Just doing a little preparation for a forthcoming paper, on mayhem (roughly, wrongful, serious but non-fatal permanent injury) and reminding myself of the relevant parts of everyone’s favourite thirteenth-century treatise, Bracton.
There is one truly bizarre section which I had forgotten all about. It is at II, 409, and it is tacked on to the end of a discussion of appropriate modes of proof in an appeal of wounding and mayhem. The discussion deals with one likely scenario, in cases of alleged serious but non-fatal injury, i.e. the case in which the defendant cannot defend himself by battle, because the person bringing the appeal is, of course, claiming a serious injury – which might be supposed to put him at such a disadvantage in terms of fighting, that even the God who fixed matters so that little, badly-armed David beat strapping man-mountain Goliath would consider it a bit tricky to let right prevail over might. So far, so unsurprising. Equally unsurprising is the explanation that, if trial by battle is ruled out, then the usual substitute would be trial by jury. Getting towards the odd bit, but still not especially odd, is the suggestion that, sometimes, jury trial itself will be unnecessary – i.e. when the defendant has made a confession of guilt to somebody in authority. In such a case, the record of the confession suffices to dispose of the case. But then we get into it, with the example of this which is given:
‘as may happen where one castrates another and acknowledges that he is seised of he testicles; he cannot make any further denial of the deed contrary to their
It is not completely gratuitous testicle-talk: there had been a discussion (rather indebted to Roman law sources) of the wrongs of castration just a few sections earlier on (at II, 408). It is, though, hard to understand why anyone would ‘acknowledge that he is seised of the testicles’. This strikes me as strange as a matter of language – seisin [and the Latin does use exactly this concept too] is a term and idea more regularly encountered in the context of land. It is certainly interesting to see (real) property words being used in relation to a pair of removed testicles, and brings to mind all sorts of interesting modern legal debates about the possibility of property in human bodies and body parts and products. Stranger yet, though, is the underlying idea that a person castrating a man or boy would keep the testicles. Should we be thinking about a bit of gloating immediately after the mutilation, or some sort of preserved trophy? Bracton, annoyingly, gives us no more. Not quite sure what I am going to do with this in my paper, but I don’t suppose I will be able to restrain myself from making some allusion to it. Never said I was classy.
[i] Thorne’s translation