Elizabeth Papp Kamali, Tales of the Living Dead: Dealing with Doubt in Medieval English Law, 96 Speculum 367 (2021).
Abstract: This paper focuses on the narrow issue of proof of death to open up a broader discussion of several interrelated themes regarding early common-law development: the fashioning of specialized writs and legal processes to deal with doubtful deaths in criminal and civil cases alike, the cross-fertilization of ideas about proof in canon law and the common law, litigants’ strategies in responding to and taking advantage of problems of proof, and the common law’s reliance on a combination of strict proceduralism and equitable flexibility to reduce the likelihood of false felony convictions or illegitimate outcomes in cases involving the right to possession of land. From the few records I have found thus far in the plea rolls, I tentatively conclude that felony homicide cases were not likely to proceed to trial and conviction where doubt existed as to whether a homicide had actually occurred. Beyond the criminal context, however, doubt about a death underlying a claim to landed property did not preclude adjudication on the merits. Drawing such insights from frequently terse legal records, this paper also highlights the problems of proof faced by medieval historians in making sense of our source materials.