Author Archives: vifgage

About vifgage

Dr Gwen Seabourne teaches and researches Legal History, with a particular focus on the medieval period. She is the author of two books and several articles, mainly on this period of Legal History. Current interests include women in legal history and legal humour.

Matrons, medicine and maternity

This morning, I have been listening to a podcast of a late-2017 seminar paper from the Institute of Historical Research Late Medieval seminar:

Zosia Edwards (Royal Holloway), ‘Pregnancy diagnosis in the later Middle Ages: medical methods and courtroom procedures’

https://www.history.ac.uk/podcasts/late-medieval-seminar/pregnancy-diagnosis-later-middle-ages-medical-methods-and-courtroom

This was of interest to me in relation to two projects/areas of on-going research: my monograph on women in the medieval common law and my work on curtesy and live birth/still birth.

Its central focus was the divergence between a rich textual tradition of learned medical writing on techniques of diagnosing pregnancy and the common law’s approach, apparently scorning such learning, or the use of (male) ‘medical experts’ in favour of the judgment of ‘lay persons’: mainly ‘matrons’, though with some involvement of knights (in land cases). It includes some very good examples of both medical diagnosis and common law practice.

The divergence between learned texts and common law practice is striking divergence, and has been commented upon to some extent (e.g. by S.M. Butler). There is much to be said about the common law’s emphasis on jury findings as opposed to those of ‘experts’, not just in the medieval period and not just in medicine. In addition, it seems to me that there are also other particular  explanations for the difference in procedure in relation to pregnancy which would be worth consideration. First, the medical texts and the investigation in common law felony cases were directed at slightly different questions. In the case of the medical texts, the search (however dubious we might find the methods) was for the presence of any pregnancy. At least in the case of the ‘pregnant felon’ cases, it was a search for confirmation of a woman’s claim that she was pregnant with a ‘quick’ child: thus a less ‘expert’ and sensitive test might be thought to suffice. In addition, there does not seem to have been a desire to avoid all possible killings of pregnant women: witness the approach to those claiming a second pregnancy, the possible presence of a foetus not being sufficient to defer execution. Views on the value to be accorded by the law to the foetus at various phases of existence were in a state of development/flux in the medieval period, and trying to bring together the attitudes encapsulated by legal texts and plea rolls relating to foetuses in homicide, abortion, curtesy and other land cases is a task with which I am wrestling. A paper on determinations of live birth in relation to curtesy temp. Edward I is on its way to publication, but I would love to expand into a more general overview of ideas about the foetus/newborn in different categories of legal case. One of these days.

13/1/2019.

Regency Villas v Diamond Resorts [2018] UKSC 57 Easements in the Supreme Court: a few thoughts

Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses …

Not one of its more earth-shattering judgments, and no more dodgy golf-focused worldviews in evidence, but the Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers and law students studying this particular part of compulsory Land Law units.

The judgment came out (I refuse to use the slimily deferential ‘handed down’ and am not sufficiently down with the kids to say that it was ‘dropped’, despite the involvement of the so-called ‘Beyonce of the Law’ in the case …) in November 2018, and can be found (alongside summaries) via https://www.supremecourt.uk/cases/uksc-2017-0083.html

Law students will be delighted to learn that the SC did not come up with a unanimous view – I know you love it when they disagree and you have to get to grips with the differences! Lady Hale, Lord Kerr and  Lord Sumption agreed with Lord Briggs, whilst Lord Carnwath did not, and gave his views in a dissent at the end.

The overall result was that the appeal was dismissed: the argument that the recreational rights in question could not be easements did not find favour with the SC. It is, therefore clear that it will not be a sufficient challenge to a claimed easement to say ‘it can’t be an easement: it’s recreational’. So far, so unsurprising. The case also shows that the scope of allowable recreational easements is being stretched to include rights beyond walking and using the servient tenement as a garden, and also (at least on the facts of this case) to include the use of a wide array of facilities not in existence, perhaps not contemplated, at the time of grant.  It illustrates the lack of ‘teeth’ of the classic ‘requirement’ of accommodation of a dominant tenement and the ‘non-ouster’ idea which has arisen under the heading of ‘lying in grant’.

Much turns on the convoluted history of the land in question and on the wording of transfers. Lord Briggs gives a summary, (from [3] onwards).

