Roe v Wade: the law of abortion through the ages

Everybody, at some point in their life, sees ways in which society can be changed to make life better for themselves and others. Bringing a legal challenge in the courts is one way in which ordinary citizens can bring about the change they wish to see when politicians and governments refuse to act. Women have campaigned across the world for a very long time, and continue to do so, for not only equality but for autonomy – the right to control their lives, bodies and future independent of others. This post is about one such fight, a famous US Supreme Court case called, Roe v Wade, in which two campaigning attorneys fought through the courts to give women the right to control their bodies rather than having decisions made for them by state legislatures and governments, composed mostly of men. As we look at it, we’ll take a journey through the legal history of abortion.

Background

An unmarried woman and the mother of two children, Norma McCorvey was living in Dallas, Texas, when she discovered she was pregnant with her third child and sought an abortion. Texas law at the time forbade abortions except in cases where the woman’s life was in danger, so Ms McCorvey tried to secure a safe abortion with properly qualified medical doctors by falsely claimed she had been raped, wrongly believing that this was an exception under Texas law. The only alternative at the time was an illegal, backstairs, abortion but her attempts there also came to nought. Desperate to find a safe solution to her unwanted pregnancy, Ms McCovey was put in touch with Linda Coffee, a lawyer and member of the Women’s Equity Action League, and Sarah Weddington, a lawyer who had herself been forced to travel to Mexico for an illegal abortion the year she graduated from university.

Linda Coffeee
Linda Coffee

In 1971, Henry Wade was the District Attorney for Dallas County, so it was upon him that proceedings were served to challenge as unconstitutional the Texan abortion laws. To protect Ms McCorvey’s privacy she was given the pseudonym of Jane Roe in the proceedings and so the soon-to-be world-famous case of Roe v Wade was born. She would soon be joined in the litigation by Dr Hallford and a couple named in the proceedings as Mr and Mrs Doe, more about them later.

Early law on abortion

Europe

This is a blog about legal history so let’s take a moment to examine some.

You may, or may not, think of abortion as a modern phenomenon undertaken by skilled doctors dispensing drugs or using surgical techniques. But, abortion has probably been with us since we developed our ability to reason out likely future events and use tools.

Most early civilisations had little problem with abortion. They saw it as neither immoral nor as a crime. Aristotle thought abortion a useful tool to prevent over-population saying that, “when couples have children in excess, let abortion be procured before sense and life have begun”. In his mind, sense and life began sometime after conception but before birth and took longer for a female foetus than for male one. In later centuries, Christian scholars would build on Aristotle’s ideas with the notion that life began in males forty days after conception and eighty days after conception for females. How they proposed to identify the sex of the baby in utero then when it is very difficult for us to do the same in the 21st century presents an obvious problem to using this system to proscribe abortions.

Plato, perhaps unsurprisingly, held much the same opinion as his student stating that feticide is an institution of the ideal state and should be practised whenever a woman over the ideal age for childbirth becomes pregnant. Plato seemed to temper his own opinion by stating that abortions should only be performed when the population of Athens was above 5,040. I have no idea why he chose that number nor is there any indication that it ever formed part of a legal code.

Although Aristotle’s views on abortion were fairly typical for early societies not everybody agreed. Pythagoras of Samos (yes, he of the triangle-fame), who lived around 180-years before Aristotle, believed that life began at the moment of conception and that abortions were thus morally wrong. Hippocrates, the father of medicine, was a contemporary of Pythagoras, although I have no reason to believe they met or knew each other, but the original Hippocratic Oath did mirror the views of Pythagoras on abortion, which the Supreme Court in Roe summed up as:

“I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion.”

Although Pythagoras and Hippocrates most reflect law as it stood in the 1970s they were very much the minority in their day.

Even if there was no law preventing abortions taking place that did not stop society from punishing women who underwent them, for example, the Cyrene legal code issued between 331 to 326 BC forbade women who had undergone an abortion from entering a temple or sacred place because “she is polluted with death”. https://www.academia.edu/10297925/Abortion_in_ancient_Greece

That abortion was legal and acceptable in societies like ancient Greece should come as no surprise given that leaving unwanted infants to die of exposure would have raised few eyebrows so why should abortion? Aristotle made the point that abortion was preferable to exposure and it is difficult to disagree with that.

England between the Middle Ages and the present

Religion in the Middle Ages begins to proscribe abortion for the same reason Catholicism frowns on contraception, because the Bible commands people to “be fruitful and multiply”. The earliest references to abortion in English law appear in the 13th century and followed Church teachings. Nonetheless, abortion was not widely seen as a crime and Wolfgang Muller notes in his book The Criminalization of Abortion in the West: Its Origins in Medieval Law that there were relatively few women were prosecuted for abortion in Europe during the Middle Ages.

Lord Ellenborough’s Act of  1803, 43 Geo 3 c.58, criminalised abortion, setting the penalty for abortion performed after the “quickening” at death. The quickening is the point when the mother feels the baby moving, around 13 to 16 weeks after conception. Pre-quickening abortions received less severe punishments. In 1837, things became really tough with the removal of the distinction of abortion before and after the quickening, meaning any abortion could be punished with a death sentence. The Offences Against the Person Act 1861, sections 58 and 59 made it an offence to procure an abortion or to self-abort either through the use of physical instruments or through the use of drugs. The maximum sentence was originally penal servitude for life or up to two years imprisonment with hard labour or solitary confinement. Both sections remain good law today and still carry maximum sentences of life imprisonment. Despite the OAPA’s blanket ban, abortions were still permissible if continuing with a pregnancy would “make the woman a physical or mental wreck”, R v Bourne, [1939] 1 K.B. 687, a case in which a 14-year-old girl was impregnated while being raped by five soldiers. The gynaecologist who performed her abortion was acquitted on the basis that the abortion was necessary to protect the girl’s physical and mental health. Today, the effects of the OAPA 1861 are today further tempered by the Abortion Act 1967, which permits abortion in certain circumstances.

US law prior to Roe v Wade

The American law in the mid-19th century broadly followed the English law as it stood at that point, although did not prescribe the death penalty. In 1828, New York State enacted legislation making a termination in early pregnancy a misdemeanour offence while a termination post-quickening was to be classed as second-degree manslaughter. The New York law incorporated defences for abortions undertaken for medical reasons. This became a template for many other US states.

Toward the end of the 19th century states began to remove the distinction between pre- and post-quickening abortions and increased the penalties for the offence. By the time, Ms McCorvey became pregnant for the third time in the 1970s a majority of US states had completely banned abortions except those undertaken to save the life of the mother. The ban applied even in cases of rape and incest.

The trial

The US has a strong tradition of campaigning lawyers who use the law to change and shape society in ways they feel make a positive difference to people’s lives, health and well-being, or at least that’s how it seems to an English lawyer like me. And, that is precisely what was happening in the Roe case. To strengthen their hand the lawyers found two more parties to join the action. First was a Texan doctor named James Hallford who had been prosecuted in the past for providing abortions and who was facing more charges for the same offence. Second, was a married, childless couple, known by the pseudonyms John and Mary Doe. Mrs Doe had been told simultaneously not to get pregnant due to some undisclosed mental health condition and to stop taking the pill, the couple therefore brought proceedings on the basis that if she were to get pregnant in future she would want the right to terminate the pregnancy. All three parties sought a declaration that the Texan code was void plus injunctions preventing the authorities from enforcing the abortion laws.

 

Henry Wade
Henry Wade

If you want to bring legal proceedings against someone, whether it is an individual, a company or the government, you can only do so if you have locus standi, the right to be heard in court. For our purposes, it is enough to say that this means you are directly affected by a law you want declared unconstitutional. Your relationship to the issue at hand must be sufficiently close that a court ought to hear your complaint. This is a problem for the Does because while they clearly had worries that the Texas abortion laws might at some point in the future affect them a lot of things had to happen before they would be affected by those laws. For example, there was no reason that the couple could not use an alternative contraception method to the pill, so first that had to fail. Secondly, Mrs Doe had to become pregnant and then she had to decide at that point that her mental illness was such that an abortion was the only option for her. It is quite possible that some, all or none of these things could happen. Henry Wade clearly thought the Does lacked standing to bring the case against him and sought to have their claim struck out.

Mr Wade also wanted to strike out the claim of Dr Hallford as lacking standing in so far as the prospect of future criminal charges was too speculative and because if Dr Hallford believed the charges he currently faced at the time of the proceedings were unconstitutional then the proper place to make that challenge was before the criminal court hearing his case. Mr Wade viewed Dr Hallford’s case as an attempt to circumvent the proper workings of the criminal courts.

The District Court agreed with Mr Wade that the Does lacked standing but the three judges on the panel found that Dr Hallford had a good case and allowed him to proceed. The court went on to declare the Texas abortion laws to be in breach of the US Constitution and thus void; however, they declined to grant an injunction against the state from enforcing the law, which meant that although the law was unconstitutional it remained enforceable by the State.

Everybody appealed, the Does against the dismissal of their case and Ms Roe and Dr Hallford against the refusal of the injunction. The District Attorney, appealed against the grant of declaratory relief and sought to argue that neither Dr Hallford nor Ms Roe had standing to bring proceedings at all.

Thus, the scene was set for the case to be brought to the Supreme Court of the United States.

