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  EWCA Crim 441 when the court had to decide whether silent telephone calls that caused psychological harm could amount to an assault.