Abstract
‘A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight ... The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming.’
- Lord Templeman, R. v. Brown (Anthony) [1994] 1 A.C. 212, at 231.
From the later medieval period onwards, an important part of the response of the common law of England to violence and injury was the creation of the concept referred to in this passage: that of maim, or, as it is usually termed in older sources, mayhem. Its origins can be traced to the late medieval period, it remained part of the legal landscape until the nineteenth century, and it retains an attenuated influence today, in relation to difficult questions of the effect of consent to physical injury – the key issue in Brown.
Lord Templeman’s definition highlights a striking continuity across time in legal texts on mayhem: its strong link to masculine bodies and roles. As expressed in legal texts, it was concerned with a man, his members, and one of his expected functions: fighting.
Mayhem first appeared in the common law as a reason which could be given to avoid participation in judicial combat (a mode of proof considered appropriate only for men), and, by a twisting and obscure path, came to be an independent category of criminal prosecution: the appeal of mayhem. This pattern of development – from juridical ‘shield’ to ‘sword’ – had important, gendering, effects on the offence of mayhem as understood in the later medieval period and afterwards, leaving conceptual scars which did not fade from lawyers’ accounts of the rules. Although the law as used in practice may not have been as restricted to men, nor as focused on fighting capacity, as these accounts would suggest, it was the heavily masculine prescriptive accounts which persisted in the consciousness of lawyers down to the modern period. The main points – men, their members, their capacity for fighting – can be seen both in Bracton and in Brown.
The story of mayhem has not attracted much attention in classical English legal history, and it is worth asking why that might have been the case, when there would seem to be much which is worthy of investigation, in this concept and its use in practice. Certainly, today’s historians of gender and legal historians should not continue to overlook the appeal of mayhem.
- Lord Templeman, R. v. Brown (Anthony) [1994] 1 A.C. 212, at 231.
From the later medieval period onwards, an important part of the response of the common law of England to violence and injury was the creation of the concept referred to in this passage: that of maim, or, as it is usually termed in older sources, mayhem. Its origins can be traced to the late medieval period, it remained part of the legal landscape until the nineteenth century, and it retains an attenuated influence today, in relation to difficult questions of the effect of consent to physical injury – the key issue in Brown.
Lord Templeman’s definition highlights a striking continuity across time in legal texts on mayhem: its strong link to masculine bodies and roles. As expressed in legal texts, it was concerned with a man, his members, and one of his expected functions: fighting.
Mayhem first appeared in the common law as a reason which could be given to avoid participation in judicial combat (a mode of proof considered appropriate only for men), and, by a twisting and obscure path, came to be an independent category of criminal prosecution: the appeal of mayhem. This pattern of development – from juridical ‘shield’ to ‘sword’ – had important, gendering, effects on the offence of mayhem as understood in the later medieval period and afterwards, leaving conceptual scars which did not fade from lawyers’ accounts of the rules. Although the law as used in practice may not have been as restricted to men, nor as focused on fighting capacity, as these accounts would suggest, it was the heavily masculine prescriptive accounts which persisted in the consciousness of lawyers down to the modern period. The main points – men, their members, their capacity for fighting – can be seen both in Bracton and in Brown.
The story of mayhem has not attracted much attention in classical English legal history, and it is worth asking why that might have been the case, when there would seem to be much which is worthy of investigation, in this concept and its use in practice. Certainly, today’s historians of gender and legal historians should not continue to overlook the appeal of mayhem.
| Original language | English |
|---|---|
| Type | Conference presentation |
| Media of output | Oral, with slides, online |
| Publication status | Published - 15 Nov 2022 |
Bibliographical note
Keynote presentation toResearch Groups and Themes
- Centre for Law and History Research