The appeal in the Supreme Court of the United States

The arguments

Sarah Weddington for the plaintiffs put her case on the basis that the Texas state law was too vague to be permitted to stand and that it violated a woman’s right to continue or terminate a pregnancy.

OLYMPUS DIGITAL CAMERA
Sarah Weddington, pictured in 2004

The Texas law was too vague because, Ms Weddington argued, it permitted an abortion only when a woman’s life is in danger whereas in other states the law permitted abortions where the woman’s life or health was threatened. This latter approach is the more sensible says Ms Weddington because “health is a continuum” not a black and white issue. So, how is a doctor to know whether, for example, an abortion performed not because the woman’s life is in immediate danger but because continuing with the pregnancy will shorten her life, is legal or not? She argued, “he does not know whether death must be certain or whether it may be an increase in probability of her death”. Ms Weddington made many other arguments about the effect of pregnancy on women in Texas, particularly with regard to their education, employment and family. You can read her full comments here, or listen to the recordings of the legal arguments here – if you happen to be a law student then this is excellent advocacy so well worth a listen.

Next Ms Weddington turned to specific parts of the Constitution that she says are violated by the Texas law. She makes the point that in 1787, when the US Constitution was signed, there were no laws in the USA prohibiting abortions – even where English law applied the Constitution pre-dates Ellenborough’s Act and so the framers could never have regarded that as part of the existing law at the time. As such, the Ninth Amendment comes into play. That Amendment is part of the Bill of Rights and it makes clear that, “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.” Ms Weddington argued that the Ninth Amendment was breached because, “… one of the purposes of the Constitution was to guarantee to the individual the right to determine the course of their own lives” and you might think, as Ms Weddington did, that the right to continue or end a pregnancy is an important personal right affecting the course of a woman’s life.

Ms Weddington also sought to argue that by legislating against abortion, the Texas state government was interfering with the Fourteenth Amendment rights to life, liberty and due process by removing a woman’s right to choose whether to proceed with an unwanted pregnancy or not.

In response, Jay Floyd appeared on behalf of Mr Wade. He opened with a bad joke referencing his two opponents’ attractiveness that is reported to have angered Chief Justice Burger so much that he glared at Mr Floyd with such venom a witness thought he might leap across the bench at the unfortunate advocate.

Cheif Justice Warren Burger
Chief Justice Warren Burger

Mr Floyd’s approach was to argue that none of the plaintiffs had standing in the proceedings. The Does had already been disposed off and Mr Floyd repeated the lower courts reasons for excluding them. He repeated the arguments we’ve already heard for striking out Dr Hallford’s claim. Finally, he sought to strike out Ms Roe’s claim on the basis at she had already given birth by the time of the appeal and so no longer had anything to gain or lose by the action. He was successful with respect to Dr Hallford and the Does but the court held that to prevent Ms Roe continuing would effectively mean no pregnant woman whose case was based on her pregnancy could ever appeal.

The State’s substantive argument was that it had the right to govern abortions so as to protect the life of the unborn child, which harks back to a Pythagorean and Hippocratic world-view. He argued that a foetus is a person and as such their life is guaranteed by the Constitution. The Fourteenth Amendment tells us that “… nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. So, if a foetus is a person then the State is barred from doing anything to deprive the foetus of its life and would have to prosecute anybody who did. Texas cited known facts of foetal development show that a foetus is a person; however, I think that misses the point because the question is not whether the foetus is morally a person but whether they are a person within the meaning of the US Constitution and it is there that the State’s argument fails. The Fourteenth Amendment opens with the words, “[a]ll persons born…” – well a foetus by its very nature has not been born. The word “person” is used in several places in the Constitution but nearly all the uses could only apply after birth and none clearly apply to a foetus. So, the Supreme Court held that the Fourteenth Amendment cannot be read to protect the life of an unborn child.

Mr Floyd also argued that giving women the right to an abortion ignores the opinion of the father who may object to the termination, which on any reckoning is a weak argument since no law at the time required both father and mother to agree to an abortion. Perhaps a stronger argument was that women do have a choice in determining the course of the own lives, but that choice comes before, and at the point, that a woman chooses to become pregnant not after conception, which is how Mr Floyd sought to conclude his case. Justice Stewart immediately attacked the rather obvious flaw in this argument that Texas law provided no exemption in the case of rape, as Ms Roe had already discovered, and that as such the State cannot reasonably argue that it has legislated with the intention that women can make a free choice in all circumstances prior to conception.

The ruling

Mr Justice Blackmun gave the opinion of the court.

Having heard the case, which included evidence that abortion becomes more dangerous for the mother after the first trimester of pregnancy and that there is a point prior to birth at which the foetus is capable of living outside of the mother’s womb, the Supreme Court created the concept of the “compelling point”. The compelling point will come about once the foetus can have a meaningful life outside the womb. The court also identified as important, the point at which abortion becomes hazardous to the mother’s life. At these points, there are both biological and logical reasons for permitting the State to regulate abortion including to the point of prohibiting it except where necessary to preserve the life or health of the mother.

The court said that in early pregnancy, where the foetus is not viable and there is little risk to the mother then, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.”

When the stage of pregnancy is reached where the mother may be harmed by an abortion then the State may choose to regulate abortion, “in ways that are reasonably related to maternal health”.

Once the foetus is viable, “the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Texas law permitted abortion only where the mother’s life was at risk and made no distinction between safe, early abortions and those performed after the compelling point it therefore the court said that it, “cannot survive the constitutional attack made upon it here.”

The Supreme Court decision was not unanimous, and Mr Justice Rehnquist gave the dissenting judgment, which took a very legalistic view of the case. He argued that because there was no evidence of Roe’s stage of pregnancy at the time proceedings began the court had overstepped its authority by mandating what states could do in the early stages of pregnancy. He felt that by breaking down the States role in regulating abortion into three stages the court had entered the realm of legislating rather than interpreting law. Justice Rehnquist also took the view that the drafters of the Fourteenth Amendment could not have intended to protect the right to abortion, which was unknown to them.

Despite the dissension, Roe v Wade has been good law in the USA for the past 45 years. It has had an impact far beyond the USA and has influenced people and societies around the world ever since the decision was handed down on the 22 January 1973.

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The Crew of the Mignonette

 

Mignonette by Thomas Dudley
The Mignonette, drawn by Captain Thomas Dudley

 

Built in 1867, the Mignonette was a 52 foot, 19 tonne yacht that was purchased in Southampton, England by an Australian lawyer called John Want in 1883 who intended to use it as a pleasure craft in Sydney, Australia. Mr Want struggled to find a crew to sail the small vessel the 15,000 miles from Southampton to Sydney but by 19th May 1884 a crew of four were ready to set sail in the Mignonette.

Captained Thomas Dudley, the vessel reached the Atlantic Ocean at a point between the Cape of Good Hope and St Helena where, on the 5th July 1884, the skipper ordered her hove to, so the crew could enjoy a night’s sleep after a day running before a storm. As the boat lay at anchor a large wave struck it destroying the lee bulwark. Captain Dudley quickly realised that the Mignonette was sinking and ordered the crew into a lifeboat. Five minutes after the wave struck, the Mignonette disappeared beneath the water.

So, it came to be that Tom Dudley, Edwin Stephens, Edmund Brooks and Richard Parker found themselves adrift on the ocean in a small lifeboat around 700 miles from St Helena.

In their haste to flee, the crew had failed to take any significant provisions to last what looked like it would be a lengthy journey. They did at least have their navigation equipment, but they took no drinking water at all and just two cans of turnips into the lifeboat. The crew went hungry for the first couple of days and on the 7th July 1884 Captain Dudley opened the first can of turnips and shared the contents among his crew telling them that it had to last the next two days. Two days later they managed to capture a turtle, which the hungry men ate, bones and all. Their real problem though was the lack of drinking water and around the 13th July 1884 the crew began to drink their own urine to survive. At 17, the parched Richard Parker was the youngest member of the crew and he couldn’t resist the lure of the sea water all around him. He began gulping it down on the 20th July and soon after was delirious.

 

lifeboat
The lifeboat in which Richard Parker died

 

While Richard was desperate, parched and delirious other members of the crew grew more desperate still. The whole crew had discussed drawing lots to select a member of the crew to be killed and eaten but the idea fizzled out until the 21st July when the topic was reignited. By the 23rd or 24th July Richard Parker was likely in a coma but was still alive. Captain Dudley declared that they should draw lots to select a man to die and be eaten but Edmund Brooks refused to take part.

Dudley and Stephens had further private conversation on the topic, although how private a conversation in a small lifeboat could be is unclear to me. Nonetheless, they left the matter til the morning of the 24th or 25th July. That morning a silent signal was exchanged between Dudley and Stephens, although Dudley would claim that the signal was also exchanged with Brooks. Perhaps there’s no better person to tell what happened next that Captain Tom Dudley himself:

“No vessel appearing on the morning, I made signs to Stephens and Brooks that we had better do it, but they seemed to have no heart to do it, so I went to the boy, who was lying at the bottom of the boat with his arm over his face.

“I took out my knife-first offering a prayer to God to forgive us for what we were about to do and for the rash act, that our souls might be saved-and I said to the boy, ‘Richard, your time has come.’ The boy said, ‘What me, Sir?’ I said, ‘Yes, my boy.’