In 1981, at the time of a key transfer, facilities in the alleged ST included:

  • golf course
  • outdoor heated swimming pool
  • three squash courts
  • two tennis courts
  • a restaurant, billiard/snooker room and TV room
  • gymnasium, including sauna and solarium
  • Italianate gardens
  • putting green
  • croquet lawn
  • outdoor jacuzzi/spa pool
  • ice/roller skating rink
  • platform tennis courts
  • a soft ball court (sic – softball?)
  • riding stables.

 

There were some difficulties and changes. In particular, the pool was closed and filled in. An indoor pool replaced the gymnasium. The putting green, croquet lawn, jacuzzi/spa pool and roller skating rink were closed and the riding stables demolished. The number of timeshare appartment was increased substantially. A dispute arose as to the rights of the timeshare owners to use the facilities without charge. The dispute took legal shape in the main issue of whether they had an easement or easements to use the facilities on the ‘ST’.

At first instance, the answer was that they did have easements. In the Court of Appeal, that was upheld in a general sense, though there was some variation in terms of the content of the easements: there was a net reduction, with the removal of rights to the new swimming pool and facilities in the basement of the mansion house. In the SC, the ‘servient owners’ sought a decision that none of the alleged rights were easements, and the ‘dominant owners’ wanted to hear that all of them were (i.e. that there were easements in relation to both ‘existing’ and ‘post-transfer’ facilities).

Lord Briggs’s account continued with a run through the familiar ‘rules’ as to which rights may be easements, referring to Re Ellenborough Park, and the source for its fourfold test, Cheshire’s textbook (that’s IMPACT for you, REF fans). Singled out for discussion are ‘accommodation’ and ‘ouster’. The idea that ‘accommodation’ is a useful criterion has never convinced me. Except in ‘land support’ cases, it really is a matter of value judgment. The strategy of many writers and judges is to say what sort of thing does not accommodate (usually with a reference to cricket grounds, about which we are all, naturally, well-informed: tiresome cultural assumptions) and to make not-terribly-helpful statements about the matter being one of facts, context etc. etc. Following this pattern, Lord Briggs [40] gives us some mention of the Oval and makes it clear that accommodation is only ‘in a sense’ a legal concept, and mostly a question of fact [43].

Having slightly ducked defining ‘accommodation’, he goes on to decide whether ‘recreational and sporting rights’ such as those in issue here, can be ruled out as not ‘accommodating’ (whatever that may mean) [44]. This is an important point: does it matter that a claimed right amounts to ‘an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement)’. One would imagine that it might. But not so. Because the mode of tenure of the DT at a particular time is to be fed into the calculation of accommodation – so because these were (at the moment) timeshare appartments, the right to use sporting and recreational facilities on adjacent land (whatever they may be at any given time) accommodated them in such a way as to justify a permanent right. [53] No argument of proportionality, nor tails wagging dogs, was to defeat this [54]. It does seem a significant reduction in the utility of the ‘accommodation’ criterion – but then a fairly vacuous criterion can be given whatever meaning we desire. Perhaps people should be able to make whatever deal they wish, to burden their land to whatever extent they wish. If so, however, we should stop pretending that property principles impose definite limits.

Lord Briggs did not consider that the rights amounted to an ouster of the servient owner, depite the suggestion that the dominant owner might have ‘step in’ rights to come in and manage and maintain the facilities if the servient owner did not [62]. Nor did the argument that classing the rights in issue as easements would impose obligations on the servient owner, in the view of Lord Briggs, hold water [66].

He recognised that this was something of an extension to the concept of an easement, but thought that the law ought to allow it. One argument in favour was that the ‘common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land’ [76]. This, of course, means being open to intensification of the use of land. It is interesting to consider how such a ‘principle’ (which also underpins Making Land Work) interacts with ideas of public good, planning and environmental concerns. Secondly [77] he notes developments in other common law jurisdictions which have indeed allowed some extension to recreational easements (though not obviously involving the sort of intensive artificial and perhaps environmentally harmful management required to maintain a  golf course).

