Doom for Demembring: Assault in Scots Law

By Cassie Watson; posted 25 March 2017.

In contrast to the extensive historiography on homicide, as yet we know comparatively little about severe non-fatal violence in Britain.[1] Since the vast majority of assaults and other acts of violence were not defined as felonies in English law, court procedures and sentencing patterns were diverse and informal until this relative laxity began to change during the period 1770–1830.[2] In Scotland, however, a much wider range of offences against the person were defined as felonies under a mixture of customary and statute law, and subject—in theory if not often in practice—to capital punishment. During the first half of the nineteenth century English and Scottish definitions of “serious crime” began to converge, due to administrative changes and the repeal of old statutes, but in Scotland the unique system of public prosecution meant that the decision to prosecute a case in the high courts or the sheriff courts reflected a pre-trial decision about both the seriousness of the crime and the severity of the punishment it deserved.[3] This makes the range of behaviours criminalised in Scots law interesting in their own right, particularly for what they reveal about aggravated assaults and attitudes to them.

Assault in Early Modern Scots Law

Seton title pgBy the end of the seventeenth century the Scottish legal system classified felonious assaults under at least six different categories, based on the context in which they occurred or the damage caused. Statutes against demembration and mutilation framed the harm done to the individual in terms of “hurt” rather than “wound”, so that although the use of an edged weapon was seen as a typical cause, other means such as biting were not necessarily excluded. Mutilation was the lesser of the two offences because it encompassed physical damage that prevented the normal function of but did not remove a body part. Demembration, by contrast, assumed a form of amputation.[4]  Both crimes required the injured body part to be a “useful and proper member”, so there was some legal disagreement about the independent status of fingers and toes; hands, legs, eyes and breasts were clearly included within the definition while chins and beards were not.[5]

The most important felonies included:

Assaulting a minister: criminalised in 1587 (Disorders in Church Act); assault with intent to kill or rob his house became a capital offence in 1670 (Invading of Ministers Act).[6]

Beating and cursing parents: subjected minors aged 16 or over to capital punishment, 1661.[7]

Demembration: cutting off an entire body part, a capital offence under 3 James IV c.28 (1491).[8]

Hamesucken: a customary capital offence – feloniously beating or assaulting a person in their own house or dwelling place having entered for that purpose.

Mutilation: permanently taking away the use of a body part; year + day allowed for victim’s recovery; non-capital.[9]

Stellionate: a customary legal term denoting a serious personal injury not specified by other legal terms (e.g. an internal injury, a burn), punished at the judge’s discretion.

Scottish legal records show that all these offences were in regular use by the courts, but executions were relatively few and largely confined to the period before 1700. Sir Alexander Seton listed dozens of trials for various forms of demembration and mutilation which took place mainly during the first half of the seventeenth century,[10] but as early as 1610 it was accepted that the death penalty was not normally used in such cases.[11] Two hundred years later it was commonly supposed that there had never been any capital convictions for demembration,[12] but this assumption was incorrect. In the early seventeenth century an officer of the Justiciary Court compiled an undated list of notes on cases of mutilation and demembration heard between 1528 and 1608, which shows that three of the six accused men were convicted and two were executed (“headit”[13]): Donald Naper (“for mutilation and hurting of Wm Chyne”, 1543) and Gilbert Martin (“for unbesetting the way of John Nicolson and mutilation of him and reeving of his horss clok and pystoletts”, 1550). The third convict, John Duncane, forfeited his estate to the king in 1608. A note at the bottom of the page cited the statute of James IV: “Demembring Ja 4 c28 – gif it be done of forethoght fellonie the offender to die therefore”.[14]

DoomNaper and Martin were an exceptionally unlucky minority: by the late seventeenth century the expected punishment (the “doom”) for demembring was a hefty fine of 300 merks (£16.5s).[15] A century later David Hume noted that mutilation and demembration inferred an arbitrary punishment, rendering irrelevant all arguments about the degree to which individual parts should be considered “distinct members of the body”. Typical punishments then included imprisonment and a fine, but graver infractions might attract a sentence of scourging and banishment.[16]

Private prosecutions for assault were probably intended to prompt monetary compensation, as in the case of John Smith, a weaver of Irvine in Ayrshire, who in September 1756 was assaulted by a group of men during a burgh council election. His petition for legal redress recounted how his mouth had been stuffed with a handkerchief so that he could not speak or breath and was “almost stifled and put to the brink of eternity” before being roughed up in an ordeal that lasted many hours. He wanted his attackers brought to trial but knew that some of them had fled to avoid “making such restitution as the law may find them liable in or subject to me in name of damages and assythment”. The defendants were granted bail, suggesting that the case wasn’t seen as particularly serious.[17] If the cases that did make it to court are any indicator, this one was settled informally or by the imposition of a fine and damages.

