Monthly Archives: February 2013

Worth a look: Raffles

Worth a look: R.W. Ireland, ‘Criminology, class and cricket: Raffles and real life’. Legal Studies article

Legal Studies has not always been known for its articles on Legal History, but there is a good one in the current issue – Richard Ireland’s consideration of the Raffles stories in their historical context. These stories, once extraordinarily popular, deal with the adventures of a cricket-playing gentleman burglar. I have never been a fan of them (cricket, gentlemanly caddishness – enough said) but they certainly were a striking success, and this article is an original exploration of their relevance to ideas of crime, ‘criminal classes’ and professionalism, past and present.

I am even less of a fan of Foucault than I am of cricket, and it is unfortunate that anyone looking at the history and theories of criminology and penology feels obliged to mention Foucault. Although Ireland does not reject Foucault, it is good to see him gently pointing out that those who have actually looked at prison history are less likely to be enamoured with his work than some social scientists. Give me Maitland any day.

A little [right to] light relief

The Law Commission (England and Wales) is asking for comments on its consultation document on rights to light (negative easements which restrict building in such a way as to block light to a property which enjoys such a right).

The suggested move is towards restriction of such rights – should the proposals be accepted, it will be harder to acquire such rights, and easier to have them declared invalid. Clearly, this is something which property developers would like, and which those wishing to resist development may regard with some wariness. No doubt property law blogs will have much to say about this debate. The Bracton’s Sister angle on things is, of course, less focused on current law, and more interested in other sorts of observation. There are a few things which it seemed worth mentioning …

1. One of the bodies consulted already is the ‘Association of Light Practitioners’ – this, presumably, is a group not open to those of a stouter persuasion.

2. The consultation document continues the strange tendency of lawyers to personalise real property, or make it out to be something other than inert and/or metaphysical  – we are told that the document will look at ‘the life-cycle’ of the right. As with the idea of ‘making land work’ this is of a piece with the artificiality and personalisation of concepts such as ‘accommodating the dominant tenement’, ‘touching and concerning’ etc. I have always found this rather silly.

3. The document does not go into history – but it is interesting to note that rights to light can be traced back into the earliest common law reports. The issue might be cutting off light to crops rather than to a house (see Seipp 1306.157), but the matter came up more commonly in a more built-up context (see, e.g., Seipp 1326.051 and 1333.150 concerning a house being built very close to another, and, amongst other things, reducing its light). Such cases were dealt with, in the early modern period, by actions on the case for nuisance (see, e.g. Baten’s Case 9 Co. Rep. 57b). In these cases, the right to light was not able to be used to block all building – a substantial interference was required before a court would act (see Baten). There remained tensions between setting the rules so as to please those wishing to build, and setting them in favour of those wishing to prevent interference with their own existing property, and the cases in the eighteenth and nineteenth centuries are not entirely consistent on the level of interference which would be actionable. Judges seemed torn between conflicting social, political and economic goals – this was, and remains, a clash between conservative landed interests and more ‘thrusting’ developers.

LH on TV: BBC – ‘Harlots, Housewives and Heroines: a 17th Century History for Girls’

Good TV history. and an interesting topic too – well done to Lucy Worsley for getting a history of women on to the TV. Along with last year’s series on servants, we seem to be seeing a bit of a departure from endless kings and battles shows. The first episode on royal mistresses was suitably scandalous, but I enjoyed the second one, on housewives (amongst other things) rather more, because there was more Legal History content. We had witchcraft, scolds and marriage law. Could do without the dressing up,  but at least it doesn’t have endless shots of our plucky historian ‘on a journey’  going around in a car. So far, something of a bias towards the upper echelons – perhaps understandable in somebody who works for Historic Royal Palaces – and knows how beautifully telegenic some of those properties are – but perhaps that will be addressed somewhat in the last episode.

Richard III – usurper’s law

All medievalists must be interested in the confirmation that Richard III’s body has at last been found – Ric. III is a divisive and fascinating figure – and the fact that the bones in question do seem to suggest some degree of disability or distortion will no doubt lead to any number of new or reheated debates. But what about Ric. III and legal history? What are his major claims to legal historical fame (aside from the usurping and probable bumping off of his nephews?

Well, he did show a bit of an interest in technical legal matters. His first legislation (Statutes of the Realm II, 477) dealt with secret feoffments, and he also provided for bail in cases of felony (SR II, 478), and attempted to stop premature forfeiture of goods before conviction. He made provision for the powers of justices of the peace and the finding of sufficient jurors, for the commercial jurisdiction of ‘pie powder’ courts, the procedure for transferring land by ‘fine’,  as well as the detailed and (to all but the economic historian) tedious regulation of different types of cloth, their size and properties,rules about bowstaves and malmsey wine, and the depressingly still-with-us populist anti-foreigner laws. So quite a lot of legislation for such a short reign, and much of it designed to show the king’s strength and involvement in doing justice to his people.

His plea rolls have been put on the internet by the excellent AALT project. They show some attractive iconography, with the symbol of the boar (see CP 40/ 885B m,1) and the York rose (see CP 40/886 m.1, CP 40/888 m.1; CP 40/890 m.1) appearing on common pleas rolls.

There is certainly room for a study of Richard III and his relationship with law – comparing his dubious royal legitimacy with his wish to be seen to uphold the law.

For a poem on the discovery, see