Part of the route to arriving at approval of these rights as easements involved going against the Court of Appeal’s approach of ‘unbundling’ the various rights and treating them as separate, depending on date of creation of the relevant facilities, amongst other criteria. Instead, Lord Briggs reverts [85] to the first instance policy of treating them as a bundle of rights over such facilities as exist on the ST at any given time. This avoids potential issues of futurity and perpetuity (at which we may breathe a sigh of relief) but does also introduce some new artificiality, in creating the idea of rights associated with a country club [89]. Is there an agreed list of such rights? Not being likely ever to be associated with such an organisation, I would not know, but would suggest that there might be arguments around the edges.

Lord Carnwath dissents from paragraph 94 onwards. He is concerned about the extent of the imposition on the ST: [95] …’An easement is a right to do something, or to prevent something, on another’s land; not to have something done… The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming-pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management. … Thus the doing of something by the servient owner is an intrinsic part of the right claimed.’ He is not convinced that the authorities cited justify the extension required to make easements from the rights claimed [96]: ‘In effect what is claimed is not a simple property right, but permanent membership of a country club.’ He also makes light work of the ‘non-ouster’ conclusion [102] and expresses concern at the potential extent of ‘future’ rights over the ST [109-114]. All of this seems very fair comment to me.

Anyway, the decision has been made. The climate seems to be in favour of expansion of the sorts of rights which can be easements. It will be interesting to see how far this stretches. Does recreation have to be ‘active’? Could it in fact involve spectating at sporting events (and allow us to put an end to the tedious cricket examples …)? And why should somebody be allowed a right to play golf free of charge on the ST, but not be allowed an easement to have a lovely (and golfer-free) view over it? Is the positive/negative distinction above challenge, if ‘accommodation’ can be reduced to this feeble level?

12/1/2019

Disclaimer – these are my own musings, not legal advice, and subject to revision (except the negative views of cricket and golf, which will be with me until my last breath).

Papal infallibility

This morning’s mind-broadening podcast (listened to as a way of attempting to blot out the sheer tedium of a gym session) was the latest ‘In Our Time’ on papal infallibility.

https://www.bbc.co.uk/programmes/m0001yck

As ever, a good way of getting an overview of a subject on which I am not entirely ignorant, but my knowledge is pretty thin. Also as ever, however scrupulously the programme tries not to make the easy modern connections, it is very hard for the listener not to relate it to current debates about sovereignty, supra-national organisations, binding authority for the future … I now blame the Franciscans for our current slither towards Brexit.

12/1/2019.

 

Podcasts: a lot of eighteenth-century crime

 

Teaching an undergraduate Legal History unit means venturing outside my usual medieval limits, and, when it comes to criminal law and criminal justice, it means engaging with the vast and ever-increasing scholarship on the 18th century.

I will admit to a bit of anti 18th century prejudice – probably stemming from having ‘done’ 18th C history at ‘A’ level and wanting to move on from Walpole, Bubbles and Wars. But I am starting to get over it by listening to some podcasts on crime and punishment in this era (study of which is more popular than ever amongst historians, at least partly because of the Old Bailey digitisation project).

Today’s mind-broadener was from 2013 at the Institute of Historical Research, London: Steve Poole (UWE) ‘For the benefit of example’: hanging felons at the scene of their crime in the long eighteenth century’. https://www.history.ac.uk/podcasts/british-history-long-18th-century/benefit-example-hanging-felons-scene-their-crime-long

 This was extremely interesting.  It was good to hear about places other than London (the Old Bailey project, marvellous though it is, has tended to push London even more to the fore in crime history scholarship than had previously been the case) and intriguing to learn about differences in practice, and cross-currents, in relation to the location of, procession to, and conduct of executions. The paper was also very worthwhile in its demonstration of the danger of trying to impose progress narratives on the past.Apart from anything else, my heart was gladdened to see yet another example of Foucault’s much-genuflected-at theories being proved inaccurate. (One can only hope that the end is in sight for the disciplining and punishment of academia by these pretty patterns which, when examined in the context of specific histories, show their lack of substance).

This paper, and the research behind it, however, showed real substance, and introduced important matters for consideration. In particular, it is vital – though hugely difficult – to try and get one’s head around what people of the past thought was good and appropriate about public execution. There are some good and thoughtful suggestions here, and some excellent examples to back them up.

Well worth a listen.   

