By Cassie Watson; posted 28 June 2022.

Two recent ITV documentaries about very different crimes have highlighted the harm that both humans and animals suffer when their bodies are damaged and their trust betrayed. Bodies of Evidence: The Butcher Surgeon uncovers the shocking story of Birmingham-based breast surgeon Ian Paterson. Having carried out many unnecessary operations over a 14-year period, in 2017 he was sentenced to 20 years for wounding with intent and unlawful wounding; but no laws have been changed as a result.[1] How to Catch a Cat Killer recounts the efforts of the local community and Sussex Police to catch a serial animal abuser. It ends on a positive note: in 2021 the maximum penalty for animal cruelty was increased from six months to five years in prison.[2]  

Both programmes stressed the harm, both physical and emotional, that victims experienced. Paterson’s patients lived with the fear of cancer as well as their scars, and were re-traumatised when the scandal came to light; pet owners and surviving cats were mentally scarred. This led me to wonder how the word ‘harm’ was deployed in past legal settings. Previous posts have considered assault and animal victims of crime, and the work of Phil Handler has identified Lord Ellenborough’s Act of 1803 as a turning point in the legal proscription of non-fatal offences against the person.[3] It is also evident that the concept of harm to an individual’s reputation is centuries old.[4] In this post, therefore, I examine the use of the word in the eighteenth and early nineteenth centuries, to get an idea of what victims, perpetrators and legal officials understood when they used the word ‘harm’. 

Physical Harm

In eighteenth-century criminal law, harm was conceived largely in terms of “bodily harm,” a phrase that dominates the relatively few uses of the word both in Sir Matthew Hale’s History of the Pleas of the Crown,[5] and the four volumes of Blackstone’s Commentaries on the Laws of England. Blackstone, however, included a slightly broader notion of harm in his consideration of public wrongs, noting the importance of death or exile as punishments designed to prevent future crimes: “The public gains equal security, whether the offender himself be amended by wholesome correction; or whether he be disabled from doing any farther harm: and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens.”[6]

Most people considered ‘harm’ to equate to some form of actual bodily injury incurred in an assault. This is clear in the comments made by a female defendant at the Old Bailey. In May 1735 Sarah How was indicted for “assaulting and violently and inhumanely beating and wounding Daniel Owen,” a watchman whom she struck when he attempted to arrest her. She had been drinking — as was fairly typical in assault cases — and the incident escalated from name-calling (dirty dog, scrub rascal, and two words directed at How considered unfit for printing) to an exchange of blows in which she made his nose bleed. In her defence she demanded “But what harm did I do him? Let him shew his Marks, if he has any.”[7] She was convicted and fined a shilling, suggesting that Owen’s injury was not thought particularly grave.

Threatened harm was also taken seriously. In 1730 one of the earliest newspaper reports to use the phrase ‘bodily harm’ reported legal proceedings ongoing in the Court of King’s Bench: “We hear that on Saturday last, being the last Day of the Term, Dr Sayer, upon a Submission on the Part of Mr Spearman, to declare under his Hand, that he never did, nor does, intend any bodily Harm to him, did consent to have him discharged from further Prosecution, upon Account of the Information in the King’s Bench, for a Design of stabbing him.”[8]  

Nineteen years later Giovanni Niccolò Servandoni (1695–1766), a well-known architect, was arrested for drawing his sword and threatening Charles Frederick, Comptroller of His Majesty’s Laboratory at Woolwich, during the disastrous events of 27 April 1749, when fire destroyed the enormous wooden pavilion that Servandoni had designed for the royal fireworks. Enraged because an accident of this magnitude should have been avoided,[9] and naturally distraught when the fire began, high emotion did not excuse his behaviour, particularly as Frederick declared “he went in Danger of his Life, and receiving bodily Harm.”[10] Following a night in the cells, Servandoni was discharged “after having found Sureties for his good Behaviour, one in [£1000] and two in [£500] each.”[11]

The high premium placed on the threat to a gentleman stands in rather marked contrast to the actual physical harm that Sarah How inflicted on Daniel Owen, but sentencing clearly did reflect the degree of harm that victims suffered. In a Welsh case that predated Lord Ellenborough’s Act by twenty years, one Daniel Thomas of Llanwynno in Glamorgan was sentenced to a fine and eight years’ imprisonment for assault, having cut away part of his victim’s tongue.[12] He was acquitted of malicious cutting with intent to cause bodily harm, and so would not have suffered under the capital statute, but a sentence of eight years far exceeded those normally imposed for common assault.

