Coventry’s Act and Malicious Injury

By Cassie Watson; posted 29 September 2020.

On Tuesday 20 December 1670 the House of Commons adjourned until the New Year, but MPs were unaware that one of their number had been singled out for special attention by members of the king’s household. Three days earlier, during a debate on the King’s Supply, a committee appointed to consider revenues had suggested levying a tax on play-houses. This motion was opposed in committee by courtiers, because “the Players were the King’s servants, and a part of his pleasure.” “To this, Sir John Coventry, by way of Reply, asked, ‘If the King’s pleasure lay among the men or women Players?’”[1] This remark was reported at Court, taken to be an offensive reference to the king’s relations with Nell Gwyn and Moll Davies and deeply resented; so some individuals resolved “to set a mark” on Coventry, the 34-year-old MP for Weymouth and Melcombe Regis in Dorset, to “prevent others from taking the like liberties”.[2] On the very night that the House adjourned, a number of the Duke of Monmouth’s horse guards, and some foot soldiers, “lay in wait from ten at night till two in the morning, by Suffolk-street” (Coventry’s address in Westminster). They pounced as he returned home from a tavern with his servant, “threw him down, and, with a knife, cut the end of his nose almost off; but company coming made them fearful to finish it; so they made off.”[3]

Exactly what the assailants would have done if they hadn’t been interrupted is unknown, as the four main perpetrators fled the country, but Coventry was clearly the victim of a vicious assault. We shall leave him to the care of his surgeons,[4] however, and turn to the relevance of this incident to historians of law and crime.

Coventry’s Nose and Legal History

Firstly, the attack on Sir John Coventry contributes to our understanding of assault, a subject which has not attracted the same degree of historical interest that homicide has. Sir John Baker noted the case in the context of the relatively light-touch approach of the early modern common law to violent offences;[5] and it served briefly and indirectly as supporting evidence in John Langbein’s work on the development of the criminal trial, in relation to the employment of prosecuting counsel in the early eighteenth century.[6] Phil Handler has shown that in England, the most systematic attempts to reform the law of assault occurred in the period 1803-1861,[7] long after Coventry was attacked.

Secondly, historians of crime who have studied assault have tended to consider the early modern period, particularly the eighteenth century, or the Victorian period, but only Drew Gray and Peter King have focused especially on the decades around 1800. Their work suggests that attitudes to interpersonal violence began to change significantly at that time: it became increasingly unacceptable, so that laws against it were tightened and it gradually withdrew from public spaces.[8] The assault on Sir John Coventry offers a useful starting point for investigating the development of social and legal constraints against serious physical violence. 

Coventry’s Act, 1671

When MPs returned to Westminster on 9 January 1671 they discovered that Coventry was still too ill to attend. Although the damage done to his nose was not permanent, his fellow MPs were enraged and lost no time in venting their anger, as Figure 1 shows. A bill was proposed to force the suspects to present themselves or be banished forever, and Sir Nicholas Carew suggested that “some general Law be included in this particular occasion, for our safety for the future.”[9] Although there was some argument about setting aside other issues, the House resolved to push through the bill to the exclusion of all other business and drafted, debated, amended and passed it by 14 January, when it was sent to the House of Lords.

The lords argued with the Commons about some of its terms but seem to have been generally supportive, or at least not very obstructive: the journals of the House of Lords and House of Commons indicate a lot of discussion which seems to have concluded by 11 February. On 6 March the king granted the bill, along with several others, his assent, and seems to have been keen to make his escape, telling the assembled lawmakers that “I have nothing to say to you now, but to thank you very heartily for the Two Bills now passed for My Supply; and to desire you make what Haste you can in such Public Bills as are in your Hands, that there may be a Recess towards the latter End of this Month.”[10] The Coventry Act, as it was known, came into force on 24 June 1671.

