[This is the second of the two lessons from law school I mentioned in my last post. The first was instructive. This one’s illustrative. Anyone following the circus surrounding the Judge Kavanaugh confirmation hearings in the United States Senate will be able to find connections with the seven-hundred-year-old foundational case on assault recounted below.]
THE ILLUSTRATIVE CASE OF I. de S. and WIFE
(At the Assizes, 1348)
In France, where the legal system is based on the Napoleonic Code, law students spend five years learning the nation’s codified statutes. By contrast, in the United States, law schools generally follow a three-year instructional method developed at Harvard Law School during the mid-nineteenth century which is based on the study of decisional law — that is, the study of how individual cases in the major branches of law were decided and why. These decisions are collected in casebooks, and assigned — usually three at a time in each course — to be read, outlined and assimilated sufficiently to enable the student to explain the court’s reasoning if called on.
Not surprisingly, it tends to be the earliest cases we read in the first weeks of law school, when all this was new, which linger long in the mind even after the student becomes a real lawyer and confronts contemporary problems which may have little, of anything, to do with those long-ago decisions. I will probably remember into the grave an early nineteenth-century property case, Pierson v. Post — otherwise known as “Who Owns the Fox?” It concerned a man (Mr. Post) who was chasing a fox, apparently for some time, without having come close enough to injure or capture it. Then another fellow (Mr. Pierson) spotted the fox, and did wound and capture it. In the end, who was entitled to the fox, or what was left of it? Hint: effort is not enough.
Another first-year case recently surfaced in my mind around the time the #metoo hashtag was born. It has refused to go away ever since — especially after Dr. Christine Blasey Ford accused Judge Brett Kavanauugh of sexual assault. It’s the fourteenth-century case of I. de S. et ux. This was the very first tort case reported in Anglo-American case law, and the first case I read in law school. I think “I.” stood for “Isaac.” I’m not sure where “S.” was. Suffolk? Smithfield? Sheffield? “Et ux” means “and wife” in Latin.
Now we come to a glossary of terms from lawyer-speak. Lawyers have an English language all their own; after you learn it, you tend to forget that non-lawyers may not be sure what you mean. I just mentioned “Anglo-American law.” American law derives from English law. No big surprise there. We were English colonies before we went off on our own. English law was all there was. Moreover, the law is thrifty; it keeps everything that gets decided, and builds on it. Even after a revolution. It’s all “stare decisis” — meaning “it stands decided.” So early English common law decisions crossed the Atlantic with early settlers and became the antecedents of our own common law.
I referenced “case law.” It’s also known as bench-made law. Or common law. (In contrast to statutory law enacted by legislatures. Although there’s also bench-made law construing statutory law, including of course the Constitution.) It’s what judges decide, usually on appeal, after all the factual evidence is in, and after they’ve considered all the relevant case law that came before.
I called “I. de S. et ux” a “tort case.” A “tort” in the law is not a misspelled Austrian pastry. It’s a branch of civil law having to do with various kinds of intentional or negligent harm people inflict on each other — excluding breach of contract, which is part of contract law. It has to be harm for which the court can provide relief, usually in the form of financial compensation.
“Civil law?” Not criminal law. No jail time. No executions. It can get expensive, though.
Ouch. But how can I tell you about I. and his wife, who both lived in S. in the middle of the fourteenth century, without the vocabulary? Anyhow, that’s all out of the way now. Onward!
As I recall — and it’s been a while so some of the details are fuzzy — I. was a tavern keeper. After he had shut up shop for the night, W. — also of Suffolk, or Smithfield, or Sheffield — came over to buy some wine and found the tavern door bolted. He had a hatchet with him, and swung it at the door, cursing and “caterwauling” near the window. I.’s wife stuck her head out and told him to stop the noise, whereupon he swung at her with the hatchet too. Although he didn’t hit her, she was “afeared” that he would. I. — her husband — went to the local assizes, which functioned as a court of law in the counties, and brought suit against W.
The judges decided there had been an assault, even though W.’s hatchet hadn’t actually touched or cut I.’s wife. It was the first actionable tort, and its facts provided us, the students, with the legal definition of assault. It’s any intentional act or conduct which creates in another person a reasonable apprehension of imminent bodily harm. Stare decisis. Significant words that will be on the exam: (1) intentional; (2) reasonable; (3) imminent; and (4) bodily. But never mind that.
What was really significant — to me and all the other women in the class — which in 1983 was 50% of us — was I.’s wife. Because she was so in-significant. She had no name. She had no right to bring her own complaint. I. had to do it instead. In the eyes of the law — which were the eyes of the contemporaneous fourteenth-century world — she was not a person, and therefore could not be injured. She was I.’s appendage, his property, his chattel. (Not so different from the fox in Pierson v. Post five hundred years later, although the legal issue was different there.) Frightening her — by causing her to experience a reasonable apprehension of imminent bodily harm — was an injury to him, for which he was entitled to compensation. Perhaps he loved her, but the law wouldn’t care about that. Perhaps he went to court because W.’s assault had made her too “afeared” to work in the tavern. We will never know. In any event, we will probably say it sounds nuts, and thank goodness we’re not living then.
Not so fast. As recently as the mid-twentieth century, when I was in college, a wife in some states still couldn’t sue her husband, except — under certain limited circumstances — for divorce. If the brakes on his parked car failed and the car rolled down the driveway and hit her as she was coming in from the street with the groceries — she couldn’t file a claim against his insurance company. Why not? Because of the time-honored legal doctrine of marital harmony, with which the courts, and the insurance company, chose not to interfere. Man and wife were one flesh, went the reasoning. So how could a man pay himself through his insurer for hurting his own flesh?
The Marital Harmony Doctrine may have finally faded away. And now we have decades of state and federal legislation prohibiting sexual discrimination and harassment in the workplace. But much of the country sat glued to their televisions or other devices a few weeks ago as the Kavanaugh confirmation hearings touched on “boys will be boys” conduct in high school and the hallowed halls of Yale — conduct demonstrating that when some young men get drunk and their inhibitions dissolve, at bottom they still believe women are not quite people but prey — prey for touching, and grinding against, and sexual manhandling, and also fair game for sexual conquest by any means. A woman is still — to too many men, including those no longer young — not quite an autonomous person but flesh to be grabbed or bargained for when the woman appears not to belong to — that is, be the property of — a husband or father or other man.
This did not of course begin in the 14th century with I. de S., his wife, and the assizes court that awarded him compensation for her having been made afraid that a would-be customer was about to hurt her. In reading a biography of Cleopatra, I learned that the Romans of the pre-Christian era were surprised to discover Egyptians of that time treated women as the equals of men, permitting them to own property and run businesses by themselves without oversight or supervision. The Romans themselves were required to raise only the first-born of their daughters; they could dispose of any subsequent others at birth if they so wished.
But I digress. To sum up: long after I shall have forgotten just about everything else I learned about the law in law school, I will probably go on remembering I.’s nameless wife. Not for the definition of assault with which she provided us, but for how her husband’s case illustrates millennia of male attitudes towards women. Unfortunately, I very much doubt Mrs. I. de S. will become a mere historical curiosity in my lifetime.