“I then put my knife [into the side of his neck.] The blood spurted out, and we caught it in the bailer and we drank the blood while it was warm; we then stripped the body, cut it open, and took out his liver and heart, and we ate the liver while it was still warm.”

Dudley had decided, quite deliberately, to kill young Richard Parker slowly by bleeding him because in so doing the exsiccated men could collect his blood and drink it to slate their thirst.

After drinking Parker’s blood, the crew feasted on their cabin boy’s body. Even Captain Dudley, the killer, found the scene sickening:

“I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal we all was like mad wolfs who should get the most and for men fathers of children to commit such a deed we could not have our right reason.”

On the 29th July, the three survivors spotted the sails of a German barque, Montezuma, and they were saved. The crew of the Montezuma noted that all three survivors had blood and human flesh under their fingernails and that the bottom of the lifeboat was strewn with human body parts.

 

RichardParkerTombstone
Richard Parker’s grave

 

The Montezuma took Dudley, Stephens and Brooks to Falmouth where they made no secret of their actions. Indeed, Dudley made an official report, as the law required him to do, that included the murder of Richard Parker and the consumption of his body by the surviving crew. The three men believed that no crime had been committed by a custom of the sea that permitted such actions. In fairness to them, they had every reason to so believe (although I think I would still have spoken to a lawyer before admitting murdering and eating somebody).

Many years before Mignonette was built the French ship Méduse ran aground 30 miles from the coast while attempting a dangerous crossing from Madeira to Saint-Louis. Attempts were made to lighten the ship by removing the cargo onto rafts; however, before this could happen the ship began to break up and the captain ordered the 400 crew and passengers on board to abandon ship onto the raft, which was to be towed to safety by the ship’s launches. The raft was completely unsuited to the task, especially since most of it was underwater and with 145 men and one woman onboard, it was unstable even in calm water. Unfortunately, a gale kicked up causing the captain to fear his launches would be overwhelmed by those on the raft trying to climb on board.

Captain de frégate Viscount Hugues Duroy de Chaumareys cut the tow ropes and sailed away to safety.

Fights broke out among those on the rafts with people fighting to gain the centre of the raft, which was the safest part of it. On the first night, 20 men were killed or committed suicide. Dozens more were washed overboard. By day four, the rations had run out and some of the 67 left alive were eating those who had died. By the eighth day, the strongest 15 men threw all the other survivors into the sea. Those 15 survived another four days until they were found by chance by the Argus.

None of the crew were convicted.

Then there was the Nantucket bases whaler, Essex, which in 1820 was attacked by a whale and sunk. The twenty-man crew were stranded at sea for 95 days during which time they ate the bodies of those who had died. When not enough men died naturally, they drew lots chose men to die for the greater good. Another 17-year-old, Owen Coffin, lost and was shot by his friend Charles Ramdsell who was also chosen by lot. Eight men of the original 20 survived. None were prosecuted and all eight were back at sea within months of being rescued. The story of the Essex inspired Herman Melville to write Moby Dick.

The murder and cannibalism of the Mignonette, Méduse and Essex were by no means exceptional in the Age of Sail where similar incidents are not quite two a penny, but they are far more common that you’d like to imagine. Despite the frequency of these events, surprisingly few cases actually made their way to the courts. Two that did are the “Saint Christopher Case” and US v Holmes (1842), 26 F. Cas. 360 (C.C.E.D. Pa. 1842).

In the Saint Christopher Case, seven Englishmen were lost at sea. They decided to kill and eat one of their number, ironically the man who had proposed the scheme to draw lots. At trial the judge is said to have pardoned them saying their crime was washed away by the inevitable necessity of their situation. Unfortunately, this case does not appear to have been reported in any legal journal and is found only in medical works.

In US v Holmes, the William Brown struck an iceberg and sank. The crew escaped into lifeboats; however, fearing that his lifeboat was overloaded seaman Alexander Holmes forced up to 16 passengers out of the boat and to their deaths in the icy cold water. After being rescued, Holmes was tried for manslaughter after a grand jury rejected an indictment containing a count of murder. The trial judge informed the jury that necessity could be a defence if their felt that Holmes was faultless and owed no duty to the victim. The jury convicted him, and he was sentenced to six months imprisonment and a $20 fine. He did not appeal, so the defence of necessity was never tested by a higher court.

So it is that we return to our three anti-heroes of the sea and our story: Dudley, Stephens and Brooks.

Unsurprisingly to the modern mind, the three killer-cannibals were put on trial for murder. This in itself was controversial at the time, especially among seafarers. Even the family of Richard Parker publicly forgave his killers. Brooks, no doubt fearing he might be made to take a long walk to the short drop if he did not cooperate, quickly turned Queen’s Evidence and testified for the Crown. Dudley and Stephens argued that their situation was such that they had no choice but to kill and consume young Richard Parker.

The judge appointed to hear the case was Baron Sir John Huddleston, a distinguished advocate who built a practice first in Oxford practising poor law but then moved to criminal law in the Middlesex Quarter Sessions and Old Bailey. He was appointed Baron of the Exchequer of the Exchequer of pleas, hence the titled Baron Huddleston. As a judge his career is most noted for the mess he made of the trial of Dudley and Stephens as well as for his reputation for pomposity.

 

SirJohnWalterHuddleston
Baron Huddleston

 

Baron Huddleston is said to have already decided on the law and verdict before the trial began. He pressured the jury to return a special verdict stating the facts of the case but not reaching a verdict, which would leave the final say up to Huddleston, B. The jury did as commanded, returning the first special verdict in an English court in 99 years. Although the judge appeared to have planned this out in advance, he nonetheless made a mistake in his findings by failing to find that the Mignonette was subject to the laws of England – this is important since the Crown Case Reserved Court had found in 1876 that English courts have no jurisdiction over foreign vessels sailing within British territorial waters, The Queen v Keyn (1876) 2 Q.B.D. 90 (better known as the Franconia Case). Huddleston, B. resolved to fix this problem by changing details of the verdict after it had been given! Nor did the trial judge remember to put his verdict to the jury before entering into the record that the jury found the verdict in accordance with the judgment of the court.

The case of The Queen v Dudley and Stephens (1884) 14 Q.B.D. 273 came to the Queen’s Bench Division of the High Court on the 9th December 1884 where the court, led by the Lord Chief Justice, Lord Coleridge, glossed over the failings of the trial judge before going on to give what would become the leading case on the defence of duress by necessity.

Lord Coleridge quoted, with approval, Lord Hale’s comments in Hale’s Pleas of the Crown which were that where a man faces death at the hands of an assailant unless he kills another innocent, “… he ought to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant.” From there Lord Coleridge goes through an extensive examination of leading textbooks of the day, most of which provide little help and none of which provide any legal authority for their assertions save for the word of their learned authors, a practice of which I am regularly critical.

In the end though, the court found little comfort in the texts to which it referred saying:

“It would have been satisfactory to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way they should be amended”.

Thus, their Lordships are left to earn their money and make decisions for themselves, which they do very well in my humble opinion. Lord Coleridge takes a practical approach, expressing the purpose of the law as he sees it and discussing briefly the relationship of law and morality:

“Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so….

By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’—”

His Lordship went on, showing clear sympathy with the accused men, when he concluded thus:

“It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.”

R v Dudley and Stephens establishes the principle in English law that necessity may be a defence, but not a defence to murder because no human life is more important than another. That is a principle that remained untouched until Re A (conjoined twins) [2001] 2 WLR 480 when the Court of Appeal accepted that in some very limited situations it would be permissible to end one life to save another. Re A (conjoined twins) involved a set of conjoined twins who were born together and destined to die together unless they could be separated surgically. However, the surgery would certainly kill one of the babies. In those exceptional and almost unique circumstances it is permissible to rank one human life above another, not because it is more important but because the prospects of survival of one is greater than those of the other and because without that action both would certainly die.

Despite having been convicted Dudley and Stephens were not executed, at the insistence of Queen Victoria they spent six-months imprisonment as part of a conditional pardon she was persuaded, seemingly against her will, to offer them.

Despite surviving the Mignonette, all three men floundered for the rest of their lives. Brooks died in 1919. Stephens took to drink and died in 1914 while Dudley moved to Australia where he died of the plague just a few years later in 1900.

The Witchcraft Acts

 

There is a secret society of Witches in every country,” said my grandmother. “An English witch will know all the other witches in England. They swap deadly recipes. Goodness knows what else they talk about. I hate to think.

Many people think that Helen Duncan was a witch and the last witch to be convicted in the UK. Both of these facts are wrong. She wasn’t a witch because by time of her crimes the Witchcraft Act of 1735 no longer recognised witches as real, and she wasn’t the last person to be convicted under the Witchcraft Act either: Jane Yorke was.