Stages in the enactment of Coventry's Act
Figure 1

The key section of the Act, for historians interested in violence, is the seventh, because it created a new felonious form of assault, or malicious wounding:

“Be it further enacted by the Authority aforesaid, That if any Person or Persons, from and after the four and twentieth Day of June [1671], on Purpose and of Malice fore-thought, and by lying in wait shall unlawfully cut out or disable the Tongue, put out an Eye, slit the Nose, cut off a Nose or Lip, or cut off or disable any Limb or Member of any Subject of his Majesty, with Intention in so doing to maim or disfigure in any the Manners before-mentioned … shall be, and are hereby declared to be felons, and shall suffer Death, as in Cases of felony, without Benefit of Clergy.”[11]

According to later commentators such as Blackstone and East, the first such statute dated to the reign of Henry IV as a solution to what was then seen as a prevailing problem, the beating, wounding or robbing of a victim who was blinded or had his tongue cut out to prevent him from giving evidence against the perpetrators. Over a hundred years later it became both a civil and a criminal offence (the penalty was a £10 fine) to cut an ear off any of the king’s subjects, but neither author reveals why Henry VIII thought that a specific statute against this probably rare form of assault was needed.[12]

Then Sir John Coventry had his nose slit and the scope of felonious assault was widened enormously. It widened even further fifty years later when the Black Act of 1723 (passed in April to take effect from 1 June) made it a capital offence to shoot at someone to the danger of killing or maiming them, even if no actual injury occurred.[13] This criminalised attempted murder for the first time.

Trials Under Coventry’s Act

The earliest known example of a trial under the statute is that of a highwayman called Charleton, who was acquitted in 1693.[14] The far more famous trial of Coke and Woodburne thirty years later ended in a conviction; but not before Coke, a barrister who defended himself, argued that he could not be guilty because his intention was to murder, not to maim. In later decades legal writers dismissed this audacious defence, but identified the case as an important precedent:[15] the defendants were executed, all those concerned in the trial apparently believing it to be the first prosecution under the Act.[16] Leaving aside the question this raises about legal professionals’ knowledge of the statute, we might note simply that the apparent ignorance of the Charleton case suggests that the Act was rarely used, and perhaps rarely thought of at all in the immediate wake of the attack on Sir John Coventry.

The trial of Coke and Woodburne established four key points: 1) the offence must be done of malice aforethought; 2) by lying in wait; 3) by slitting the nose etc; 4) with an intention to maim or disfigure.

The focus on maiming the face was reiterated during the 1764 trial of Henry Timbrill, who had castrated two apprentices. Given the strength of popular feeling against him, it seems likely that he was prosecuted under the Coventry Act in an attempt to punish him more harshly than would otherwise have been possible, but because he had not lain in wait he could be convicted only of a common assault, to the great fury of the local populace.[17] In 1778 two men were capitally convicted in separate trials, but reprieved when the twelve judges found there was insufficient evidence of lying in wait.   

Three Welsh prosecutions, none of which succeeded in themselves, are interesting because they form a small cluster in the early 1780s. How would the victims have known about the statute? Someone with legal training must have suggested it as an additional option, as all the defendants were also indicted for common assault. One was acquitted, but the others were sentenced to several years’ imprisonment — at that time a fairly stiff sentence for common assault. The fact that the statute wasn’t well known but was seized upon as a way of sending a message about violent assaults is also suggested by the fact that two of the indictments cite the wrong date, 24 June 1670 rather than 1671. But its use in Wales seems to have been restricted to these few cases: in 1785 a Flintshire man who cut his victim’s nose was not indicted under the Act, even though the assize clerks and solicitors should have been aware of the earlier indictments, which had been prosecuted on the same assize circuit.  

Most of the successful prosecutions occurred at the Old Bailey in London where, unlike the Welsh Court of Great Sessions, there were few prosecutions for common assault — only 44 cases from 1700 to 1800 — with proceedings in the lower courts or informal arbitration probably being the preferred course of action.[18] Indictments for wounding were however nearly twice as frequent (81 cases), and began to rise noticeably from the 1760s, resulting in nearly 30 death sentences under the Black Act as well as a handful under the Coventry Act.