Public prosecutions were brought in cases deemed serious enough to merit them, but the prosecutor (the Advocate Depute) would often press lesser charges to avoid a capital sentence and gain a conviction. The accused would have had moments of worry, however, since the decision was usually made in court, and it was not uncommon for defendants to petition for banishment to avoid trial. In 1753, for example, James Peacock was indicted at Ayr for beating and cursing his parents. But even though his father denied that any physical assault had occurred, Peacock was banished for life to America on his own petition, to remain in prison until the ship sailed and to be whipped through town and re-transported if he ever returned.[18] We must therefore reconsider the assertion that no case of beating and cursing parents was recorded later than 1735,[19] as clearly the law remained in use at a later date.

The Modern Period

Following an English precedent,[20] the first Scottish law specifically designed to impose the death penalty for assaults which amounted to attempted murder was passed in 1825. It criminalised acid throwing as a response to recent events in Glasgow, and its replacement in 1829 included suffocation, strangulation and drowning.[21] Indexes to the High Court records to the end of 1828 show that charges of assault were incurring hefty sentences before 1825, up to and including transportation for life.[22] In 1824 Benjamin Ross (age 67) was transported for life for hitting his wife on the head with a heavy stick, whereas in 1827 Mysie Brown (age 69) was imprisoned for 18 months for attempting to hang her husband. Both outcomes might have been harsher under the 1829 statute, providing good examples of the flexibility that Scottish prosecutors and judges regularly exercised when the circumstances of a case indicated an aggravated offence meriting a stiff punishment.[23]

Nor had the ancient charges of stellionate or hamesucken quite outlived their usefulness: 41 charges of stellionate were brought in the high courts between 1820 and 1856 for crimes including election violence, administration of harmful drugs, child neglect and acid throwing; and 181 cases of hamesucken were tried between 1800 and 1853.[24] In 1834 Richard Hill was condemned to death for hamesucken and rape, the judges telling him not to expect any exception to “what was the universal practice of the law” as they set his execution date.[25] But the usual punishment was transportation or imprisonment, and Hill was reprieved and sent to Australia.[26] Although this felony remains available to prosecutors today,[27] it fell into disuse during the second half of the nineteenth century.[28]

After the 1850s, serious assaults were tried either at common law or under the 1829 statute. A document compiled in 1920 lists the sentences handed down in cases of stabbing and shooting and shows that Scottish prosecutors had retained the habit of passing from the aggravated charge to one of common assault, or accepted a plea to part of an indictment only.[29] There was evidently a tension between being seen to prosecute interpersonal violence to the full extent of the law, a willingness to take each case on its own merits, and a desire to achieve a conviction. Nonetheless, although few perpetrators ever had to fear the ultimate “doom for demembring”, the variety of charges and range of punishments available to the courts left Scots in no doubt that “Every act of attack upon the person of another is an assault in law, whether it injure or not”.[30]

Image: Parliament Hall, Edinburgh, from Cassell’s History of England, Vol III, From the Great Rebellion to the Fall of Marlborough (London: Cassell, 1909), 317.

[1] Carolyn Conley, Certain Other Countries: Homicide, Gender, and National Identity in Late Nineteenth-Century England, Ireland, Scotland, and Wales (Columbus: Ohio State University Press, 2007) offers a comparative analysis of responses to homicide, but no similar study exists for assault.

[2] Peter King, “Punishing assault: the transformation of attitudes in the English courts”, Journal of Interdisciplinary History, 27 (1996): 43-74.

[3] M. Anne Crowther, “Crime, prosecution and mercy: English influence and Scottish practice in the early nineteenth century”, in Kingdoms United? Great Britain and Ireland since 1500: Integration and Diversity, ed. S. J. Connolly (Dublin: Four Courts Press, 1999), 236-237.