Later Welsh cases that might have led to an execution seem to have ended in acquittal, or to have been seen as falling outside the remit of Lord Ellenborough’s Act and its successor, the Offences Against the Person Act 1828.[13] In April 1828 a grand jury threw out a charge of assault brought under the earlier statute, but convicted a man of common assault on a constable; the perpetrator was sentenced to two years’ hard labour in the house of correction.[14] At the summer Great Sessions, when the new law had come into effect, a miner was convicted of assault with intent to maim, the jury having ignored a charge of assault with intent to cause grievous bodily harm. He was sentenced to a mere one month, “in consideration of the provocation being on the part of the prosecutor.”[15] As Handler has noted, subsequent revisions of the law relating to non-fatal offences against the person retained such elements of discretionary justice,[16] but we should also note the continuing focus on harm being done in purely physical terms.[17] By the early 1920s the word harm was used mainly in relation to ‘bodily harm’ — some form of physical assault or, less frequently, the ‘harm’ (or damage) caused by poison or exposure.[18]

Emotional Harm?

People in the Georgian era used the word ‘harm’ to reflect character or behaviour: “I know nothing of this matter, nor where he was that Night; but I have known him from a Child, and never heard or saw any harm of him;”[19] a prosecutor had previously known the prisoner, but “never knew any harm of him.”[20] And of course the law of tort was transformed in the eighteenth and especially nineteenth century, to consider fault or blameworthiness in assessing legal liability for a wrong that caused a claimant to suffer loss or harm (hurt or damage). By the mid-twentieth century, an independent law of negligence dominated the law of tort.[21]

The element of negligence is visible in an obsequious public apology made by a labourer in Derby in 1790:[22]  

 

And of course, in cases of divorce and separation the concept of cruelty encompassed conduct that posed a danger to bodily or mental health.[23] It therefore seems reasonable to suppose that the word ‘harm’ might well have included the emotional impact of some act on a victim, and this does indeed appear to have been the case in the trial of a soldier for robbery in 1783.

Daniel Hickman, a private in the Third Regiment of [Foot] Guards, was tried at the Old Bailey for extorting three guineas “under the menace of charging a man with an unnatural attempt.”[24] It was one man’s word against the other, as there were no direct witnesses to their encounter. In his charge to the jury, Mr Justice Buller stated that the twelve Judges had recently agreed that when a man was put in fear of bodily harm and as a consequence gave up his money, the person who put him in that fear was guilty of robbery.[25] So in this case, the jury’s task was first to determine whether the victim’s account was true, “and then whether upon the facts he has stated, you are convinced that he parted with this money against his will, and through fear of an injury that he might receive to his character from the prisoner.”[26]

Hickman was convicted and his case was referred to the twelve Judges. They upheld his conviction and death sentence because “whether terror to men’s persons, or the loss of fame and reputation, which to some men may be an equal terror; the law makes no kind of difference; the principal ingredient in robbery, is a man’s being forced to part with his property.” Therefore, having obtained the victim’s money by threatening to charge him with sodomy, Hickman was rightly found guilty.[27] A modicum of doubt must have lingered, however, as Hickman “received his Majesty’s pardon, on condition of being transported to Africa for fourteen years.”[28]

Conclusion

Although the word ‘harm’ was typically associated with the effects of a physical assault, and so was used less frequently than the phrase ‘bodily harm’, it seems likely that the wider concept implied in today’s usage was understood in the eighteenth and nineteenth centuries. Thus, while the crime of assault might be the obvious place to begin a study of the causes and consequences of harm, it is by no means the only perspective from which to do so.

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Images

Main image: A man pleads for mercy with his left arm as he is robbed and beaten by three men. Etching, n.d. Wellcome Collection (public domain).