Lawyers were almost certainly the key to this trend, and the timing fits conveniently with the well-established findings of John Langbein about the growing influence of barristers in criminal trials held at the Old Bailey.[19] Whereas Arundel Coke had to defend himself in 1722, sixty years later John Mills had counsel, although ultimately to no avail. The judge summed up the case in detail with relation to the statute, and Mills was convicted and executed — the details of the case fit the terms of the Coventry Act very closely indeed.[20] Two men named Nowland and Price had better luck in 1803. Their barrister suggested that they had been neither lying in wait nor acting with malice aforethought, because they had simply been trying to avoid arrest. The jury found them guilty of maiming but the judge told them they had to convict on the whole charge or not at all, which basically amounted to a directed acquittal. The defendants were immediately tried on a separate indictment for stealing (the crime they’d been trying to avoid being arrested for), convicted and sentenced to transportation.[21] However, their acquittal drew the attention of the new Lord Chief Justice, Lord Ellenborough.

Connections and Conclusions

The examples above suggest that the Coventry Act could serve directly as a means of securing a conviction in a limited number of cases where the facts clearly fit the terms of the statute. Or, it could serve a more rhetorical purpose, as a way of making a public statement against interpersonal violence.

After the turn of the century the further criminalisation of assault moved forward under the impetus of Lord Ellenborough. In March 1803 he introduced the bill which soon became the Malicious Shooting and Stabbing Act, better known as Lord Ellenborough’s Act, noting that it was necessary to make “some alteration in the Coventry Act” because of the recent acquittal of Nowland and Price. His new bill included a clause “relative to the offence of maiming, wounding, &c.” which was the same as the provision of the Coventry Act, only leaving out the words, “lying in wait.”[22] On 1 July 1803 Lord Ellenborough’s Act created ten new capital felonies including shooting at or stabbing with intent to murder, rob, disfigure, disable, do some grievous bodily harm or prevent the lawful apprehension of the defendant or accomplices. But it did not repeal the Coventry Act. 

Edward Law, 1st Baron Ellenborough (1750-1818)

This law soon revealed defects that resulted in acquittals, but marked a turning point in the criminalisation of assault. In 1828 the first Offences Against the Person Act, 9 Geo IV c.31, better known as Lord Lansdowne’s Act, repealed and consolidated 56 statutes concerning malicious injuries, from medieval laws through Coventry’s Act and including Lord Ellenborough’s Act, but still contained similar provisos. In 1836 prosecuting counsel at a trial in Exeter noted that the 1828 Act united those of Coventry and Lord Ellenborough.[23]

New statutes were the key to prosecuting malicious injury in the long eighteenth century, and the Coventry Act was an important stage in that process. However, it was so narrowly conceived that it could only be successfully applied in a handful of cases. Even when injuries other than to the nose were taken as central to the indictment, as the statute allowed, either the deliberate intent or the fact of lying in wait could be in doubt, and so many prosecutions ended in acquittal or reprieve.

Acquittals on the capital charge cannot have been unanticipated, and some prosecutors were ready with secondary indictments. Decisions to prosecute on the Act seem suggestive of a growing public awareness that malicious injuries were serious criminal offences that should not be tolerated. This expands on Phil Handler’s findings for the nineteenth century, and demonstrates that in its focus on malice, premeditation and the use of a weapon, the personal attack on Sir John Coventry in 1670 served as a direct but unintended stimulus to the process of criminalising assault that culminated in the 1861 Offences Against the Person Act.

Images

“Attack on Sir John Coventry.” In Cassell’s Illustrated History of England, Vol. 3. From the Accession of James I to the Revolution of 1688 (London, Paris and New York: Cassell Petter & Galpin, 1873), 457. Available from archive.org.

