Abstract
In 1265, William Pilche was exonerated for the 1265 killing of Augustine le Fevere on the grounds that he was “a natural fool” while his victim was a “terrible monster.” Legal treatises referred to monstrosity and disability in the same passages, considering both in response to broader questions about who had the ability to exercise the rights associated with legal adulthood. Jurists conferred similar restrictions upon monsters and people with disabilities, so it would be easy to imagine that they viewed the difference between these categories as one of degree rather than kind and used the term “monster” to denote people born with the most profound mental and physical impairments. However, a survey of English legal treatises, as well as the records of a very small number of contemporaneous court cases involving “monsters,” reveals that medieval law did not collapse the categories of disability and monstrosity. Instead, jurists carefully clarified the ways that monstrosity differed from disability. Monsters were “not born in the likeness of a man,” while impairment or deformity did not render someone a monster if they still appeared to be “effectively human.”
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- 1.
Great Britain and the Public Records Office, Calendar of Patent Rolls Preserved in the Public Records Office, Henry III, vol. 5 (London: HMSO, 1891–1901), 407. The text cited above refers to William as an idiot, but he is referred to as fatuus in the original record, which is held in the National Archives of the UK (TNA), C 66/83, membrane 22. I also discuss William’s case in a previous publication, Eliza Buhrer, “‘But what is to be said of a fool?’ Intellectual Disability in Medieval Thought and Culture,” in Mental Health, Spirituality, and Religion in Middle Ages and Early Modern Age, Fundamentals of Medieval and Early Modern Culture 15, ed. Albrecht Classen and Marilyn Sandidge (Berlin/Boston: Walter de Gruyter, 2014), 314–344.
- 2.
Henry de Bracton, On the Laws and Customs of England, ed. George E Woodbine, trans. Samuel E. Thorne, 4 vols. (Cambridge: Harvard University Press, 1968), 2: 424, http://bracton.law.harvard.edu/Unframed/English/v2/424.htm
- 3.
Bracton, Laws and Customs, 4:308, http://bracton.law.harvard.edu/Unframed/English/v4/308.htm
- 4.
I am using deformity here, as medieval legal texts do, to refer to physical anomaly caused by either birth defects, injury, or illnesses such as leprosy. I use disability here to refer to the conditions that barred people from exercising certain rights in Medieval English law—deafness, mutism, blindness, leprosy and other incurable illnesses, insanity, and cognitive impairment. If we follow the social model of disability, these conditions were disabling because the law limited the rights of people afflicted with them and, thus, limited their participation in society.
- 5.
Henry de Bracton, On the Laws and Customs of England, ed. George E Woodbine, trans. Samuel E Thorne, 4 vols. (Cambridge: Harvard University Press, 1968). For background on the manuscript of Bracton, Bracton the person, and the relationship of both to Roman law, see Thomas McSweeney, “English Judges and Roman Jurists: The Civilian Learning Behind England’s First Case Law,” Temple Law Review 84 (2012): 827–862. The classical work on Bracton and Roman law is Karl Guterbock, Bracton and his Relation to the Roman Law: A Contribution to the History of the Roman Law in the Middle Ages, trans. Brinton Coxe (Buffalo: Fred B. Rothman & Co., 1979).
- 6.
Discussions of the rights of people with disabilities can be found in Bracton, vol. 2, 24, vol. 2, 52, vol. 2, 134–135, vol. 2, 286, vol. 3, 28, vol. 3, 300, vol. 4, 177–8, vol. 4, 292, vol. 4, 308–309, vol. 4, 339, vol. 4, 351, vol. 4, 356. For a discussion of these developments in regard to people with mental disabilities, see Irina Metzler, “Non-consenting Adults: Laws and Intellectual Disability,” in Fools and Idiots? Intellectual Disability in the Middle Ages (Manchester, UK: Manchester University Press, 2016), 140–184.
- 7.
A.N. Sharpe, “England’s Legal Monsters,” Law, Culture, and the Humanities 5 (2009):100–130, here 106. Sharpe builds on this work in A.N. Sharpe, “An English Legal History of Monsters,” in Foucault’s Monsters and the Challenge of Law (Abingdon: Routledge, 2010).
- 8.
Sharpe, “England’s Legal Monsters,” 109–110.
- 9.
Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 2003), 64. In Stein’s reading, the authors of Bracton used Roman law to provide the theoretical structure necessary for the laws of the king’s court to become a coherent legal system. Also see, McSweeney, “English Judges and Roman Jurists,” 842–855.
- 10.