Judging the feelings of women

[see also my blog on this for the Bristol Law School: https://legalresearch.blogs.bris.ac.uk/2018/11/the-all-women-jury-in-r-v-sutton-1968-of-no-more-than-minor-interest/ ]

Centenary commemorations of an important step towards inclusion of women in the legal system of England and Wales will soon be upon us: it is almost 100 years since the Sex Disqualification (Removal) Act 1919 removed sex as a disqualifying factor for participation as a juror. Obviously, and importantly, this did not lead to equality either between men and women, or between women in different categories in terms of wealth, class, education or ethnicity. Nevertheless, it was a significant victory, won by persistent and righteous effort, and it deserves to be marked.

 

While the Act meant that women could be jurors, it also gave judges a discretion to choose a single sex jury (s.1)[i] This power could be used to exclude women from cases thought inappropriate for them. Excluding women was its usual function, but the section does envisage women-only juries too, ‘as the case may require’. Cases, it seems, were not thought to require women-only juries, for almost half a century following the act, but there is an interesting case from the late 1960s in which a judge decided to use it in an unexpected way, excluding all males from a jury. It is with this case that this post is concerned.[ii]

 

The case concerned the death of a small child: Miya Bibby Ullah  – a girl of three – in South Wales, in February 1968. The girl had died after having been scalded in a bath by her aunt, the accused, Margaret Ann Sutton, of an address in Cardiff.

 

The decision to order a women-only jury was made by Thesiger J when he heard the case at the assizes, in Swansea. Both the reasons for his decision and the responses to it are interesting. There are slightly differing accounts of Thesiger J’s reasoning, but there seem to have been two things which pushed him to insist on a female jury: (i) this was a case about child care, and women would know more about that than men, and; (ii) there was a need to have some insight into the feelings of women. “The judge said he felt that this was essential because it involved the bathing of a baby and the feelings of women were concerned.”[iii]

 

Leaving aside the gender stereotyping involved in this, it might seem that, if this was a matter of ‘expertise’, then witnesses, rather than jurors, would be able to provide it. It shows a strange lack of faith in male jurors to imagine them incapable of weighing up evidence relating to child care or feelings. The actual reasoning might have been a little different: it was not that men could not understand these matters – indeed, it was not that there was actually a need for an entirely female jury, but Thesiger wished to ensure there was a significant female presence in the jury, and the Act did not allow him to stipulate quotas of males and females, only all one or the other.

It is clear that the decision was Thesiger J’s own – in fact both the prosecution and the defence objected to his order, and the defence used it in an appeal. These objections are worth some consideration, as the lawyers do rather tie themselves in knots.

 

According to the Times report,[iv] Sutton’s counsel, Aubrey Myerson QC, said that making the order for an all-women jury would be an abuse of the judge’s discretion. What was his objection? The case was too emotive for a jury of women to be able to hear and decide without the steadying influence of a man or men: “this was a case which was emotionally power-packed, and to empanel a jury solely of women would present great problems because of that. It was going to be very difficult for 12 women without stability of any man being present, to apply an objective mind without partiality to the evidence in the case”. This says interesting things about women’s perceived inability to function rationally when faced with upsetting circumstances, if not helped by a man. There are, of course, implications in terms of what was supposed to happen when juries included both men and women. Myerson also made a comment straightforwardly denigrating women’s intelligence: [any jury of women was] not going to apply to the facts of this case the breadth of vision normally given by a jury in which there were men.” There we are – men: breadth of vision and their presence serving to broaden the vision of poor, narrow-visioned women. It might of course be that women in a mixed jury should just shut up and let men give full expression to their breadth of vision.

 

Myerson had a better point in relation to the judge’s assumption that just by being female, women jurors would be able to understand the accused: they were not, he said, going to be “a jury of women in the same age group as Sutton, or with the same background or intellectual capacity of the accused”.

 

The prosecution (T. E. Rhys Roberts) also objected to the order, on the ground that the subject matter was too upsetting for women: “the emotive value of injury or death to a child on a woman … would take it outside the bounds one expected of a jury”.

 

There was an attempt by the defence to change the jury by way of multiple challenges, but they were simply replaced by other women. The case proceeded.