Today the idea of witchcraft sounds like superstitious nonsense but in the Sixteenth Century people commonly ascribed bad events, such as the death of a child or a bad harvest, to witchcraft and evil spirits. So, in 1542, while Henry VIII reigned, Parliament passed the first Witchcraft Act, which criminalised witchcraft and made it punishable by death, which in those days meant burning at the stake. The 1542 Act said that it was a crime to,

“… use devise practise or exercise, or cause to be devysed practised or exercised, any Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries to thentent to fynde money or treasure or to waste consume or destroy any persone in his bodie membres, or to pvoke any persone to unlawfull love, or for any other unlawfull intente or purpose … or for dispite of Cryste, or for lucre of money, dygge up or pull downe any Crosse or Crosses or by such Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries or any of them take upon them to tell or declare where goodes stollen or lost shall become”

The 1542 Act lasted just five years before it was repealed; however, it made a comeback early in Elizabeth I’s reign as the Witchcraft Act 1563. The 1563 Act was slightly more liberal in only calling for the death penalty in cases where somebody had been harmed by the actions of the witch; such an offence was a felony, which meant that such offences fell under the jurisdiction of the common law courts rather than the ecclesiastical courts that had tried Henry VIII’s offences.

 

Portrait_of_Helen_Duncan
Helen Duncan – the last woman to be imprisoned for witchcraft in the UK

 

Four decades later, James I was a king so intrigued by demons that he wrote and published a book on demonology. So, it will come as no surprise that during the first full year of his reign a third Witchcraft Act was passed. By now minor offences were punished by a year in prison, although a second offence meant death by hanging. In previous periods, witches were executed by burning but under the Witchcraft Act 1604 burning was reserved only for offences that were also acts of petty treason, essentially an aggravated form of murder involving the betrayal of a superior, e.g. a wife killing her husband, a clergyman his prelate or a servant his master or mistress.

The Acts passed under Henry VIII, Elizabeth I and James I all had one thing in common: they all assume that witches are real and by inference witchcraft, magic, conjuring and evil spirits are also all real. The last execution for witchcraft took place in Devon in 1685 while the last trials for witchcraft were in Leicester in 1717.

Attitudes had changed so much by the reign of George II that when a new Witchcraft Bill was introduced to Parliament it was met by laughter from MPs in the chamber. The Witchcraft Act 1735 stands out from its predecessor Acts because it starts from the position that witchcraft is impossible. Instead it criminalised pretending to be a witch and repealed all laws outlawing witchcraft itself. The new law defined the crimes thus:

“… if any Person shall, from and after the said Twenty-fourth Day of June, pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration, or undertake to tell Fortunes, or pretend, from his or her Skill or Knowledge in any occult or crafty Science, to discover where or in what manner any Goods or Chattels, supposed to have been stolen or lost, may be found…”

(my emphasis)

Section 4 of the 1735 Act imposes a one-year prison sentence following conviction on indictment. During that year offenders were to be taken once a quarter to town on market day and made to stand in the pillory for one hour where they could be seen by everyone passing by. Where a court felt a person was likely to reoffend they could demand sureties be taken to ensure future good conduct and had the power to hold the offender in prison until suitable sureties were found.

Helen_Duncan_fake_ectoplasm

209-years later, George VI sat on the throne, World War 2 was in its final stages in Europe and Helen Duncan was a successful medium earning a good living holding séances in Portsmouth. She had a previous conviction for a similar offence committed in Scotland in the 1930s. Ms Duncan was by all accounts a popular medium known for séances in which spirits would appear along with ectoplasm! The problem for Ms Duncan was that she was, of course, a fraud. Photographs showed that the spirits were puppets and scientific analysis showed the ectoplasm to be egg whites mixed with chemicals, swallowed before the show and regurgitated during each performance.

Ms Duncan caught the attention of the Royal Navy when in 1941 she claimed the spirit of a deceased sailor from HMS Barham, a Queen Elizabeth class battleship, had come to her to report that his ship had been sunk killing 862 men. The news of the sinking was not made public until 1942; however, the information had been leaked and relatives of those onboard were informed so it is likely that Ms Duncan heard the news from one of them. In 1944, two Navy lieutenants attended a séance and left so disgusted by what they saw that Lieutenant Worth made a complaint to the police. Initially arrested under section 4 of the Vagrancy Act 1824 but was eventually tried under the Witchcraft Act 1735, which carried a heavier penalty.

Ms Duncan contested her trial on the basis that it was only an offence to be a false medium, Ms Duncan argued that she was not guilty as her powers were real. The trial judge barred Ms Duncan from demonstrating her abilities in the courtroom to the jury who quickly convicted her of a single count under the Witchcraft Act 1735. She was sentenced to nine-months imprisonment. The case caused Winston Churchill, then Prime Minister, to write to the Home Secretary complaining that court resources were being wasted on “obsolete tomfoolery”.

 

198 Romford Rd 1
The scene of the last crime to be committed under the Witchcraft Act 1735

 

Many think that there ends the history of trials under the Witchcraft Acts in England but there was one more case to be heard: Jane Yorke. Ms Yorke was a 72-year-old woman who claimed to have a spirit guide who many people claim was a Zulu, although Ms Yorke herself did not use that term. Ms Yorke did not charge for séances, but participants were invited to make a cash donation should they wish to do so. Unfortunately, for Ms Yorke an allegation must have been made that she was a fraudulent medium because undercover police officers attended a séance and were told elaborate details about non-existent family members, e.g. a brother who had burned alive during a bombing raid. Tried at the Old Bailey in September 1944 Ms Yorke was convicted of seven counts under the 1735 Act. She was luckier than Ms Duncan and was sentenced to a fine of £5 and made to give an undertaking that she would conduct no more séances.

Ms Yorke was the last person in British history to be convicted under the Witchcraft Acts; the 1735 Act was finally repealed by the Fraudulent Mediums Act 1951 after 216-years on the statute books. The 1951 Act in turn was repealed by Schedule 4 of The Consumer Protection from Unfair Trading Regulations 2008, which gave effect to an EU directive designed to protect consumers from unfair sales and marketing practices.

Today we think of witchcraft trials as being things of ancient history but Ms Duncan and Ms Yorke’s cases remind us that the Witchcraft Acts survived into modern living memory, even if they were no longer focused on finding actual witches.

Clarence Gideon

gideon
Clarence Earl Gideon

Having been charged in 1961 with the felony offence (which in the US means a crime that attracts a sentence of more than a year imprisonment or death) of breaking and entering a pool hall with intent to commit larceny in Panama City, Florida, Clarence Gideon appeared in court for trial and duly asked the judge to appoint a lawyer to represent him. The judge refused, Mr Gideon was convicted and sentenced to five years imprisonment. So sets the scene for what would become a case that would eventually strengthen the rights of citizens facing trial not just in Florida but across the entire USA.

 

To modern ears (well those outside of the British Parliament and Legal Aid Agency) the idea that somebody facing prison should be denied the right to a lawyer is an anathema. It may also be a surprise given that Constitution says in the Sixth Amendment that, [i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed… And to have the Assistance of Counsel for his defence.” Originally the protections in the Bill of Rights applied only to the Federal government; however, the Fourteenth Amendment requires States to observe and obey those protections as well. It states that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That phrase “due process” could be taken to mean that if a person is entitled to representation under the Sixth Amendment then breaching that right also means that the trial has not been conducted in accordance with the Fourteenth Amendment.

 

Let’s look at that line in the Sixth Amendment, “have the Assistance of Counsel for his defence”, which would seem to suggest that the judge had breached Mr Gideon’s Constitutional rights; however, that’s not how the Sixth Amendment was understood in 1961. You see in 1942 the US Supremes (I assume that’s how American lawyers refer to their Supreme Court Justices) had heard the case of Betts v Brady 316 US 455 (1942), which turned on an identical point namely whether a person who could not afford a lawyer had the right to have one appointed. Betts held that the Sixth Amendment provided no right to have a lawyer appointed in state courts for felony offences except where you faced a sentence of death. Justice Owen Roberts gave the majority judgment, which held that the right to counsel merely prevented the state from interfering in a defendant’s request for representation rather than requiring a state to offer counsel. In other words, a court cannot stop you having a lawyer but the State government is under no obligation to provide one for you to meet its obligations under the US Constitution.

 

That view makes some sense if you remember that when the Bill of Rights was ratified in 1791 there was no right to a defence lawyer in most criminal trials in England and Wales – William Hawkins, a jurist, writing in 1721 encapsulated the view that criminal defence “… requires no manner of skill to make a plain and honest defence which is always the best…” (well that’s me out of a job then I guess). Indeed the Supreme Court considered the laws of the thirteen original states at the time the Bill of Rights was ratified and noted that each state had its own rule on the appointment of Counsel, which may have suggested that the original framers of the Constitution did not intend the Sixth Amendment to impose an obligation on states to provide free lawyers for their citizens. At the heart of Betts is a uniquely American legal tussle that many English lawyers like myself struggle to understand as between the rights of the individual States to pass laws governing themselves and the rights of the Federal government to make laws binding the States – at first glance some may see some similarities between the UK and EU relationship but my impression is that the US version runs far deeper than ours.

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Abe Fortas

 

You can always tell a bad legal rule because it breeds exceptions and by the time Mr Gideon appeared in court there were several exceptions to the general rule. Betts itself established the principle that States should provide representation to defendants if the case was especially complicated or there were special circumstances such as illiteracy that would prevent the defendant from making an effective defence; Powell v Alabama had established the right to free representation in cases where the defendant could be sentenced to death.