[4] Alexander Seton, A Treatise of Mutilation and Demembration (Edinburgh: Andrew Anderson for Andrew Symson, 1699), 6-7.

[5] Ibid., 9.

[6] David M. Walker, A Legal History of Scotland, Vol. IV, The Seventeenth Century (Edinburgh: T & T Clark, 1996), 500. See also Records of the Parliament of Scotland to 1707, http://www.rps.ac.uk/trans/1587/7/16 and http://www.rps.ac.uk/trans/1670/7/10 (accessed 21 March 2017).

[7] Walker, A Legal History of Scotland, Vol. IV, 491.

[8] Records of the Parliament of Scotland to 1707, http://www.rps.ac.uk/trans/1491/4/13 (accessed 25 March 2017).

[9] Seton, Treatise of Mutilation, 7; David Hume, Commentaries on the Law of Scotland, Respecting the Description and Punishment of Crimes, Vol. 2 (Edinburgh: Bell & Bradfute, 1797), 50.

[10] Seton, Treatise of Mutilation, 23-29.

[11] Walker, A Legal History of Scotland, Vol. IV, 499.

[12] Hume, Commentaries on the Law of Scotland, 50; Robert Bell, Dictionary of the Law of Scotland, Vol. 1, 3rd edn (Edinburgh: John Anderson & Co. and Bell & Bradfute, 1826), 408.

[13] A misspelling of “hedit” or “heidit”, meaning beheaded: see Dictionary of the Scots Language, http://www.dsl.ac.uk/entry/dost/hedit_ppl_adj (accessed 25 March 2017). I thank Anne-Marie Kilday for this reference.

[14] National Archives of Scotland, Edinburgh (hereafter NAS), JC 49/9, Early seventeenth-century notes on cases of dismembering and mutilation heard 1528-1608. I thank Andrew Spicer for correcting my transcription of this document.

[15] George Mackenzie, The Laws and Customs of Scotland in Matters Criminal (Edinburgh: Andrew Anderson for Andrew Symson, 1699), 286; Old Scottish Money, http://www.thereformation.info/old_scottish_money.htm (accessed 19 March 2017).

[16] Hume, Commentaries on the Law of Scotland, 51-52.

[17] NAS, JC 25/1, Petition and Complaint for John Smith, 12 Nov 1756; Petition of Robert Cunninghame and others, 19 Nov 1756. Assythment refers to satisfaction for injury.

[18] NAS, JC 12/7, South Circuit Minute Book, Spring 1751 – Spring 1754, 207-209.

[19] David M. Walker, A Legal History of Scotland, Vol. VI, The Nineteenth Century (Edinburgh: Butterworths, 2001), 417-418.

[20] The Malicious Shooting and Stabbing Act, better known as Lord Ellenborough’s Act, 43 Geo III, c.58 (1803).

[21] Malicious Wounding (Scotland) Act, 6 Geo IV c.126 (1825) and Criminal Law (Scotland) Act, 10 Geo IV c.38 (1829).

[22] NAS, High Court Record, Index No. 2, 17 Dec 1785 – 23 Dec 1828.

[23] Aggravated offences involved injury to the danger of life; the effusion of blood was a key indicator of gravity.

[24] NAS, ‘Solemn Database’ of 19th-century High Court cases.

[25] The Perthshire Advertiser, 2 Oct 1834, 2.

[26] Convict Records of Australia, http://www.convictrecords.com.au/convicts/hill/richard/19796 (accessed 25 March 2017).

[27] https://proutdejure.info/2011/08/25/hamesucken-is-alive-and-well-in-modern-scots-law/ (accessed 25 March 2017).

[28] Walker, A Legal History of Scotland, Vol. VI, 417.

[29] NAS, JC 49/1, Notes on Justiciary Court procedure, types of cases, and sentences 1591-1920: tables with notes and rough index of various sentences 1855-1920.

[30] John H. A. MacDonald, A Practical Treatise of the Criminal Law of Scotland (Edinburgh: William Paterson, 1867), 176. For a detailed study of assault prosecutions in nineteenth-century police courts, see David G. Barrie and Susan Broomhall, Police Courts in Nineteenth-Century Scotland, Vol. 2, Boundaries, Behaviours and Bodies (London and New York: Routledge, 2014), chapter 1.

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