Myerson, having lost on the question of an all-women jury, attempted to use the sex of the jurors to his (client’s) advantage, exhorting them: “In your historical role, the part you have to play is to show, in the discharge of the duties you have undertaken, that you can demonstrate to one of your own sex that high degree of fairness, that high degree of impartiality, and a complete lack of bias that reflects on your part an understanding of the mind of this woman in circumstances that can only be reflected by the acquittal of this woman.” An interesting, cajoling, tactic, but one which did not work for him: Sutton was convicted and sentenced to five years in prison.

 

Although the law reports do not mention this, newspaper sources all describe the child as ‘coloured’. Clearly, this seemed to them a relevant fact. Nobody else is described in racial terms. It looks as if  the inclusion of the child’s ‘colour’ is less about diminishing the loss or offence, and more about building up a picture of what many readers would consider the undesirable and disorderly family life of the Suttons. Thus, the accused was a ‘spinster’ mother of two, with another on the way, from Splott (a poor part of the city) and there were hints that she had been moved to treat the child unkindly because her television watching had been interrupted. The fact that she was ‘unemployed’ was noted. The ‘mixed race’ of her sister’s child might well also have suggested to some that the Sutton sisters were ‘no better than they ought to be’.

 

There is also some comment on the female jurors: newspaper reports tell us that one of them could not read the oath; that they were “middle aged”, and that half of them had changed outfit from one hearing date to the next. Whether that last point is emphasising the frivolity of the outfit-changers or the poverty of the re-wearers is not clear (but the attire of male jurors is not much commented upon).

 

Sutton appealed against conviction and sentence, in part based on an argument that there should not have been an all-women jury. Her counsel at the appeal argued that having an all-women jury had been unfair to her, because the details of the case were “so harrowing that prejudice was likely with an all-women jury”.[v] No prejudice in that remark at all.

 

The Court of Appeal (Lord Parker LCJ; Ashworth J; Davies LJ)[vi] expressed disapproval of the use of the all-women jury ‘even if the case was highly emotional’. (There is some disagreement in the establishment as to whether women’s ‘emotional’ ‘nature’ is a good or a bad thing in terms of fitting them for jury service. I may not have the breadth of vision to understand it, of course). The court did not agree that Thesiger J had acted beyond his powers or in an arbitrary way, however. The conviction and sentence stood and the possibility of all-women juries remained in theory, though Sutton did not lead to a flood of similar orders for all-women juries.

Two things would be interesting to know: (i) why did this suddenly crop up so long after the Act; and (ii) what sort of cases were originally envisaged as likely women-only jury cases? In addition, it would be interesting to see the papers relating to this case which are in the National Archives, but not due to be opened until 2044. One for legal historians of the future.

 

Sources:

R v Sutton (Margaret Anne) (1969) 53 Cr. App. R. 128

Times Tuesday, April 30, 1968, 4; Wednesday, May 01, 1968, 4; Thursday, May 02, 1968. 5; Friday, May 03, 1968, 3; Tuesday, Nov 19, 1968, 7;

http://discovery.nationalarchives.gov.uk/details/r/C4630609

Guardian 19 Nov 1968, 5.

Daily Mail 3 May 1968, 4.

Anne Logan (2013) ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70, Women’s History Review, 22:5, 701-716.

[i] Anne Logan (2013) ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70, Women’s History Review, 22:5, 701-716

[ii] Logan, 705, 706.

[iii] Times (London, England), Apr 30, 1968, 4.

[iv] Ibid.

[v] Guardian 19 Nov 1968, p. 5.

[vi] R v Sutton (Margaret Anne) (1969) 53 Cr. App. R. 128

Don’t estop me now: credibility and comments on intelligence

-Warning: explicit Land Law content. If you do not want to read musings on land law, stop right now …

James v James [2018] EWHC 43 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2018/43.html

Having had a year away from land law teaching, I am catching up on recent cases, including this one on proprietary estoppel (as well as testamentary capacity). I am not going to say anything about the actual legal points, despite the fact that this is what I am supposed to be preparing, but will comment on another interesting aspect of the approved judgment: a tendency to elaborate upon and explain the decision making process in terms of views about individuals (I think of this as the Eggheads tendency – after the quiz show where people can’t just say the answer is b, they have to ‘talk us through’ the thought-process which has led to that conclusion).