 

Mr Gideon applied to the Florida Supreme Court for a writ of habeas corpus demanding his release as he had been denied his right to due process by the refusal to appoint counsel in breach of the Constitution. His application was denied and so he hand wrote a five page petition for an order of certiorari (following the Woolf reforms these are now called quashing orders in the UK) from the US Supreme Court against the decision of the Florida Supreme Court. The petition was duly accepted for argument before the court and preparations began for the hearing.

 

The US Supreme Court isn’t silly, they know how difficult it is for an unrepresented layman to present a case effectively and so they require cases to be presented by a professional advocate. So, they appointed Abe Fortas a high profile lawyer who would one day become a Justice of the Supreme Court himself. Mr Fortas was based in Washington who appeared regularly in the Supreme Court. He was a partner in a large firm that had significant resources to devote to Mr Gideon’s case. Facing Mr Fortas was the 28 year old Bruce Jacob, a relatively inexperienced assistant attorney general in Florida who apparently had very few resources in contrast to those of Mr Fortas – an interesting reversal of firepower for Mr Gideon. Realising that this case would have a serious impact on other States, Mr Jacob took the sensible decision or contacting other States Attorney Generals for assistance. He received responses but probably not quite the ones he expected as 22 other states filed briefs… in support of Mr Gideon!

Bruce_Jacob_headshot
Bruce Jacob

The other states had recognised that it was time to bring the rule in Betts to an end because delays caused by unrepresented defendants led to unfairness, delays and excessive court and prosecutorial costs – they actually wanted defendants to be properly represented, a lesson today’s UK government would do well to learn.

 

Ultimately, Mr Jacob put up a good fight on behalf of Florida but he faced a hostile panel and there was little doubt about the result. The Supremes held that representation in criminal felony trials is a fundamental right guaranteed by the US Constitution. The judgment was written by Justice Hugo Black – the only surviving member of the court that heard Betts and one of the minority who had felt that Betts was wrongly decided in 1942. Mr Gideon’s case was remitted back to the Florida Supreme Court with a direction that that the case be reconsidered in light of their opinion. This was done, the Florida Supreme Court directed a retrial at which Mr Gideon was both represented and acquitted.

 

A few years later the constitutional right to a lawyer would be extended again to cover misdemeanour offences as well as felonies.

 

As an interesting footnote, Mr Fortas would be appointed to the Supreme Court as an associate justice four years after Gideon. In 1968 President Johnson put his name forward as Chief Justice of the Supreme Court but he would be unsuccessful. The Republicans had taken a dislike to Mr Fortas after he successfully represented his friend, Lyndon B. Johnson to overturn a court order barring him from standing for election while an investigation into vote rigging was ongoing. The justice who heard Mr Fortas’s arguments and overturned the bar…. Justice Hugo Black. He was the first person to fail to win Senate approval as Chief Justice since 1795. In 1969, Mr Fortas resigned from the Supreme Court entirely and returned to private practice after agreeing to provide advice to another friend in return for $20,000 per year for life. Mr Jacob would become a Professor at Ohio State University. Mr Gideon married again but died in 1972, The local chapter of the American Civil Liberties Union later added a granite headstone, inscribed with a quote from a letter Gideon wrote to Mr Fortas, “each era finds an improvement in law for the benefit of mankind.”

Tuberville v Savage

English law is a funny old thing, made up of statutes enacted by Parliament and case law created by judges – judges don’t often admit to creating law, instead most like to pretend that they are more like dancers giving their own interpretation of what Parliament intended, or maybe sculptors examining a piece of marble and uncovering the shape of the law within. The truth of course is that they create law all the time.

 

Murder is an entirely judge made law – there is no Act of Parliament creating an offence of murder. Equally, while the various assault offences are today codified, mostly by the Offences Against the Person Act 1861, much of the law on assault comes from the judges.

 

One such example worthy of mention is the case of Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684 an elderly case even by the standard of the legal system but nonetheless still one that governs our understanding of the law on assault 350 years after it was decided. This is particularly remarkable given that Tuberville is not a criminal law case! It was a civil case heard before the Court of the King’s Bench – the forerunner to our modern Queen’s Bench Division of the High Court.

 

In 1669, Tuberville and Savage exchanged angry words, which included Savage insulting Tuberville . In response, Tuberville put his hand to his sword and uttered what would become possibly the most famous sentence in English criminal law, “If it were not assize-time, I would not take such language from you.” The assize was effectively a travelling court made up of judges who traipsed around the country hearing cases in towns that had arisen since their last visit. Naturally, a man named Savage wasn’t about to put up with somebody placing his hand on his sword during an angry confrontation. He attacked Tuberville striking him to the face and, in the process, removing Tuberville’s eye.

 

Most people imagine that Tuberville was the defendant having been prosecuted for placing his hand on his sword – an assault in criminal law is complete when the victim fears immediate unlawful violence and the defendant intends him to have such a fear; however, the truth is that Savage was the defendant to a civil action brought against him by Tuberville. Savage argued that he had acted in self-defence when he struck first because he genuinely believed that Tuberville was about to attack him with the sword he had put his hand on. In response, Tuberville made the point that there was no force in this argument since the words spoken at the time made clear that there was no immediate threat in his action and thus that there was nothing to defend against.

 

The judges hearing the case (I can find no record of their names) ruled in Tuberville’s favour saying, “… the declaration of the plaintiff was, that he would not assault him, the Judges being in town; and the intention as well as the act makes an assault.” So in saying that he would not attack, the threat implied by the hand on the sword was vitiated.

 

Tuberville remains today good law; by way of example it was cited in R v Ireland [1996] EWCA Crim 441 when the court had to decide whether silent telephone calls that caused psychological harm could amount to an assault.

Donoghue v Stevenson

Mrs Donoghue
May Donoghue

Today I want to talk about one of the most famous and important legal cases in English law. It took a relatively minor incident and created a legal precedent that changed how English lawyers view the balance of rights between consumers and manufacturers. In so doing, it kick started what would eventually lead to the modern consumer protection laws that we enjoy today.

In the days before our modern consumer society there was very little need for laws to protect consumers but times change and law must change with the times. At the start of the 20th century the legal view on consumer protection took a decidedly Victorian approach – essentially unless you had a contract with the manufacturer and the manufacturer had breached that contract you were on your own. One senior judge even wondered publicly whether the law had any business ensuring that manufacturers of food and drink took care not to poison their customers! There were a couple of exceptions that allowed non-parties to the contract to obtain damages but the general principle was no contract, no damages.

So it was that late in the evening of Sunday the 26th August 1928 a Mrs May Donoghue went to the Wellmeadow Café in Paisley to meet her friend. The friend, whose name seems lost to history, ordered what I imagine was some type of ginger beer float (it consisted of a tumbler of ginger beer and an ice cream) for Mrs Donoghue.

What happened next is surprisingly unimportant but nonetheless a subject of some debate. Mrs Donoghue averred in her pleadings when she later sued the manufacturer of the ginger beer that the owner of the café poured half the bottle of ginger beer over her ice cream, which she ate. Her anonymous friend then poured the remaining beer into Mrs Donoghue’s tumbler at which point a dead and partially decomposed snail put in an appearance. Mrs Donoghue quickly felt ill and says she was later admitted to hospital for sever gastro-enteritis. Nobody seems to have asked why Mrs Donoghue appears incapable of pouring her own ginger beer but then maybe most lawyers mind don’t focus on the unimportant details as much as mine.

Mr Stevenson, the manufacturer of the ginger beer, appears to have felt differently about what happened that evening judging by the reported comments of W.G. Normand KC, Solicitor-General for Scotland who appeared before the House of Lords for Mr Stevenson when the case eventually made its way there. He wrote that he expected to lose at the House of Lords but said that if the case were actually tried on the facts he felt Mr Stevenson had a good prospect of winning – presumably he had some instructions on the facts that made him so confident. As it is, the case was never tried so we do not know whether Mrs Donoghue was really poisoned by a dead snail or whether it was a very determined lie to get cash from an innocent fizzy pop maker.

Donoghue v Stevenson is perhaps the most famous case in English law but anybody paying attention should already be wondering why – the incident happened in Paisley, Scotland. Yes, the most famous case in English legal history is… Scottish! Worse still Donoghue v Stevenson isn’t even the case’s real name – its proper name is M’Alister (or Donoghue) (Pauper) v Stevenson.

But, before we talk about Donoghue we need to look at the history that let up to it. Eighty-six years before Mrs Donoghue found her snail the Court of the Exchequer heard the case of Winterbottom v Wright (1842) 10 M&W 109 which involved a postman injured while driving a mail coach which collapsed as it was being driven. Mr Winterbottom sued Mr Wright, who was the man contracted to ensure the coach was safe, for negligence. The Court held that Mr Winterbottom had no cause of action against Mr Wright as there was no contract between them. Baron Alderson said:

“The only safe rule is to confine the right to recover to those who enter into the contract; if we go one step beyond that, there is no reason why we should not go fifty.”

At this point we can say that the balance between consumers and manufacturers was firmly tilted towards the rights of manufacturers; proof, if you needed it that in Victorian England individuals and their health were less important than business.

