At the moment, I have the great privilege of a year’s research leave from my job in the Law School. It is wonderful to be able to make some progress on a number of projects which have been gathering metaphorical dust during the last couple of years, during the constraints of the pandemic and the challenges of life and teaching in this period. So far, I have spent time working on ‘bastardy’ and ‘petty treason’, and will be writing up that work more formally later in the year. Now, though I am turning my research energies in another direction, looking at the medieval appeal of mayhem. As I do so, I thought it might be appropriate to write a quick blog post giving an outline of the area, and a few thoughts on why I think this is something worth examining.
So … explain the appeal of mayhem
Well, the appeal of mayhem was a legal action like this one, from a 1491 legal record, in which (to summarise) Walter Chapman prosecuted Thomas Preston and three others for having attacked him with staves and ‘clubbes’, hitting his legs (specifically his lower legs) and causing him to ‘lose the use’ of them. Assuming that there was such an attack, Walter, clearly, survived it (he alleged that it had happened ten years before). Now, he was seeking compensation for his injuries.[i]
The appeal of mayhem was a particular sort of legal procedure, for a particular sort of non-fatal injury. It was not an attempt to overturn a decision (a more modern understanding of ‘appeal’), but an individual prosecution. This appeal procedure was available in relation to serious criminal offences, including mayhem. The consequence of a successful appeal of mayhem was, a financial penalty, and a compensation payment to the successful accuser, though sources from the thirteenth century onwards are rather fond of noting that, in even earlier law, the principle of ‘member for member’ applied, condemning the convict to a mutilation fitting the crime.
So much for ‘appeal’; what is ‘mayhem’? It is now a word with a broad scope. It can suggest general violent disorder. Sometimes it is also used in a slightly softer sense, to indicate fictitious and twee transgression (see the sneering term ‘Mayhem Parva school’ for rural murder mysteries). Moving even further to the unthreatening end of its spectrum of meaning, it doesn’t strike us as inappropriate for use in the naming of the house band on The Muppet Show (Dr Teeth and the Electric Mayhem for anyone not versed in high culture), or a contestant on RuPaul’s Drag Race (one Mayhem Miller – thank you, internet). For the legal historian, however, the word also has a very specific meaning – a particular sort of non-fatal injury.
Fighting, tooth and nail (except, not nail)
Only certain sorts of injury counted as mayhems, though the list never seems to have been absolutely fixed. Those treatises and statements which try to set out the law here tend to give some specific examples, and also a more general explanation. The underlying connection between the injuries in question, and the justification for the involvement of royal justice, was often expressed as being that a mayhem damaged the fighting ability of the injured person. The thirteenth-century treatise Bracton puts it like this:
‘It may be said to be mayhem when one is rendered incapable of fighting … as where bones protrude from his head or a large splinter of bone projects… [or] a bone is broken in some part of his body, or a foot or hand, or part of a foot or hand, or a finger or other member is cut off, or where sinews and limb are crippled by the wound dealt, or fingers have become crooked, or an eye has been gouged out, or some other thing done to a man’s body whereby he is rendered less able and effective in defending himself.’[ii]
The context of this passage suggests that a male victim/accuser is envisaged, and later treatments of mayhem emphasise this. Jumping ahead to the eighteenth century, Blackstone is still putting the ‘weakening a fighting man’ explanation at the heart of things:
‘ For mayhem is properly defined to be … the violently depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself, or to annoy his adversary. And therefore the cutting off, or disabling, or weakening a man’s hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, are not held to be mayhems at common law; because they do not weaken but only disfigure him.’’[iii]
Nevertheless, there were appeals of mayhem in relation to injuries to women. Here, for example, is a record from 1407 of an appeal brought by a husband and wife against a man they accused of mayhem of the wife.
Probably unsurprisingly, one of the things which attracts me towards mayhem records is the potential they have for illuminating ideas about the treatment of women in medieval common law: why the omission in treatises, if they were understood to be covered and why the inclusion in practice if they were not supposed to be covered? After I have looked at a larger sample of records, I hope to be able to say more about when and how women came to be covered by the concept of mayhem: at the moment, it just seems important to note that they were.
