Category Archives: mayhem

Oral mayhem and legal memory: interim thoughts on non-fatal injury

One of the areas which I am investigating this year is the appeal of mayhem, a particular form of ‘criminal’ procedure in English common law, from the medieval period (13th C) to the early 19th C, dealing with non-fatal physical injury. I gave a bit of an introduction to the project in this post. I am still working away at this, and this post is part of the process of making sense of some of the points which are emerging.

Some of the biggest ‘headlines’ so far are:

  1. The appeal of mayhem emerges in what looks like a rather messy and fitful way, in the 13th C, from a combination of pre-existing ideas about compensation for non-fatal injury and an excuse made by men who were at risk of having to engage in trial by battle, but who were not in a fit state to fight in this way.
  2. Certain sorts of injury were regularly noted as ‘counting’. These included fairly obviously hampering ones – loss of hands, arms, legs … but also (some) teeth and testicles … apparently directly linked to fighting ability.[i]
  3. The roots in fighting struck deep in the legal imagination, with accounts in ‘textbooks’ and judgments regularly featuring a nod to reduction in ability to fight as the thing defining the sorts of injuries covered by mayhem. This was the case down to the 20th C, in criminal cases which purported to summarise the old law. (It was, however, soon forgotten that we were talking about a particular sort of fighting, and this came to be expanded to a ‘defence of the realm’ idea, from the early modern period).[ii]
  4. Despite this persistent link with fighting in accounts of mayhem, plea rolls and law reports tell a different story. Women (who did not have to/ could not fight trials by battle) are occasionally to be seen bringing appeals of mayhem, either alone, or in conjunction with a husband, for injuries to themselves, and there does not seem to be any objection to this.

Adding to point 4, there are some cases from the 14th C which do two interesting things:[iii] They show that it was thought possible to base an appeal upon injuries which could not really be presented as having a link to fighting of any sort, and they were sometimes explicitly linked to some other functional damage. This post will introduce this group of cases: the ‘oral mayhems’.

The wrong sort of injury?

I should say straight off that some oral injuries were included in the standard lists of mayhems in treatises – Bracton, Fleta etc. did say that (some) teeth (i.e. the bitey ones as opposed to the grindy ones) were covered. They definitely did not include tongues, however. This makes a degree of sense in the fighting context: hard to see how a tongue would be particularly useful in combat (except in so far as it enabled the fighter to engage in provocative and destabilising insults, or to ‘cry craven’). Even so, there are 14th C cases involving tongues, including an appeal of mayhem which forms part of the mass of litigation surrounding the alleged attack on Agnes de Haldenby in the reign of Edward II.[iv]

Perhaps this was (or became?) controversial – certainly, there was a piece of legislation from the early 15th C which made intentional/malicious tongue-removal a statutory offence (with ‘the pains of felony’).[v] Nevertheless, it rather muddies that nice, clear, fighting-related list of injuries acceptable as foundations for an appeal of mayhem.

 

The wrong sort of justification?

I have found a couple of cases so far (both from the 1340s) which move us even further from the mayhem/fighting nexus. These involve men being bashed in the face, and suffering injuries to their teeth and mouths. Rather than attempting to present them as ‘loss of fighting teeth’ scenarios (the wrong teeth, perhaps?) they both reinforce the claim that the injury damaged the claimant by stating that it has impaired his ability to eat and to communicate.

For example, a set of entries relating to a Northamptonshire incident show that John Hunt of Stoke brought an appeal of mayhem against William de Duncote, alleging that William, on 22nd August, 1345, in the fields of Duncote, with a pikestaff. feloniously hit him in the mouth, knocking three front teeth out of his lower jaw  so that he lost much of his ability to chew, eat and talk.[vi] This was, arguably at least, ‘the right sort of injury’ – no doubt one could explore whether or not lower incisors counted, as well as upper ones, but let’s not – but the explanation was not in accordance with an idea of loss or reduction of fighting ability (except in so far as a person who can’t eat very well, or talk very well, will probably be undernourished and may be isolated and depressed – but that is all a bit indirect). I think we are seeing a wider conception of mayhem here – one which, if we extended it into the ‘public’ sphere, would end up looking rather more like a ‘burden on society’ type of damage  as opposed to the ‘loss of a defender of the realm’ line which has been picked up in modern commentary.

The other example so far found is in very similar terms,[vii] suggesting that this claim of impairment of communication and eating was ‘a thing’ in contemporary mayhem. It really does take us some way away from the idea that fighting ability lay behind this category and procedure, as actually used.

 

So what?