Portrait of Giovanni Niccolò Servandoni (1695-1766), attributed to Jean-François Gilles Colson (1733-1803). Second half of 18th century. Musée Carnavalet. Wikimedia Commons.

Plan and elevation of the Royal Fireworks, St James’s Palace, Designed by Giovanni Niccolo Servandoni, engraved in London by George Vertue, 1749. Victoria and Albert Museum (public domain).

The Derby Mercury, 23 September 1790, 3. Newspaper image ©The British Library Board. All rights reserved. With thanks to The British Newspaper Archive.

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References

[1] Bodies of Evidence: The Butcher Surgeon, directed by Alison Millar (Erica Starling Productions Ltd, 2022), 1:02:08–1:02:24.

[2] This is not exactly a significant advance on nineteenth-century penalties. In 1828, a Welshman was convicted of maiming a mare and transported for life following review by the twelve Judges. See William Moody, Crown Cases Reserved for Consideration; and Decided by the Judges of England [1824-1837], Vol. 1 (London: Saunders and Benning, 1837), Rex v. Owen Owens, 205-207; The Cambrian, 30 August 1828, 3.

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

[4] In the early 1340s a knight subjected to a malicious slander sued because his reputation had been “gravely harmed.” See Sara M. Butler, “Abortion by Assault: Violence against Pregnant Women in Thirteenth- and Fourteenth-Century England,” Journal of Women’s History 17 (2005): 15.

[5] Sir Matthew Hale, Historia placitorum coronæ: The History of the Pleas of the Crown, Vols 1 and 2 (London: F. Gyles, T. Woodward and C. Davis, 1736). In Volume 1, p. 60, harm extends to both the person and their goods, in the specific context of merchants in time of war.

[6] William Blackstone, Commentaries on the Laws of England, Vol. 4 (Oxford: Clarendon Press, 1769), 12.

[7] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 18 June 2022), May 1735, trial of Sarah How (t17350522-33).

[8] Newcastle Courant, 5 December 1730, 2.

[9] Francesco Guidoboni, “Giovanni Niccolò Servandoni (1695-1766), architetto” (unpublished PhD thesis, Sapienza University of Rome, 2014), 183.

[10] Derby Mercury, 28 April 1749, 4.

[11] Ibid.; Newcastle Courant, 29 April 1749, 2.

[12] National Library of Wales, Great Sessions 4/625/4, Rex v. Daniel Thomas, Glamorgan, 1783.

[13] 43 Geo III c.58. It was repealed by 9 Geo IV c.31, which came into effect on 1 July 1828, but s.12 retained the provisions about attempted murder.

[14] The Cambrian, 26 April 1828, 3.

[15] National Library of Wales, Great Sessions 4/74/4, Rex v. John Davies, Denbighshire, 1828; The Cambrian, 30 August 1828, 3.

[16] Handler, “The Law of Felonious Assault in England,” 206.

[17] Offences Against the Person Act 1861, 24 & 25 Vict c.100.

[18] Sir John Jervis, Archbold’s Pleading, Evidence & Practice in Criminal Cases, 26th edn, ed. Henry Delacombe Roome and Robert Ernest Ross (London: Sweet & Maxwell, Stevens & Sons, 1922), pp. 924 and 947 for poison, p. 930 for exposure.

[19] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 18 June 2022), October 1736, trial of Robert Page, William Orman Rod, Thomas Putrode (t17361013-5).

[20] National Library of Wales, Great Sessions 4/1010/10, Rex v . James Davies, Flintshire, 1783.

[21] A. H. Manchester, Modern Legal History (London: Butterworths, 1980), 280-286.

[22] This apology appeared in three editions of The Derby Mercury: 16 September 1790, 3; 23 September 1790, 3; 30 September 1790, 1.

[23] Manchester, Modern Legal History, 380; Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660-1800 (Cambridge: Cambridge University Press, 2003), 210.

[24] Ipswich Journal, 26 July 1783, 2.

[25] Ibid.

[26] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 18 June 2022), July 1783, trial of Daniel Hickman otherwise Hickins (t17830723-5).

[27] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 18 June 2022), January 1784 (o17840114-2).

[28] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 18 June 2022), April 1784 (o17840421-2).