset of records for cases in which juries ultimately identified a clearly fictitious culprit. The new dataset includes records for 40 people charged in the deaths of 39 victims. In these cases, the fake names almost always appeared at trial, not at the inquest or indictment stages, so they do little to address my initial question about clearance rates.[6] But they do produce a few surprises.
The fictitious names appeared in very few of the many acquittals. And the cases in which they did appear overwhelming consisted of killings within the household—that is, the killings of infants, children, servants, and the occasional spouse or brother. Women were disproportionately represented amongst the people first accused of the deaths: 14 of the 40 people charged in these cases, or 35%, were women, compared to only 20% in the larger dataset of homicides. Of the 39 victims, 10 were adult women (some identified as servants to the killers). Four of the victims were children (2 female, 2 male). Nine were infants (1 female, 8 male). Almost all of the women charged had killed their newborns or servants. (Interestingly, too, the fake names were almost all male, save for one: a trial jury acquitted Frances Gargrave for the death of her infant son, instead identifying the killer as ‘Joan Astile’.)
Whereas adult men dominated amongst the total numbers of both killers and victims in the larger dataset of homicides, they accounted for only 16 of the 39 victims in these killings later attributed to fictitious killers. In several of these cases, moreover, we find extenuating circumstances of a sort. In three, the male victims’ names were unknown—they seem to have been strangers in the places where they died. One other of the male victims was the brother of his killer; one was killed by the husband of a woman he was assaulting; one died while trying to evade arrest; one died while trying to distrain the killer’s cattle. In most of the other cases with men as the purported killers, the accused were charged with having killed their children, servants, or in one case, a wife in what was said to be a mutual shoving match.
True, this isn’t a particularly robust dataset—40 is a small number, relatively speaking, and I may well have missed other cases attributed to fictitious killers if the fake names weren’t quite so obvious as these. (One might well have passed over ‘John Card’, for example, had the name not appeared after the trial of someone accused of killing her workmate with a wool carder…) But juries appear to have used the device of the purely fictitious killer very sparingly and most often in acquitting parents, masters, and mistresses—not just for any homicides they felt somewhat excusable, but mostly for household slayings.
Why? I don’t know. Nor do I know if I’m right to be suspicious of the extraordinarily high success rates suggested by surviving records for early modern coroners and their jurors, as compared to modern clearance rates. I recently wrote a book on the history of homicide from c. 1480-1680, but for me, these questions remain among the unsolved mysteries about early modern murder.
Main image: from the title page of Anon., A true relation of a barbarous and most cruell murther, committed by one Enoch ap Evan, who cut off his owne naturall mothers head, and his brothers. (London, 1633). Courtesy the Folger Shakespeare Library, shared under a Creative Commons Attribution-ShareAlike 4.0 International License.
Second image: from the title page of Thomas Cooper. The cry and revenge of blood. (London, 1620). Courtesy the Folger Shakespeare Library, shared under a Creative Commons Attribution-ShareAlike 4.0 International License.
[1] In my database of over 3400+ purported homicides from c. 1500-1680, only roughly 1% of the killings had no killer named. See also Matthew Lockwood, The Conquest of Death: Violence and the Birth of the Modern English State (New Haven, 2017), pp. 119, and 143. Noting the importance of witness testimony today, as in the past, compared to forensic evidence, Lockwood suggests that ‘it seems that there is little difference between the potential effectiveness of modern and early modern justice systems when dealing with known cases. In fact, in a number of regards, the early modern English justice system may have been more effective than its modern counterpart in the investigation of violent death.’ (Emphasis added.) For the emphasis on providential detection as a supplement to more mundane means, see especially Malcolm Gaskill, Crime and Mentalities in Early Modern England (Cambridge, 2000); see also Kesselring, ‘Detecting ‘Death Disguised’,’ History Today 56.4 (2006): pp. 20-27.
[2] https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/homicideinenglandandwales/yearendingmarch2017
[3] https://www150.statcan.gc.ca/n1/pub/85-002-x/2012001/article/11647-eng.htm#a3
[4] https://www.usatoday.com/story/news/2018/08/10/u-s-homicide-clearance-rate-crisis/951681002/
[5] James Cockburn, Calendar of Assize Records: Home Circuit Indictments, Elizabeth I and James I: Introduction (London, 1985), p. 113. Louis Knafla touches on the subject in his review essay on Cockburn’s work: “’John at Love Killed Her”: The Assizes and Criminal Law in Early Modern England’, University of Toronto Law Journal 35. 3 (1985), 305-20. As Cockburn notes, Matthew Hale referenced the practice in his History of the Pleas of the Crown (1736), II, 64.
[6] But see, e.g., Cockburn, Essex Indictments, Elizabeth I, no. 801, for a coroner’s inquest that named ‘John atte Style’ as the killer.
Legal History Miscellany 