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Medieval English law on self-defense

Just finished reading Thomas A. Green, The Jury and the English Law of Homicide, 1200-1600, 74 Mich. Law Rev. 413 (1976). Several interesting aspects.

As the period starts out, self-defense isn't much of a defense. The defender must prove that he did *everything* to avoid use of deadly force, and that it was an absolute necessity. At that, he would still be convicted, but upon the jury's recommendation, the judge would forward a request for pardon, and kings rubber-stamped them. The defender's property was still forfeited to the Crown, and he sat in jail until the pardon came back. Further, all intentional killings were the equivalent of first-degree murder. There was no second-degree, and no manslaughter (that didn't come in until Tudor times).

Juries, however, dealt with the problem. If a fellow was a decent citizen, they'd just acquit, no matter what the facts were. The court records suggest that England must have been full of hedges, unclimbable ditches, and walls, because jurors were constantly finding that self-defenders had retreated to one and been unable to escape. :Nearly every act of self-defense was said to have been undertaken by a cornered defendant: ditches, walls, and hedges had constrained the fleeing defendants at every turn. Moreover, all juries, when questioned by the incredulous bench, tenaciously repeated these assertions." 14th century records show findings of self-defense in over 50% of some sets of trials. One case involved an attacker who hit the defender with a bow, and when it broke, continued to hit him with one of the broken staves. The judge questioned the jury as to how the defender could have thought he was going to be beaten to death with that, but the jury stood by its findings. (Remember that without manslaughter, the jury's choice was find self defense or send the fellow to the gallows).

There was also at this period no doctrine for use of force to defend a third person, but when that came up juries just found that the defender was really defending himself.

(We also have to read this against the background that at common law there was a general privilege to use force to prevent a felony, so self-defense was only argued when the aggressor was not trying to commit robbery, rape, burglary, etc.).

· Self defense