For a discussion of disability in medieval law that touches on medieval uses of Roman sources, see Irina Metzler, “Reflections on Disability in Medieval Legal Texts: Exclusion—Protection—Compensation,” in Disability and Medieval Law: History, Literature, Society, ed. Cory James Rushton (Newcastle upon Tyne: Cambridge Scholars Publishing, 2013), 19–54. For a discussion of disability in medieval canon law, see Brandon Parlopiano, “Propter deformitatem: Towards a Concept of Disability in Medieval Canon Law,” The Canadian Journal of Disability Studies 4 (2015):72–102. For more on Bracton’s relation to Azo, see Select Passages from the Works of Bracton and Azo, ed. F.W. Maitland (London: Selden Society 8, 1894).
- 11.
Bracton, Laws and Customs, 2:31, http://bracton.law.harvard.edu/Unframed/English/v2/31.htm
- 12.
Bracton, Laws and Customs, 2:31, http://bracton.law.harvard.edu/Unframed/English/v2/31.htm
- 13.
Bracton, Laws and Customs, 4:361–2, http://bracton.law.harvard.edu/Unframed/English/v4/361.htm
- 14.
Bracton, Laws and Customs, 4:227, http://bracton.law.harvard.edu/Unframed/English/v4/227.htm, and Bracton, Laws and Customs, 2:203–204, http://bracton.law.harvard.edu/Unframed/English/v2/203.htm. Further discussions of monsters can be found in Bracton, Laws and Customs, 3:151, http://bracton.law.harvard.edu/Unframed/English/v3/151.htm and Laws and Custom, 4:198, http://bracton.law.harvard.edu/Unframed/English/v4/198.htm
- 15.
Isidore of Seville, The Etymologies of Isidore of Seville, trans. Stephen A. Barney, W.J. Lewis, J.A. Beach and Oliver Berghof (Cambridge: Cambridge University Press, 2006), 244. Contemporary writing suggests that Isidore’s understanding of monstrosity had taken root in England before legal authors started to consider the questions raised by monsters. For instance, in 1270, the Chronicle of the Sheriffs and Mayors of London described how “a sheep brought forth a monstrous animal, having two bodies like those of a lamb, and only one head; to which head the bodies adhered by separate necks.” While the chronicle noted that no one knew for certain whether “this prodigy was significant of misfortune to anyone,” the owner of the tenement where the sheep was born became paralyzed and lost the ability to speak in the same year. Chronicles of the Mayors and Sheriffs of London 1188–1274, ed. H.T. Riley (London: Trubner and Co., 1863), 131–147, British History Onlinehttp://www.british-history.ac.uk/no-series/london-mayors-sheriffs/1188-1274/pp131-147. Henry de Bracton was familiar with Isidore, as he references his description of law in the Etymologies in volume I of De Legibus, so his rejection of this reading was likely intentional.
- 16.
Sharpe also makes and elaborates upon this observation in “England’s Legal Monsters,” 101.
- 17.
Further hinting at this, Bracton refers to the possibility that a child “declines to a monster” when the mother has given birth elsewhere in De Legibus. Bracton, Laws and Customs, 4:361, http://bracton.law.harvard.edu/Unframed/English/v4/361.htm
- 18.
For more on this see, J. Allan Mitchell, “Being Born,” in Becoming Human: The Matter of the Medieval Child (Minnesota: University of Minnesota Press, 2014), 1–57.
- 19.
Mitchell, Becoming Human, 18–19.
- 20.
In addition to Mitchell’s excellent work, a rich discussion of this and related topics can be found in Alan W. Bates, Emblematic Monsters: Unnatural Conceptions and Deformed Births in Early Modern Europe (Amsterdam and New York: Clio Medica 77, Wellcome Series in the History of Medicine, 2005), 113–139.
- 21.
John Block Friedman, “The Human Status of the Monstrous Races,” in The Monstrous Races in Medieval Art and Thought (Syracuse: Syracuse University Press, 2000), 178–197.
- 22.
Bracton, Laws and Customs, 2:203–4, http://bracton.law.harvard.edu/Unframed/English/v2/203.htm
- 23.
Bracton, Laws and Customs, 4:361, http://bracton.law.harvard.edu/Unframed/English/v4/361.htm
- 24.
As Sharpe discusses in “An English Legal History of Monsters,” this distinction between natural physical difference and that which is beyond the nature also informed how Bracton and subsequent jurists differentiated between intersex individuals and monsters. In a chapter of the treatise on the law of persons, Bracton asserts that “mankind can be classified in another way: male, female, or hermaphrodite,” recognizing the birth of an intersex individual as a natural occurrence that should not disadvantage them before the law (Bracton also held that a “hermaphrodite is classed with male or female given according to the predominance of their sexual organs,” which suggests that some intersex individuals would have enjoyed more rights than people who were regarded as unambiguously female). Bracton, Laws and Customs, 2:31, http://bracton.law.harvard.edu/Unframed/English/v2/31.htm
- 25.
