Wounding: From Mayhem to Offences Against the Person
24 Feb 2010
Earlier this year I received a grant from the Society towards my comparative research on serious non-fatal violence in Scotland, England and Wales between the mid eighteenth and the late nineteenth century. My project aims to investigate the changing ways in which the Scots, English and Welsh understood interpersonal violence, and how the courts punished it, relying mainly on criminal depositions and other documents of the criminal justice system. The grant allowed me to conduct research at the National Archives of Scotland, where I gathered information about Scottish legal cases of the period circa 1600-1900.
Building on my existing work on the history of violence, crime and medico-legal practice, the focus on assault takes my research in a new direction. Previous work showed that Scots law was unique in its severity towards an unusual form of assault (vitriol throwing) during the nineteenth century, but a much wider range of offences against the person were felonies in Scotland during the early modern period (which is why I extended my investigations further back in time). A degree of parity with England and Wales was achieved as older Scottish laws fell into desuetude during the eighteenth and nineteenth centuries and as English law was gradually tightened (culminating in the 1861 Offences Against the Person Act). Examples of distinctively Scottish offences include hamesucken (assaulting a person in their own home), beating one's parents, mutilation (wounding), dismembering, and battery (assaulting an adversary during a law-suit). In England and Wales, by contrast, similar offences could usually be prosecuted only as misdemeanour common assault.
A wide variety of original records and finding aids were consulted during three five-day visits to West Register House in Edinburgh, providing a good overview of legal prosecutions. Some lists of sentencing trends for violent offences exist, while summaries of early modern witness testimony, and eighteenth-century petitions, give insights into the origins of disputes which became violent, as well as the levels of verbal and physical violence used.
Minute books from each of the four legal Circuits during the eighteenth century were sampled, to give an idea of the circumstances surrounding assault cases, the charges brought, and the way the courts dealt with them. The private prosecutor's aim was usually some form of restitution, while the public prosecutor (a position which did not exist in England and Wales until the nineteenth century) would often press lesser charges to avoid a capital sentence - a trend which continued throughout the nineteenth century. This seems to have been done mainly to ensure convictions; and shows that in making the decision as to what charges to bring, prosecutors were in effect assessing the seriousness of the offence and estimating the severity of the punishment. Cases were sometimes remitted to lower (sheriff) courts.
The Index to the Books of Adjournal of the High Court of Justiciary (1537-1828) lists just under 200 cases relevant to my project and allows me to trace change over time: older statutes outlived their usefulness but increasing numbers of assault charges are evident towards the end of the period. This fits well with the hypothesis that public attitudes to interpersonal violence hardened c. 1750 to 1850 and more prosecutions were brought into the higher courts. The project continues for another year, when I will selectively explore later nineteenth-century cases to gain further insights into the protagonists' viewpoint during a period of rapid socio-economic and legal change. One of the key questions I wish to ask of this period is to what extent interpersonal violence withdrew from public spaces
Dr Katherine D. Watson
November 2009