Ah, the eternal question … Well, it does ‘trouble’ the existing encapsulations of mayhem which one encounters in criminal law cases (like R v Brown),[viii] and which trace their roots in early modern accounts which themselves took medieval treatise accounts, as opposed to what actually happened, as ‘the law’.[ix] This matters from a ‘purist’ point of view, and for understanding of medieval history, ensuring it is not misrepresented to make ourselves feel better and less brutal etc. It may also matter from a more instrumental/practical point of view. The way in which the slightly mythologised view of mayhem comes up in modern law discussions tends to be in the ‘back to front’  context of the possibility of exculpatory consent to objectively physically damaging practices such as S & M sex or permanent body alteration. These may use arguments based on old statements that one could consent to low-level injury, but not to mayhem. Leaving aside the fact that some of the injuries involved would not have qualified as mayhems even if the treatise accounts represented ‘the law’,[x] it is notable that the ‘fighting’ line is maintained very strongly. These medieval cases seem to me to show that mayhem was not all about damage to fighting prowess. Now, I am not especially in favour of dredging up historical concepts to support modern policy decisions, but, if you are going to throw them into the mix at all, you should probably avoid over-simplification and comforting othering and contempt of the brutalised past. There was clearly rather more to the medieval law and practice on mayhem than fighting. Or testicles.

GS

7/3/2022

 

Image – OK a bit tenuous: a pike rather than a pikestaff, as is featured in the John Hunt case. But it does have teeth … This is a photograph from the Freshwater and Marine Image Bank at the en:University of Washington. Details here.

 

[i] That’s a bit glib, I know – definitely need to think about the testicle issue some more. Can’t say it’s one of my areas of expertise.

[ii] Big parallel with Krista Kesselring’s excellent Making Murder Public (2019) to be drawn, I think.

[iii]… well, I think they are interesting, anyway … yes, undoubtedly should get out more …

[iv] SC 8/83/4109A; CPR 1317-21 p. 292 (etc.); KB 27/241 Rex m. 2 (etc.); KB 27/244 Rex m. 5d. For more on this, see my book, Women in the Medieval Common Law – yes, shameless.

[v] st. 5 Henry IV c. 5. Note that the tongue cutting itself is not called a mayhem here – it is seen as more of a thing done after a ‘real’ mayhem, presumably to stop the victim from speaking out about it.

[vi] KB 27/344 m. 18d  (AALT IMG 8893) This trundles on until Michaelmas 1346, when John Hunt was ‘done’ for a false appeal (NB this does not necessarily imply that there was anything wrong with his cause of action, and, had that been the case, it would be odd to find other, strikingly similar, allegations).

[vii] TNA KB 27/346 m. 38d (AALT IMG 9774)

[viii] R. v. Brown (Anthony) [1994] 1 A.C. 212, at 231, 262.

[ix] Yes, I want to make it Coke’s fault again …

[x] Without going into it in detail, the nettles, hot wax and fish-hooks in Brown would hardly work, would they?

Bleeding Legal History

Rather later than many people, I have finally had a chance to have a good look at the latest delivery from the Selden Society – A.H. Hershey (ed.), Special Eyre Rolls of Hugh Bigod 1258-60 Selden Soc vols 131 and 133. These have been waiting for me in my pigeon hole at Bristol for a while, but I have only just been able to get into the Wills Memorial Building, after returning from my travels, to get my paws on them. As you will see from the image above, in my clumsy eagerness, I managed to injure myself during the ‘unboxing’ process. I managed to leave some blood spatters on one of the books, so my DNA is now on them, I suppose. Hard core legal historian or what?

The volumes are editions (and translations) of some eyre records (JUST 1/1187, JUST 1/1188 JUST 1/1189, National Archives fans) from sessions by Bigod, the justiciar, just after the big King-barons upheavals of Henry III’s reign, and they are well worth a look for anyone interested in this period, or in legal history generally.  From the point of view of my research, there are some interesting entries on non-fatal injury, and on pregnancy/foetuses, and, as ever, I remain interested in seeing the extent to which women are dealt with in the commentary, index etc.