There is detailed discussion of  various witnesses:  HHJ Paul Matthews does not restrict himself to saying he believes X or believes X more than Y, and some of this material seems to go beyond credibility and into intelligence or education. For example, one of the major characters was, the judge found,  ‘a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning’. [8] And ‘For the most part, I think that [S.] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true.’[9] Some of this is honesty/credibility-related, but calling somebody ‘slow’ and criticising their reading seems to go beyond that.

 

In relation to a group of female witnesses, the judge shared his impressions at [11] that two were ’quiet and calm’. One ‘rather shy but clear and straightforward, but another, while she ‘gave evidence in a quiet tone’ also ‘ avoided eye contact and her body language suggested internal conflict.’  Some material for consideration of appropriate female witness behaviour there, I think – plus signs of great self confidence on the judge’s part of his ability to ‘read’ mental state from ‘body language’. I am not entirely convinced that has a place in an official account like this. Another ‘good’ female witness was ‘loyal.. to her husband,’ but ‘distressed by the litigation and wanted it to be over’ [12]. Yet another female witness was ‘a slow witness, with clear, trenchant views’ [13].

 

In relation to an older female witness, there is some doubt, but it is not expressed in quite such critical terms: [14] ‘[S.J.], … although she often took her time to answer, was clear and decisive when she did. Despite her advancing years, she was generally very much on the ball. But she was confused as to [a particular point]. On the other hand, she had little or no trouble in following accounts. It is plain that she had a head for business. Sometimes her answer was that she could not remember things, though I noted that that was the answer more often given when the question was a difficult one, not susceptible of a simple answer in her side’s favour. She also appeared confused about [another point]. Her answers did not square with what she said in her witness statement…. I have accepted her evidence without reserve where corroborated by other independent evidence, but otherwise with more caution.’ The first part of this sounds a bit like ‘She’s marvellous, considering …’ – a little patronising?

 

Also interesting is the decision of the judge to mention his views as to the competence and intelligence of a female solicitor in the case: ‘She struck me as a highly competent, intelligent solicitor …’ [16] while in  dealing with a male solicitor-witness, [17], there was, apparently, no need to affirm his intelligence. Likewise the male experts were ‘as one would expect … highly professional’ [18]. Might have been best avoided?

 

Clearly, the format of a civil trial requires a judge to make decisions about credibility, and comments on parties are not new, but I do wonder how it helps to hear that the judge does not rate a party’s speed of thought, and whether the study of ‘body language’ is now a respected and scientific subject, taught at judge school.

For a contrasting approach, see another proprietary estoppel case, Habberfield v Habberfield [2018] EWHC 317 (Ch), in which the judge is much less … well … judgey about individuals, and almost entirely sticks to saying which evidence he prefers on particular points. We don’t learn who is intelligent and who is ‘slow’, and yet it doesn’t detract from our understanding …  [no idea why this bit has gone red!]

Park up your troubles: newspaper coverage of neighbour dispute cases

Land law thoughts: warning – almost completely not about Legal History!

Two areas of legal interest which are more frequently covered by the right wing press than the rest of what used to be called ‘Fleet Street’ are (i) succession (when there is a family dispute); and (ii) neighbour disputes. I think there’s a Ph.D. or at least a dissertation for somebody on the way these are covered, but until it appears, here is a start in pulling together some thoughts on the neighbour disputes ones, prompted by a report in this morning’s Mail: https://www.dailymail.co.uk/news/article-6172095/Neighbours-ten-year-war-30-inch-parking-space-ends-warring-parties-paying-bills.htmlc

The case involved use of a parking space at a property in Berkshire. If the owner parked in a particular part of the space, that restricted or denied access to the neighbouring property’s back garden.