The situation was slightly different in the 1869 case of George v Skivington when Mr George bought some hair products for his wife from a Mr Skivington who was aware that the dye was to be used by Mrs George. The product was defective and caused injury to Mrs George. Now you may be thinking that given what we’ve heard about the ruling in Winterbottom 20-odd years earlier that the result in George should be a foregone conclusion, but you’d be wrong. You see while the judges in George saw the problem as a contract law one, Baron Cleasby saw negligence by a vendor/manufacture as analogous to the situation in fraud. It had been established in Langridge v Levy that a vendor who is guilty of fraud is liable to anybody who “has been injured by that fraud, although not one of the parties to the original contract, provided at least that his use of the article was contemplated by the vendor”. He went on to say that if you substitute the word “fraud” for the word “negligence” then the situation in George is analogous to that in Langridge. In that case a gun was sold to a father for use by his son, the vendor knew that the gun was dangerous. The gun exploded in the son’s hand causing injury. Chief Baron Kelly reasoned that where a vendor knows a product is to be used by another person then his liability for any unskilful or negligent acts will extend to that third party. Baron Pigott felt though that if the vendor did not know who the ultimate end user would be then his liability may not extend to that person.

Mrs George was only able to recover damages though because Mr Skivington was both the vendor and manufacturer of the defective hair dye. Had it been made by some other person not part of the contract with Mr George the result may have been different.

It’s worth remembering at this point that in 1869, Mrs George could not have legally purchased the hair product for herself as the legal identity of married women was entirely subsumed into that of her husband. Thus, if the court had held that only the legal purchaser, i.e. Mr George, could sue for injuries caused to him that would mean that a married woman could never claim compensation for injuries caused to her by faulty goods since she could never be party to the contract. This began to change a decade later with the passing of the Married Women’s Property Act 1879 but change would take a long time and is a topic for another day.

By the 1870s our balancing scales have tilted a little way towards the consumer but are still heavily weighted in favour of the manufacturer. Currently, the only way a consumer can secure damages for injury is to show that they have a contract with the manufacturer or that the manufacturer/vendor has been negligent or fraudulent in some way and – if Baron Pigott was correct – that you are somebody known to the vendor as being the ultimate end user of the product. At this stage, the ability to recover damages is firmly part of contract law and it feels as if tortious liability is an alien concept. Sadly, for one ship’s painter that wasn’t about to change any time soon.

In the early 1880s a man fell off a stage and hurt himself. The stage in question was suspended from the side of ship that was being painted in a dry dock. It was secured in place by ropes provided by the dry dock’s owners; however, the ropes were damaged and snapped causing the stage to give way. The man who fell was a painter employed by an independent contractor. He had no contract with the dry dock owner so could not sue for breach of contract – the same problem that stopped Mrs Donoghue suing the café owner. Our falling painter therefore sued in tort arguing that the owner of the dry dock owed him a duty that had been breached by the provision of damaged ropes. The case became known as Heaven v Pendle (1883) 11 QBD 503

The court disagreed with the painter and found against him – I mean why would anybody have a duty to ensure that the ropes they give you to hang off the side of a ship are fit for that purpose? However, Lord Brett, the Master of the Rolls (at the time the third most senior judge in the country behind the Lord Chancellor and Lord Chief Justice) was clearly a more modern thinker and disagreed with his brother judges saying in a dissenting judgment that:

“Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary skill and avoid such danger”. 

Because his was a dissenting judgment his words were obiter dictum nonetheless what he said laid the foundation for what half a century later would become the ground changing neighbour principle espoused by Lord Atkin in Donoghue.

Now, we find ourselves in 1932 where the Appellate Committee of the House of Lords (a now defunct 20th century appeal court) is deciding whether Mrs Donoghue has a cause of action. You see, the case of Donoghue is not about whether there was a snail in a bottle of ginger beer. It is not about whether Mr Stevenson’s factory was or was not causing a risk to public health. The case is solely about whether Mrs Donoghue had the right to sue Mr Stevenson. In 1932, the legal position facing Mrs Donoghue was that if Mr Stevenson had sold the ginger beer direct to Mrs Donoghue’s unnamed friend knowing that Mrs Donoghue would be the ultimate consumer then she would have a right to sue in contract law. But following the precedent set in Heaven the manufacturer of the beer would appear to owe no duty of care to Mrs Donoghue.

Enter Lord Atkin.

Appearing before the House of Lords, George Morton, KC, argued that there were no previous cases on precisely the point in Donoghue and that the authorities that did exist were contradictory. He argued that although at that time a manufacturer owed a duty only to those with whom they had a contractual relationship unless the articles were dangerous per se or dangerous to the knowledge of the manufacturer but that such a strict interpretation of a manufacturers duty of care was not consistent with the public interest. He went on to say:

“When a manufacturer puts upon a market an article intended for human consumption in a form which precludes the possibility of an examination of the article by the retailer or the consumer, he is liable to the consumer for not taking reasonable care to see that the article is not injurious to health. In the circumstances of this case the respondent owed a duty to the appellant to take care that the ginger-beer which he manufactured, bottled, labelled and sealed (the conditions under which the ginger-beer was put upon the market being such that it was impossible for the consumer to examine the contents of the bottles), and which he invited the appellant to buy, contained. nothing which would cause her injury”

In response, Scotland’s Solicitor-General, W.G. Normand, argued that in English law the manufacturer owed no duty to the ultimate consumer of a product unless that consumer had a contract with the manufacturer. He saw Mrs Donoghue’s case as an attempt to introduce a third exception to the rule that a manufacturer is not liable in contract law (the others being fraud and negligence). He posed this question, “It is said that people ought not to be allowed to put on the market food or drink which is deleterious, but is there any real distinction between articles of food or drink and any other article?” To most modern readers the answer is obvious, a resounding, “yes of course there is a bloody difference” but to lawyers raised in the Victorian era the question no doubt raises issues about freedoms and rights of businesses – you may wonder whether the rights of those consuming or using the products even entered their heads sometimes, but of course we know now that Mr Normand expected his client to lose.

Today, well advanced through the second decade of the 21st century as we are, the notion that a manufacturer of a food product should not be held responsible for defects in his products that could harm or even kill people sounds bizarre. But, in the 1920s it seems, from what I have read, that drinks were particularly dangerous compared to those we enjoy today. None more so than the ginger beer featured in Bates v. Batey & Co., Ld. [1913] 3 K. B. 351, which exploded causing injury to Mr Bates. A jury found in Mr Bates favour on the basis that had the manufacturer of the ginger beer taken reasonable care to examine the bottle then they would have recognised it was defective; a point Lord Atkin would pick up on when dealing with his own ginger beer case.

Lord Atkin gave the leading judgment in Donoguhue and, I have no doubt, drew inspiration from Lord Brett’s judgment in Heaven, to expound what came to be known as his neighbour principle. I said in the very first post on this blog that I might look at the Ten Commandments at some point, while not quite the Commandments, Lord Atkin did draw on Biblical teachings saying, “[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbour… You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Lord Atkin did not take this literally, indeed he said in his judgment that the law cannot recompense every moral wrong inflicted upon people and that rules of law exist to limit the remedies available. His solution to limiting liability was to ask, “who is my neighbour?”

“The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in. contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

He went on to make the point that as the law stood at the time a consumer poisoned by the negligence of a food manufacturer would have no recourse in law either against the manufacturer or the purveyor of the food since the purveyor would not have been negligent and  pointed out that this principle extends far beyond food to a whole host of non-food items that could be purchased for use by another person, such as soap or household cleaners that might be used by the purchaser’s family, servants or guests. In his words,

[i]f this were the result of the authorities, I should consider the result a grave defect in the law, and so contrary to principle that I should hesitate long before following any decision to that effect which had not the authority of this House… I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”

His Lordship turned his attention to the case of Bates saying that,

“the manufacturers must have contemplated the bottle being handled immediately by the consumer, they owed a duty to him to take care that he should not be injured externally by explosion, just as I think they owed a duty to him to take care that he should not be injured internally by poison or other noxious thing.”

As in Donoghue, Mr Bates had no contractual relationship with the manufacturer of the ginger beer but Lord Arkin did not see that as a problem pointing out that this is the case with a great many things, such as a gas fitter installing equipment that could cause harm to a great many people.

Concluding his judgment, Lord Atkin pointed out that nothing he has suggested would be contradicted by members of the public in either England and Wales who would then, as we do today, expect the law to protect them in their everyday lives. He also noted that the USA (or New York at least) was already ahead of the game; the New York Court of Appeals had already decided MacPherson v. Buick Motor Co. 217 N. Y. 382 that did for the US what Donoghue was about to do for the UK.

Lord Tomlin perhaps went further that Lord Atkin in his judgment saying,

“I think that if the appellant is to succeed it must be upon the proposition that every manufacturer or repairer of any article is under a duty to everyone who may thereafter legitimately use the article to exercise due care in the manufacture or repair. It is logically impossible to stop short of this point. There can be no distinction between food and any other article. Moreover, the fact that an article of food is sent out in a sealed container can have no relevancy on the question of duty; it is only a factor which may render it easier to bring negligence home to the manufacturer.”

In the years since Donoghue was decided I think it is fair to say that while Lord Atkin took the credit for the judgment, it is Lord Tomlin’s view that best reflects our modern view of the condition in which products should reach their end user. Nonetheless, in its day Lord Atkin’s neighbour principle set the scene for the future development of the law taking us from the dark ages where only the purchaser could recover goods if he had a contract with the manufacturer to an age where manufacturers are expected to ensure the safety of their products for anybody who may ultimately turn out to be the end user.