Isidore, Etymologies, 244.
- 26.
Metzler, “Reflections on Disability in Medieval Legal Texts.”
- 27.
Unmarried women under the age of 25 and boys under the age of 14 also did not enjoy most of these rights. In contrast to monsters, however, both could eventually obtain at least some of them.
- 28.
See, for instance, Bracton, Laws and Customs, 2:24, Addicio, http://bracton.law.harvard.edu/Unframed/English/v2/24.htm
- 29.
Bracton, Laws and Customs, 4:361, http://bracton.law.harvard.edu/Unframed/English/v4/361.htm
- 30.
This is interesting in light of St. Augustine’s assertion in Book XVI of City of God that “either the written accounts of certain [monstrous] races are completely unfounded or, if such races do exist, they are not human, or if they are human, they are descended from Adam.” Karl Steele unpacks this passage in “Centaurs, Satyrs, and Cynocephali: Medieval Scholarly Teratology and the Question of the Human,” in The Ashgate Research Companion to Monsters and the Monstrous, ed. Asa Simon Mittman and Peter J. Dendle (Burlington, VT: Ashgate, 2012), 257–74.
- 31.
Further illustrating this, Bracton held that those with “incurable disease and bodily deformity, as where he is a leper and so deformed that the sight of him cannot be endured, so that he is put outside the community of mankind,” could not inherit property, but they could keep inheritances they already held. In this sense, lepers bore a greater resemblance to monsters than those with other disabilities, since like monsters and excommunicants, lepers were denied “the communion of mankind,” as well as the right to inherit—the primary right distinguishing humans from monsters. Nevertheless, the fact that lepers could keep inheritances they already held, thus preserving them for their heirs, suggests that not even leprosy was able to fully transform a human into a monster. Bracton, Laws and Customs, 4:309, http://bracton.law.harvard.edu/Unframed/English/v4/309.htm, and 4:292, http://bracton.law.harvard.edu/Unframed/English/v4/292.htm
- 32.
Fleta, vol. II, Prologue, Books 1 and 2, ed. H.G. Richardson and G.O. Sayles (London: Selden Society 72, 1953), 14–15. Fleta, vol. IV, Books 5 and 6, ed. G.O. Sayles (London: Selden Society 99, 1983), 99.
- 33.
Francis Morgan Nichols, Britton; the French Text Carefully Revised with an English Translation, Introduction and Notes (Oxford: Oxford University Press, 1865).
- 34.
Andrew Horne, The Mirror of Justices, ed. William Joseph Whittaker (London: Selden Society 7, 1893), 139. This is a remarkable claim, when we consider that some Christian theologians, such as Augustine, held that even monstrous births would be given human bodies upon resurrection, a claim that blurs the boundaries between the human and the monstrous (Augustine makes this claim in Chapter XXII, Section 87 of the Enchiridion). By suggesting that killing a monster is not homicide, or even punishable by the law, The Mirror of Justices seems to reject this view. Later jurists also seem to have inferred that monsters’ rightlessness deprived them of protection from violence. For instance, upon reiterating Bracton’s assertion that monsters cannot be heirs, the eighteenth-century legal writer William Blackstone noted that “This is a very antient rule in the law of England; and its reason is too obvious, and too shocking to bear a minute discussion,” alluding to what we can only assume is the possibility of infanticide. William Blackstone, Commentaries on the Laws of England, Book II (Buffalo, NY: William S. Hein & Co, 1992), 246–5.
- 35.
Fleta, vol. II, 14–15.
- 36.
Francis Morgan Nichols, Britton, 19–20.
- 37.
Ibid., 349. I use the term “idiot” here (from the Latin idiota), because this had a specific meaning within medieval law that does not perfectly align with modern concepts of cognitive impairment.
- 38.
J.H. Thomas, Systematic Arrangement of Lord Coke’s First Institute of the Laws of England (Philadelphia: Alexander Towar, 1836), 155.
- 39.
William Blackstone, Commentaries on the Laws of England, Book II (Buffalo, NY: William S. Hein & Co, 1992), 246–5. Matthew Bacon, New Abridgement of the Law (London: A. Strahan, 1983), 153.
- 40.
Select Cases in the Court of the King’s Bench under Edward III, vol. VI, ed. G.O. Sayles (London: Selden Society 82, 1965), 163. This is one of several trials involving necromancy held during the reign of Edward III.
- 41.
William of Malmesbury, William of Malmesbury’s Chronicle of the Kings of England, from the Earliest Period to the Reign of King Stephen, ed. and trans. J.A. Giles (London: Henry G. Bohn, 1847), 174. This account occurs in Book II, Chapter 10.
- 42.
Ibid., 181.
- 43.