Portrait of Edward Law, 1st Baron Ellenborough (1750-1818), M.P., Lord Chief Justice of England (1802-1818), three-quarter-length, in judicial robes with his chain of office. Public domain.

References

[1] “Debates in 1670: December”, in Grey’s Debates of the House of Commons: Volume 1, ed. Anchitell Grey (London, 1769), pp. 314-333. British History Online http://www.british-history.ac.uk/greys-debates/vol1/pp314-333 [accessed 29 Sept 2020].

[2] “Debates in 1671: January (1st-17th)”, in Grey’s Debates of the House of Commons: Volume 1, ed. Anchitell Grey (London, 1769), pp. 333-353. British History Online http://www.british-history.ac.uk/greys-debates/vol1/pp333-353 [accessed 29 Sept 2020].

[3] “Debates in 1670: December”, in Grey’s Debates of the House of Commons: Volume 1.

[4] The damage was not permanent, and “his tongue would never earn him so much fame as his nose.” See John P. Ferris, “Coventry, Sir John (c.1636-85), of Mere, Wilts. and Suffolk Street, Westminster,” in The History of Parliament: the House of Commons 1660-1690, ed. B. D. Henning (London: Secker & Warburg, 1983). Online at The History of Parliament, http://www.histparl.ac.uk/.

[5] J. H. Baker, An Introduction to English Legal History, fourth edition (London: Butterworths, 2002), 531.

[6] John H. Langbein, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” The Cambridge Law Journal 58 (1999): 332.

[7] Phil Handler, “The Law of Felonious Assault in England, 1803-61,” Journal of Legal History 28 (2007): 183-206.

[8] Peter King, “Punishing Assault: The Transformation of Attitudes in the English Courts,” Journal of Interdisciplinary History 27 (1996): 43-74; Drew D. Gray, “The Regulation of Violence in the Metropolis; the Prosecution of Assault in the Summary Courts, c.1780–1820,” The London Journal 32 (2007): 75-87.

[9] “Debates in 1671: January (1st-17th)”, in Grey’s Debates of the House of Commons: Volume 1.

[10] “House of Lords Journal Volume 12: 6 March 1671”, in Journal of the House of Lords: Volume 12, 1666-1675 (London, 1767-1830), pp. 444-446. British History Online http://www.british-history.ac.uk/lords-jrnl/vol12/pp444-446 [accessed 29 Sept 2020].

[11] William Hawkins, The Statutes at Large, from Magna Charta to the Seventh year of King George the Second, Inclusive. In six volumes. Vol. 2 (London: John Baskett, 1735), 739.

[12] William Blackstone, Commentaries on the Laws of England, Vol. 4 (Oxford: Clarendon Press, 1769), 206-207; Edward Hyde East, A Treatise of the Pleas of the Crown, Vol. 1 (London: J. Butterworth, 1803), 393-394.

[13] 9 Geo I c.22, An Act for the more effectual punishing wicked and evil-disposed Persons going armed in Disguise and doing Injuries and Violences to the Persons and Properties of His Majesty’s Subjects, and for the more speedy bringing the Offenders to Justice; repealed 8 July 1823.

[14] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, March 2018), April 1693, trial of Nicholas Charleton (t16930426-56).

[15] John Frederick Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases (London: R. Pheney, 1822), 250.

[16] T. B. Howell, ed., A Complete Collection of State Trials, Vol. 16, 1722-1725 (London: T. C. Hansard, 1812), no. 462, pp. 53-94, on p. 83.

[17] Derby Mercury, 23 March 1764, 2.

[18] See Drew D. Gray, Crime, Prosecution and Social Relations: The Summary Courts of the City of London in the Late Eighteenth Century (Basingstoke: Palgrave Macmillan, 2009).

[19] John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003).

[20] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, March 2018), April 1783, trial of John Mills (t17830430-70).

[21] The Morning Post, 19 February 1803, 3.

[22] Bell’s Weekly Messenger, 3 April 1803, 3.

[23] Exeter Flying Post, 14 April 1836, 3.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s