Regina v R

Today we are going to take a look at a really important case in English and Welsh criminal law, one that made headlines and overturned a centuries old legal principle that should never have existed if anybody had bothered to do their job properly over the previous couple of hundred years.

On the 12th November 1989, Mr R telephoned his wife, who had left the family home with their young child, some 22 days earlier to live with her parents. Mr R told his wife that he planned to “see about a divorce”. Mrs R’s parents were out at around 9pm that night when Mr R attended his in-law’s home. He forced his way inside and attempted to have sex with his wife against her wishes, choking her as he did so.

Mrs R made a complaint to the police and Mr R was arrested. He was interviewed and made full admissions to the assault and attempted rape. It may not have been a surprise to learn that he was charged with assaulting his wife but it may well have come as a shock to the lawyers of the day to hear he was also charged with attempted rape. You see for the 253 years before Mr R attacked his wife the accepted legal position had been that upon marriage the wife consented to sex with her husband. Between 1736 and 1949 the wife could not withdraw her consent while the marriage subsisted, so no didn’t mean no – no meant nothing as a wife had no right to say it! In 1949, the courts accepted that a court could make an order withdrawing the wife’s consent but it wasn’t until 1991 that a court ruled a wife had the right to say no to her husband.

The case that overturned that centuries old law: Regina v R [1991] 3 WLR 767.

For what its worth, my opinion is that legally speaking this notion that a husband was immune from a charge of raping his wife was always utter nonsense. I’m not talking morally, I’m talking legally – the only reason this rule existed was because not enough people did the most basic legal analysis and actually looked for some authority for this principle.

In ye olden days, a marriage was not a partnership of equals who joined together to forge a life for each other. Marriage may well have been contracted through love but I get the distinct feeling that in a lot of cases, particularly among the wealthy, marriage was all about marking a good match (whether that was for the couple or their families) and that hopefully love would follow. A woman marrying in the 1700s did not join her husband in partnership; her entire legal identity disappeared as it was subsumed into that of her husband. Thus, a married woman could not contract her own behalf nor could she own property. So, any property she owned at the start of the marriage became her husbands, she might own it legally but only the husband could deal with it. Any inheritance she received during the marriage became her husband’s property not her own. Any income she earned belonged to her husband. When you view marriage not as a partnership between two individuals but as a union literally fusing the legal identity of the woman into that of the man’s you start to see how the notion that a wife has no right to refuse her husband’s sexual whims arose.

The legal authority (and I use the word “authority” very loosely in this context) that a husband had an absolute right to have sex with her wife comes from a comment in a legal text book published in 1736 called the History of the Pleas of the Crown when Sir Matthew Hale wrote:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”

Matthew Hale had been Chief Justice for five years but he also died in 1676, 60 years before the History of the Pleas of the Crown was published. I am writing this in 2017 – 60 years ago was 1957, not only was my dad only 15 years old but more importantly the law since then has changed beyond recognition. Sir Matthew did not think to cite any authority for his claim so while it may have been perfectly true when he wrote it sometime before 1676 it is entirely possible that the law had changed in the 60+ years between writing and publication. It also must be said that without any authority for his claim it is one that should always have been treated with extreme scepticism, especially when one notes that other legal textbooks exist from the time (e.g. Coke, Glanvill, Bracton and Dalton) and they do not mention the marital rape exception.

We jump forward now 152 years to join the Crown Cases Reserved court, a long since defunct Victorian appellate court, whose 13 judges are deciding the case of R v Clarence (1888) 22 QBD 23. Sir Matthew’s assertion did meet some scepticism from two of the judges, e.g. when Field, J. said:

“The authority of Hale C.J. on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, in the husband imposed it by violence, he might be held guilty of a crime”

Wills, J. also said that he was unwilling to accept that a husband cannot be guilty of raping his wife and noted that it is a proposition, “… for which there seems to me to be no sufficient authority.”

Hawkins, J. seemed to take the view that a wife cannot withdraw her consent unless it would be dangerous to her health:

“Rape consists in a man having sexual intercourse with a woman without her consent, and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful; but there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion endangering health and causing harm, which is unlawful. It may be said that assuming a man to be diseased, still as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, and, therefore, cannot be criminal. My reply to this argument is that if a person having a privilege of which he may avail himself or not at his will and pleasure, cannot exercise it without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of his unlawful conduct.”

These comments had no real bearing in law – although arguably more than Sir Matthew’s assertion – because they were merely obiter dicta and dissenting judgments. Clarence was a case in which the husband had consensual sex with his wife and infected her with gonorrhoea. There was a question whether the wife would have consented to sex had she known of her husband’s infection but that was held to be irrelevant because she had in fact consented. It should be noted that in Clarence the husband was charged not with rape but with an assault and was acquitted on appeal because his wife had consented and so no assault or battery had occurred, a slightly different position to an allegation of rape, particularly in the 1800s.

I mentioned earlier that in 1949 it was decided that a court could make an order bringing the wife’s implied consent to an end, that was a case called R v Clarke [1949] 2 ALL ER 448. In Clarke, a magistrates’ court made a separation order on the 2nd March 1949. On the 12th March 1949, the husband had sex with the wife. He was subsequently charged with rape and assault occasioning ABH. The defence sought to stay the rape allegation on the basis it was an offence not known to law citing Sir Matthew Hale’s book as proof of that. Mr Justice Byrne sitting at the Leeds Assizes agreed that Sir Matthew’s opinion of the law was correct, albeit once again his opinion was a bald assertion backed up by no authority whatsoever; however, Byrne, J. held that although the marriage still existed at the time of the allegation the wife’s implied consent had been rescinded by the magistrates on the wife’s behalf when they made the separation order. On the basis, the defendant was arraigned, entered a not guilty plea to both counts and was acquitted by the jury following a trial.

In R v Miller [1954] 2 W.L.R. 138, Mrs Miller had petitioned for divorce when her husband had sex with her against her will. The facts are long and complicated involving adultery by the wife that resulted in her giving birth to a child and allegations of adultery by the husband that were denied, all in all it sounds like a very messy case. Whatever the truth of the goings on, Lynskey, J. had little sympathy for a wife refusing her husband sex even after she had left him and petitioned for divorce. He appeared to take the view that a wife could not withdraw consent herself but must ask permission of a court:

“Can I say that because the wife has left her husband and has brought a petition for divorce that one must infer a revocation of the wife’s implied consent? I have considered the matter very carefully, and I cannot see that, because a petition for divorce has been presented, that has any effect in law upon the existing marriage. It is not until a decree nisi, or possibly a decree absolute, has been pronounced that the marriage and its obligations can be said to have been terminated.”

Interestingly Miller considered and followed R v Jackson [1891] 1 Q.B. 671 in which a court had ordered a wife to return to the marital home. She refused and was taken there by force then kept locked in the house. The husband forced himself up her. In Jackson, it was held that while the husband had the right to require his wife to have sex with him he was not entitled to use force to achieve that aim and he was thus guilty of an assault upon her. I cannot be alone in thinking that a situation where a husband can be guilty of a lesser assault on his wife but not of a greater assault, i.e. rape, is a pretty bizarre situation that leaves one seriously questioning what thought was put into these decisions.

In the 1970s the Court of Appeal heard the case of R v Steel (1976) 65 Cr App R 22 and held that where husband and wife are living apart and the man undertakes not to molest his wife then the court must ask itself whether there is an agreement between the husband and wife that the wife’s consent to sexual intercourse no longer exists. Now you don’t have to be a lawyer to see just how silly this position is: the question is whether the wife has withdrawn her implied consent to sex but the test is whether the husband, who is accused or rape, has agreed to this.

So, we have a position where the law is that a wife consents at marriage to sex with her husband and she cannot revoke that consent unless it’s dangerous to her health… or a court says she can withdraw her consent…. or her husband agrees to the withdrawal of consent. But, a husband who uses force to exercise his right to sex does commit an offence albeit one of assault not rape. Even if you ignore the fact that Sir Matthew Hale cited absolutely no legal authority for his original proposition the fact that courts are having to create so many exceptions to this rule should tell you that the original rule needs some more thought.

This was a situation that the Scottish courts found too ridiculous to bear and in Stallard v HM Advocate [1989] SLT 469 held that even if the notion that a wife cannot refuse sex with her husband was sensible in the 18th or 19th century that time had long since past and that in the 20th century there was no plausible justification for saying that where a wife does not consent to sex with her husband she should be taken to have consented because she is married.

In July 1990, Simon Brown, J. ruled in R v C [1991] 1 Al ER 755 that the Scottish law position was the only defensible stance and stated that the law in England must be that there is no exception for husbands from the law of rape. That was a ruling given in the Crown Court and thus was not binding on other courts and appeared not to have been appealed.

It was against this historical background that R v R came to be heard first in the Court of Appeal and then by the House of Lords. By this time, somebody had decided to get some Queen’s Counsel involved so things took a distinctly intellectual term.