Select Cases of Trespass in the King’s Court, 1307–1399, vol. I, ed. Morris S. Arnold (London: Selden Society 100, 1984), 50.
- 44.
Just as the monstrous lump of flesh resulting from the union of a Christian princess and a Muslim sultan in the King of Tars only takes a human form when it is baptized, we might ask whether the court would have viewed the head differently had it come from a Christian rather than a Saracen. At the very least, it is hard to imagine that John would have been allowed to leave court without penalty if he had been carrying the decapitated head of a coreligionist.
- 45.
Calendar of Close Rolls, Edward II, vol. 3, 1318–1323, ed. H C Maxwell Lyte (London: HMSO, 1895), 67–73. British History Online, http://www.british-history.ac.uk/cal-close-rolls/edw2/vol3/pp67-73
- 46.
For more on inquisitions involving stillbirths see, Sarah M. Butler, “Abortion Medieval Style? Assaults on Pregnant Women in Later Medieval England,” Womens Studies 40 (2011): 778–799.
- 47.
Andrew Horne, The Mirror of Justices, ed. William Joseph Whittaker (London: Selden Society 7, 1893), 32.
- 48.
That said, these texts should not be read as full accounts of all the customary laws that existed in thirteenth- and fourteenth-century England, but rather of only those laws of which the king approved. See, McSweeney, “English Judges and Roman Jurists,” 838–9. This is particularly true in the way that these texts deal with disability, since many of the laws they describe were deeply informed by jurists’ reading of Roman and canon laws and seem to have had no precedent in English custom. I discuss this in Eliza Buhrer, “But what is to be said of a fool?,” 314–344.
- 49.
Select Cases in the Court of the King’s Bench Under Edward I, vol. I, ed. G.O. Sayles (London: Selden Society 55, 1936), 32–33.
- 50.
Ibid.
- 51.
The questions the justices asked were fairly exhaustive and included, whether the child had been stillborn and another child had been substituted for it? If this was the case, then how and by whom? If a legitimate child had been born, had it been seen, heard to cry, and baptized? If it was baptized, what priest performed the ceremony? Finally, who were the midwives who attended to Margery?
- 52.
The source for Azo’s discussion of monstrosity is Justinian’s Digest, D. 1.5.14. Other discussions of monsters can be found in D.50.16.135 and D.50.16.38.
- 53.
Stein, Roman Law, 60.
- 54.
Selden Society, Azo and Bracton, 60–61.
- 55.
Ibid., 60. The section Azo cites, D. 50.16.135 states that “the parents of a monster should not be censured or prejudiced, as they have done nothing wrong,” a view that is hard to reconcile with the strong associations between monstrosity, “perverse procreation,” and sin that existed during the thirteenth century. Sharpe discusses this and comes to slightly different conclusions than I have here in “England’s Legal Monsters,” 108.
- 56.
Bracton, Laws and Customs, vol. 2, p 31, and vol. 4, p 361.
- 57.
For more on the evolution of law during this period, see Anthony Musson, Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester and New York: Manchester Medieval Studies, Manchester University Press, 2001). For more on the law’s treatment of people with mental disorders during this period, see Wendy J. Turner, Care and Custody of the Mentally Ill, Incompetent, and Disabled in Medieval England (Turnhout: Cursor Mundi 16, Brepols, 2013).
- 58.
Abundant evidence of this shift can be found in the records of the royal courts. For instance, from the middle of the thirteenth century to the end of the fifteenth century, the office of Chancery oversaw hundreds of inquisitions involving people accused of being natural fools, idiota, or non compos mentis, when court records contain no references to natural fools and idiota prior to this period, and few references to people who were described as non compos mentis. When people were found to be mentally incompetent, the Crown took their land into the king’s hand and appointed guardians for them, largely following the rules outlined in Bracton, Fleta, and Britton. Likewise, in a handful of cases, women’s marriages were declared illegitimate after they were accused of being deaf, or people identified as “deaf-mutes” were pardoned after they allegedly committed crimes on the grounds that they were not capable of testifying in court. This shift is also evident if we compare Bracton’s treatment of disability to that of Glanvill, a legal treatise written between 1187 and 1189 that is often viewed as the first book of English common law. While Bracton contains numerous discussions of the legal impediments created by disability, Glanvill says nothing on this subject.
- 59.
Bracton, Laws and Customs 4:308, http://bracton.law.harvard.edu/Unframed/English/v4/308.htm
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Buhrer, E. (2019). “If in Other Respects He Appears to Be Effectively Human”: Defining Monstrosity in Medieval English Law. In: Godden, R.H., Mittman, A.S. (eds) Monstrosity, Disability, and the Posthuman in the Medieval and Early Modern World. The New Middle Ages. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-25458-2_3
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