So, a few points …

  1. There is some interesting stuff here about the use of querela procedure – complaints without the usual formal requirements. These are always really interesting, in that they feel like a bit of a window on to what people actually want the law to do. Obviously not unmediated, but less mediated. I have noted in the past that they are particularly useful for women, whose routes to justice were generally rather more constrained (e.g. I have mentioned this in relation to sexual abuse of various sorts, see here). The introduction to SS 131, at xxvii makes a good point about the limits to the freedom which was allowed when bringing this sort of action – clearly not possible wholly to contradict common law rules by going down the querela route. Still, they can be pretty informative.
  2. The introduction does also make special mention of women’s use of this process – see xlv – which is good to see. Dower/freebench features pretty heavily, and I found particularly interesting the section at xlvi relating to  Cecilia widow of William son of Roger of Hatfield and her freebench claim. Her case – no. 24 – engages with a manorial custom relating to freebench in Hatfield. The ‘upside’ was that it was relatively generous in extent – a qualifying widow became ‘life tenant’ of all of the lands her husband had held in the manor. The ‘downside’ was that the qualifying test was pretty strict. Not only did the widow have to remain chaste (which Cecilia claimed she had) but there had to be a surviving legitimate child with the dead husband. This is where Cecilia fell down: her son had died. Conceptually, I suppose I ‘get’ the rule: freebench was something of a ‘dower meets child maintenance’ concept here, it would seem. Still, though, it would presumably mean compounding the tragedy of a woman who had lost both husband and child. Interesting to see that in this case, she seems to have cut a deal with the other claimant to the land, and was not left with nothing. Manorial equity?
  3. There is some very interesting material relevant to pregnancy and foetuses. Intro p. xlvii and entry no 141 relate to a Bucks complaint of Sibil, wife of Roger Grey, knight, that she had been assaulted, in an attack on her husband, leading her to miscarry the child she was carrying, and to be unwell enough to have to stay in her bed for some time afterwards. There is a lot which is interesting about this case. First of all, the blows she suffered were alleged to have happened while she was trying to protect Roger, the main target of the beating – interesting from a gender roles POV, even if the editor is not convinced it is realistic in this particular case. Secondly, the miscarriage was alleged to have happened not at once, but three weeks after the attack. Very interesting in terms of causation, which is one of my current concerns. Apparently that was thought to be a plausible claim, despite what one imagines would have been the relative frequency of pregnancies ending badly. As Hershey notes, this is all quite interesting in terms of its relationship to the sorts of cases women were allowed to bring by appeal, but there is also more to unpack, I think, in terms of what it means for our understanding of contemporary views on pregnancy and the foetus. I am wondering what to make of the ‘confined to bed’ claim – was there a doubt that loss of the foetus in and of itself was the sort of harm which ‘counted’, and it felt safer to emphasise the harm to the woman?
  4. Also fascinating (and horrible) on pregnancy, foetuses etc is no. 126 at p. 120 ff: amongst the accusations against William of Rushton of Oxfordshire (and some henchmen) is the accusation of wrongful execution of a woman. Sarah of Islip was said to have been hanged for theft, without proper judgment, when she had a good explanation for her possession of the allegedly stolen goods (cloth) and when she was very pregnant. All sorts of interest here. Hershey concentrates in the introduction on the wrongful execution point, but the entry itself has some really useful passages describing late pregnancy, and, incredibly chillingly, on the idea that a woman facing execution might be resigned to her own death, but plead for those threatening her to cut her open (presumably after death?) and save her child. What an appalling scene that conjures up – and what a priceless insight into more than one issue relating to law, medicine and the (plausibly set forth) emotions and attitudes of a medieval woman.
  5. There is also some useful stuff on the mayhem/non-fatal injury front, including a case of partial blinding with, shall we say, an interesting alternative portrayal of causation (woman alleges she is thumped, causing her to lose sight in one eye; jury alternative explanation is that fumes associated with her brewing blinded her in one eye, and only one eye …am I wrong to be unconvinced at their good faith?) – p. 297 no 349.

 

(There are also lots of general land cases, procedure etc, for those who like that sort of thing, preferring their legal history a little less bloody …)

14/12/2021

GS

 

A few gems from a morning’s mayhem-ing

Recently, I have been doing some work on the appeal of mayhem – it’s one of my research leave projects (for a brief intro., see this post). The main content of this will be a survey of medieval material, but I am also very interested in seeing later attitudes to it, and what became of the appeal, and the concept of mayhem/maim after the medieval period. This morning turned up the following little gems …

  1. You can maim a wall. My interest is mayhem in the sense of particular sorts of damage to human bodies, though of course I am aware that there are less specific uses of the word than that encountered in appeals of mayhem. One comes across more general ideas of physical injury to humans in various places, and the ‘maiming’ of animals, in legal sources. Still, I was a little surprised to see that some leasehold covenants include promises by the lessee not to ‘maim’ walls – see Creative Foundation v Dreamland Leisure Ltd and others [2015] EWHC 2556 Ch. This certainly goes back to the 19th C. Don’t suppose I will be able to stop myself seeing how far back I can chase it …
  2. Disappointingly, there was not a judge called Mayhem J. Got very excited when a Lexis Library search suggested the existence of such a person – wouldn’t that have been splendid? Sadly, following the link to Sheffield Masonic Hall Co Ltd v Sheffield Corpn [1932] 2 Ch 17, I saw that it was in fact Maugham J.
  3. Much of criminal law found to be tedious … I do love the ambition and casual attitude of collections of the whole common law in one book, and was looking up a few references in Every Man His Own Lawyer (1776) when I came across the following passage:Since rather a lot of serious crime is statute-based, I suppose that’s you told, Criminal Lawyers!

 

GS

30/10/2021

Image: a wall, in perfect health. Photo by Joe Woods on Unsplash