The Sexual Offences (Amendment) Act 1976 codified the offence of rape describing it as a man having “unlawful sexual intercourse with a woman who at the time does not consent to it”. It was that use of the word “unlawful” that caused problems. For some it meant “illicit” or outside the bounds of marriage. If that is correct then Parliament must have intended to preserve the husband’s marital rape exemption. Taken literally this would overrule all of the exceptions created by the courts over the years. If that is correct then why did Parliament not spell it out (did they even think about it I wonder). Alternatively, “unlawful” could mean that Sir Matthew Hale’s exemption from prosecution remains good law but so do all the exceptions.

Their Lordships identified a third pathway, which ignores the whole question of what does “unlawful” mean and simply attacks the legitimacy of the marital rape exception, in the words of the court, the third solution is to say that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The problem with this is that where you have such a longstanding rule it should be for Parliament to abolition it or so goes the conservative lawyers thinking. For what it is worth, I do not subscribe to this view. Merely because a rule is old does not mean it is correct either at the time it was promulgated or today – we tend to think of ancient wisdom as somehow worthy of respect because of its age but just because an idea is tenacious does not mean it is correct. Where a law is entirely judge made I do not see that a later judge can refuse to right an obvious wrong simply because that law is old.

The House of Lords took the view that it was inconceivable that Parliament intended to abolish the exceptions and that if it had intended to do so then it would have said so expressly in the Act. Considering whether Parliament intended to preserve both the marital rape exemption and the exceptions to it the House of Lords thought that it would be necessary to construe “unlawful” as meaning “outside of marriage or within marriage in a situation covered by one of the exceptions to the marital exemption”. Their Lordships took the view that this would be a unique definition of “unlawful” for rape cases and that had this been Parliament’s intention it would have said so – the court seems to have some doubts as to whether the draftsman ever considered the marital rape exceptions.

The conclusion of the House was that [t]here are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment… I am therefore of the opinion that section 1(1) of the Act of 1976 presents no obstacle to this House declaring that in modern times the supposed marital exemption in rape forms no part of the law of England.”

With that flourish, the House of Lords finally brought to an end the longstanding legal myth that husbands had the absolute right to rape their wives at will.

As I’ve said several times in this post, Sir Matthew Hale cited no authority for his marital rape exemption and almost no judges questioned whether his statement was good law or not despite the lack of authority and the fact that no other textbook or case before him mentions this exemption. I cannot help the feeling that had judges been more willing to put some serious critical thought into whether this assertion was actually good law or not we would not have had a situation where in the latter part of the 20th century a man could lawfully force a woman to have sex with him and face absolutely no consequences as a result of that act.

In the beginning

In the beginning God created the heavens and the Earth… Then God said, “Let us make mankind in our image”… So God created mankind in his own image and mankind did quickly create problems for themselves that needed solving by others. Unfortunately, God wasn’t a great problem solver it seems to mankind was forced to solve his own problems and so created systems of laws to help. This blog is the story of those laws.

I’m no historian and am even less of a theologian so that first paragraph may not be entirely historically accurate. In this blog (the whole thing not just this post) I will explore some of histories more important legal developments, I’ll discuss some of the more interesting cases to come before the courts and hopefully by the end of it I’ll have worked out for myself what this law stuff is all about.

As a schoolboy I was taught that when writing a story you should start at the beginning, have a middle then an end. I note Mary Beard seems to disagree with this notion in her excellent book SPQR but I don’t pretend to be anywhere near as clever has her so I’m going to stick to the school’s formula for this first blog – I’ll jump though history later – and write about the beginning of it all.

Where did law start? I don’t know. Sorry to disappoint but nor does anybody else really. China looks like a pretty good bet since they have the oldest operating legal system in the world. Early Chinese law sounds like it would have had some pretty enjoyable cases for an advocate to argue – deference to things facing south was a thing and judgments could be founded, on what I presume was a purposive approach to statutory interpretation, by reading the markings on a tortoises shell. Still they did find the time to ban parents marrying their kids, which is good.

The Chinese system seems to have been what we would today call a deeply patriarchal system whereby the eldest male in the family was the boss and ancient Chinese laws prohibited back-chatting your elders; punishments could include death. The older I get the more I approve of this sort of law. We could at the very least introduce it for bus passengers.

While China may have the oldest legal system still in use I believe I’m correct in saying that the earliest Chinese legal code that survives date from around 1027 BC at the very earliest. In legal terms even the ancient Chinese law is a new kid on the block.

The Code of Urukagina looked to combat corruption doing so by giving legal rights to poor and vulnerable individuals who may otherwise have been abused or neglected by the elite or the state itself.  It dates from around 2380 BC, a cool 1,353 years before the earliest known Chinese legal code.

King Urukagina’s code required rich people to pay poor people in silver when buying goods from them and prohibited the rich from requiring or forcing the poor to sell against their wishes. Essentially, Urukagina established property rights and, presumably, allowed the poor and widowed women he sought to protect to enforce those rights against the rich. His code also exempted widowed women and orphans from taxes. He also sought to reduce theft and murder thus enshrining in law the earliest recorded criminal laws.

Although Urukagina took some steps to protect women he wasn’t exactly a modern feminist. It seems polygamy was acceptable, as was polyandry at the start of Urukagina’s reign but he outlawed women taking multiple husbands and ordered that any woman doing so should be stoned to death. A woman committing adultery should also be stoned to death, using stones inscribed with her crime.

code_of_ur_nammu
A stone tablet bearing the Code of Ur-Nammu

While Urukagina’s Code may be the oldest we know about, we do not have the text of the code only writings that make reference to it. Ur-Nammu’s Code is the old legal code that has survived, at least in part, to this day from its creation sometime around 2112 BC. Archaeologists have been able to translate around 40 of the code’s 57 laws from various stone tablets.

Ur-Nammu’s Code created criminal offences and provided punishments for those committing the offences. Later legal systems could be very brutal – the Babylonians insisting on an eye for an eye and our own Victorian legal system that executed children and transported people for relatively trivial offences are good examples. In contrast, Ur-Nammu’s Code prescribes a system of financial penalties for offences, including what we might now call assault occasioning actual or grievous bodily harm. Death was still a penalty for serious offences such as rape, murder and robbery as well as crimes we would no longer call crimes, such as adultery.

The code of Ur-Nammu was enforced by a legal system comprising specialised judges who would hear evidence given under oath, give reasoned judgments and make enforceable orders. Importantly, the punishment ordered by a judge should be proportionate to the crime under Ur-Nammu’s Code. This is something that continues under modern English law where we have concepts such as totality that limits the total sentence that can be imposed for multiple crimes as well as bandings for fines so a rich man pays more than a poor one so that the punishment fits the crime.

Around 1850 BC, some 820 years before the earliest known Chinese laws a court was hearing the trial of three men and a woman all accused of murdering the woman’s husband. There were nine witnesses for the prosecution and two for the woman who both gave evidence that the victim had been violent towards his wife and that she had not taken part in the murder, although it seems that she was aware of it after the fact and covered up the death. Today we might say that the wife was acting under some sort of duress in covering up the murder once she discovered or, or even diminished responsibility if she had a hand in planning the killing. Whatever the ancient term, her defence was successful and the court acquitted her. Her three co-defendants were not so lucky; all three were executed in front of the victim’s house.

About 1797 BC, a man called Ankh-ren, or possibly  Sekhenren, died, probably in the town of Kahun, which is in Egypt. We know this because more than three-and-a-half thousand years later in 1889 Flinders Petrie found his will along with that of another man named Uah. Ankh-ren left all his property to his brother, Uah.

Uah’s will passed all the property he had been given in life by his brother to Uah’s wife, Teta. She was banned from pulling down the buildings but was given free reign to pass them on to her children however she saw fit. In modern English law, we would probably say that Uah had created a trust and appointed Teta as trustee of it with a life interest for her and the children as the ultimate beneficiaries. Today this would be a complex legal instrument, which may well suggest that humans developed relatively complex law a very long time ago. Indeed so modern in form was Uah’s will that the London Evening Standard suggested that it could even be granted probate by a court in 1889.

ankh-ren-will
An except from Ankh-ren’s will

While I may one day choose to write a whole post about Draco, I cannot end this post on the beginnings of law without mentioning Draco’s Law, written down in 621 BC. Devised by a Greek citizen the law was so severe that the orator Demades remarked that Draco had written his laws in blood not ink. The penalty for almost everything was death. When asked why, Draco is reported to have replied that “the smallest [offence] deserves death and there is no greater punishment I can find for the greater crimes”. Given this, I am left wondering why Draco went to the effort of differentiating between intentional and unintentional homicide.

So severe were Draco’s laws that today, more than two and a half thousand years later we still use his name to describe a particularly harsh law or penalty, which we say are draconian. In an ironic twist Draco was loved for his draconian law so much so that he was showered by the citizens of Athens with their hats and cloaks, which I am told was a customary way of showing respect. They showed him so much respect that he is said to have been smothered to death by the hats and cloaks they threw!

I am going to end there. I don’t pretend that this is a full historical account of all the important ancient legal codes and decisions because it isn’t. I haven’t touched on the Babylonian laws, the Gortyn Code, Roman law or even the ten commandments, all of which deserve a mention in the history of law. Maybe I’ll get to them one day but for now this brief flypast of the first 1,759 years of ancient legal codes, documents and cases will have to suffice.