As it’s the Daily Mail, and I have read a number of such articles there, I was not surprised to see the piece highlighting the following:

  • The amount of money spent on legal action (£120,000)
  • The length of the dispute (10 years)
  • Descriptions of the disputed land: ‘a 30 inch parking space’ (imperial, obviously) and ‘a thin strip of concrete’ (concrete – a bit modern and insignificant). In fact, although it almost suggests this is an ownership issue, it isn’t: it’s an easement case.
  • A kick for lawyers, even though the piece also makes it clear that it could have been settled amicably, and the parties are ‘stubborn pensioners’ (not quite on-brand there, Daily Mail) who have engaged in ‘bickering’ and a ‘frenzy’ of legal action. The implication seems to be that lawyers encouraged the legal action (those ‘pettifogging’ slurs go deep into history) even though I would be very surprised if lawyers involved in such a case did not try and encourage the parties to come to a sensible agreement.
  • Legal bills described as ‘eye watering’ – without any context as to what was provided by the lawyers (over ten years?). It may be that they over-charged, but it isn’t possible to tell from this. The disproportion is really between the value of the land/right in question and the amount of money: and unless the evil lawyers were forcing the parties to litigate against all reason, that’s hardly their fault.
  • A photograph of the ‘winner’, who gets the right to use the path: pictured with a walking aid, though, in fact, according to the story, he does not live at the property, but rents it out. In a way, this makes the story look like ‘nasty people stop mobility-impaired man using access to his house’, when it is more ‘people use car space in a way which potentially reduces financial gain on second home’.
  • Extra facts – the applicant ‘lives with his wife’ in an ‘impressive £1.5 million 5 bedroomed house in nearby village of Cookham. The losing respondents, however, had moved down South from Scotland. This may help the DM reader to decide who is the more sympathetic ‘stubborn pensioner’ in the dispute.

A more legal explanation (including the fact that it’s about easements and prescription – lost modern grants, Prescription Act and all that getting an airing) can be seen at: http://www.bailii.org/ew/cases/EWLandRA/2018/2017_0077.pdf

This is the judgment of the Land Registration Tribunal. Here, we have metric measurements (the horror!) and some ‘nice points’ about exactly how acquiescence is to be understood (still a bit unsatisfactory, it seems to me, but let’s leave that for now), but  almost no criticism of lawyers (it does in fact speak of solicitors ‘taking up the cudgels’ after initial disputes between the parties (para 12) – which seems a little unnecessarily fighting talk-ish). Nothing about Scotland, or the applicant’s ‘impressive’ home.

Lots to compare and contrast, and the makings of an interesting study, if more examples were included.

Coke fanboys and a cheer for F. Pollock!

I recently had occasion to go over the report of Bebb v. Law Society [1914] Ch. 286 (woman wants to be solicitor; not allowed to; takes legal action; loses, because obviously women can’t do such things – they should know their place), and, apart from its steam-from-ears-inducing unfairness,  it has some interesting material for those of us who are not fans of Sir Edward Coke (some might find the words ‘over-rated ruff-wearing misogynist’ spring to mind – I could not possibly comment).

On the depressing side, it is an example of just how ludicrously deferential judges of this period were to Coke: even when he was citing the dodgy Mirror of Justices. Cozens Hardy MR at 293, ‘[T]he opinion of Lord Coke on the question of what is or what  is not the common law is one which requires no sanction from anybody else …’ while Swinfen-Eady LJ, at 296 goes with ‘It is said the authority of the Mirror is impugned. But the authority of Lord Coke is not …’ and Phillimore LJ 298 ‘Lord Coke … is only a witness, no doubt, as to the common law, but he is a witness of the highest authority’. Creepy, craven stuff. Still, I suppose the deification of Coke meant there was no need to do proper Legal History research.

Pollock, editor of the Law Reports, however, had Coke’s number, noting in a footnote that his citation was incorrect and that there was some corrupt spelling (fn on  p. 292) and in a footnote on p. 295 that ‘Coke, according to his frequent habit, felt bound to support his living knowledge of  practice by citing an apocryphal authority’. Quite right too, F.P.

All of which has left me wondering:

(1)    When did the Coke-idolisation thing end’; and

(2)    What is the most Coke-worshipping statement in a law report? I will be looking out for this from now on.

Coke’s Marriage and Treatment of his Wife and Daughter

Those writing about Coke have generally given him a rather easy ride in relation to his treatment of his wife and daughter. It is hard not to find his ‘gold digging’ matrimonial conduct and his swift and secret second marriage anything other than discreditable and distasteful, but Baker’s introduction goes no further than saying that he ‘later had cause to regret’ i: Baker, Introduction to English Legal History, 4th edn 2002, 480t). No mention of the whole abduction of daughter to force her into obviously unsuitable marriage for his advancement in the favour of important people …

‘The second Mrs Coke’, a.k.a. Lady Elizabeth Hatton is subject to straightforward, and deeply gendered, insult elsewhere: being called a ‘harridan’ in Barnes and Boyer,  Shaping the Common Law from Glanvill to Hale 1188-1688 (Stanford CA, 2008) p. 120. The abduction of his daughter is mentioned here, at p. 127.  but there is not any real criticism and nothing on the lack of suitability of the groom.