It is worth thinking about just which parts of the body are emphasised in treatises as being necessary for an effective fighter. Hands arms and legs seem fairly uncontroversial, but I was a little taken aback at the emphasis on teeth. Bracton and other sources go to some trouble to set out which teeth ‘count’ and which do not, (molars no, incisors yes – because ‘such teeth are of great assistance in winning a fight’) but I have not seen anybody asking whether teeth should be covered at all. Apart from a flashback to the Muppet band, talk of teeth in the context of mayhem brings to my mind an example of biting in an account of late medieval judicial combat which I have, for years, inflicted upon undergraduate legal historians.[iv] Moving to a different part of the body, it is probably also worth spending a bit of time trying to unpack ideas about just how the loss of testicles was understood to impede fighting ability (other than in the initial shock of removal) as castration also seems to come up quite a bit in treatise accounts of mayhem (though it is not prominent in plea rolls). Blackstone’s slightly euphemistic account sees things in terms of a connected lack of courage, and ties human to animal fighting capacities in a rather interesting way. I would like to see what the mayhem material can tell us about the development of thought on this point.
Another intriguing facet of the ‘damage to fighting capabilities’ idea is the movement between sources on the question of what ‘fighting’ means. Bracton may be suggesting fighting in the sense of the judicial duel – trial by battle.[v] On that interpretation, the appeal of mayhem is about dealing with damage to the individual’s ability to protect his own interests. Other sources suggest a more ‘public-spirited’ interpretation – the idea that the wrong and damage of mayhem lay in depriving the king of a potential fighting man. It certainly came to be thought about in this way in connection with ‘self-mayhem’ situations, in which an ‘idle’ poor person might be imagined to cut off some body part in order to beg more effectively, or a soldier might do himself an injury which would mean he could no longer fight.[vi] Tracking this movement could add something to ideas about crime and law enforcement in general, and the movement between ‘private’ and ‘public’ interest in this area.
An examination of plea roll records of how appeals of mayhem were actually used seems – from my early forays – to be likely to show that this was generally rather removed from the idea of ensuring that fighting capabilities (whatever sort of ‘fighting’ we are talking about) were not damaged. The 1407 case I mentioned above, as well as being concerned with a woman rather than a ‘fighting man’, was also about the relatively unspectacular injury of a damaged finger on the left hand. There are a lot of fingers in these cases, and, while archers certainly needed their fingers, I am not, at this point, convinced that that sort of concern really played a large part in the prosecution of appeals of mayhem.
Immortal wounds, or the not-quite-death of a non-fatal injury concept
Appeals (individual prosecutions in this old style) were abolished by statute in 1819.[vii] The concept of mayhem, however, did not die. It was somewhat effaced by the reorganisation of non-fatal injury crimes in the nineteenth century (leading to the Offences Against the Person Act 1861 which criminal lawyers will know and … love) but, in a classic English common law move, not officially abolished. As a consequence, it is occasionally wheeled out in disputes about body-altering medical procedures or sado-masochist sexual conduct, and what might be the limits on consent in those areas.[viii] I am not a particular fan of dredging up effectively obsolete legal concepts like this, but, as long as that remains a possibility, it seems that there is considerable value in understanding this area of common law activity as well as we possibly can, looking at how it actually worked, rather than just the way a treatise writer chose to encapsulate it.
More broadly, I think that a consideration of the appeal of mayhem has something to offer to thoughtful modern work on legal responses to injury, changing ideas about classification and ranking of injuries, and the appropriate roles of individuals and ‘the state’ in this area. Moving outside legal scholarship, I also hope that some of the information about assessment of injuries which is coming out of the records of mayhem cases (who does it, when and how?) will prove useful to historians of medicine and disability as well as historians of law.
Let me summarise and sign off in shamelessly cheesy fashion …
This frequently ignored area of law and procedure might seem like a moribund cul-de-sac of ‘mere antiquarianism’, but I think
MAYHEM IS APPEALING.
25th October, 2021.
[ii] II:409 (translation from the Woodbine-Thorne edition).
[iii] Blackstone, Commentaries, Book IV c.15.
[v] This brings us back to the sex/gender question, because trial by battle excluded women.
[vi] See, e.g., Margaret Brazier, ‘The body in time’, Law, Innovation and Technology 7 (2015), 161-186, at 176-9.
[vii] st. 59 Geo III c 46, s.1.
[viii] Brazier, ‘The body in time’, 176-9.