Mephitic metaphor

I am not sure we really want the mental pictures conjured up by the idea of the common law as Coke’s ‘jealous mistress’ [A.D. Boyer,  Sir Edward Coke and the Elizabethan Age (Stanford UP 2003), 32. There are all sorts of dubious metaphors about the common law, or justice, as a woman, but does it need to be a ‘mistress’, with all that that imports, and does it need to assume that there is a recognisable, accepted idea of ‘the jealous mistress’. Just unnecessary.

 

 

 

 

 

Early modern medical snippet

I am neither an early modernist nor a medical historian, but came across an early modern medical case recently and thought it was worth sharing, for the benefit of those who know more about these things.

Brashford v. Buckingham 79 ER 65 and 179 , Cro. Jac. 77 and 205, is a King’s Bench case from 1605-7 (Trinity 3 James I, and Hilary 5 James I),  concerning a promise to pay a healer £10 for healing a wound, and then a dispute as to whether payment was due. It is not especially surprising to see an action of this sort in this context (it is an ‘action on the case’, not unexpected in the medical context), and the main legal point which was of interest to the reporter concerned a technical issue of the appropriate parties, but it did strike me as slightly unusual in that the ‘medical practitioner’ was a woman.  Curing a wound which was worth £10 does sound like fairly serious medical treatment, and being trusted to do so by somebody who can pay £10 suggests a high reputation for healing. The woman in question deserves some attention from early modern medical historians.  Sadly, this will mean trawling through four KB plea rolls: KB 27/1391, 1392, 1403 and 1404, since the report (annoyingly) does not give a roll or membrane number. One day …

Life, death, dower and the twitching of legs

I have recently been doing a lot of work on the history of proving the presence or absence of life. My particular focus has been on medieval England, and on determining whether or not a baby, now dead, was ever alive so as to qualify the father for certain property rights (tenancy by the curtesy: article on its way). That has been fascinating, and I am sure there is more to discuss and discover on that point, but it is also part of a bigger question for the law, on drawing lines between life and death. This is important in criminal cases – e.g. in working out whether a person was killed by X or by Y – but it is also crucial in relation to various succession questions. As well as the curtesy cases in which there is a need to determine whether or not a live child was produced, there are cases in which it is necessary to work out the order of deaths. How was this decision made in the past?

There are two broad issues for legal historians: by what mechanism is the question decided, and by what test is it decided. My curtesy work has shown me that neither question leads to an entirely straightforward answer. Today, I came across an ‘order of death’ case from the 16th C which has set me thinking about this in a wider context.

The case, called Broughton v. Randall in the English Reports, though more properly Morgan Broughton, armiger v. Margaret, widow of Robert ap Rondell Cro Eliz 502. 78 ER 752; appears on the King’s Bench plea roll for Trinity 1596 (38 Elizabeth I), starting at KB 27/1339 m. 876 (AALT IMG 0945).  It is in the report, however, that something is said about the ‘order of deaths’ issue. This was a dower case from Denbighshire, Wales, in which Margaret was claiming land currently held by Morgan. The land in question appears to have been held jointly by Robert and his father. Both were hanged at the same time. Margaret’s chance of dower depended on it being decided that Robert had outlived his father. She was successful, and this was, according to the report, because Robert’s legs had been observed to twitch after his father was still. I am not qualified to say whether that really is a good indication of life in a meaningful sense, though I am inclined to be doubtful.

I have drawn a blank, so far, on Robert, his father and their crime, though that does seem an interesting avenue to pursue one day. Also interesting is the fact that this is a Welsh case – since there is much to be discovered about the ways in which the Welsh were arranging their property holding in this period. As far as the pinpointing of death is concerned, however, this does show the inventive approach which might be taken to establishing the facts for legal purposes. Its use of movement as a criterion is also very interesting as a counterpoint to the test in curtesy, which was traditionally more sound-focused.