Author Archives: vifgage

About vifgage

Professor 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. This site does not purport to reflect the views of her employer, nor to constitute legal advice.

Sankey Doodle

Looking for an article in the same volume of a journal, I stumbled upon this article, and it seemed worth reading and noting, for future legal historical thought. It is the text of a speech by Viscount (John) Sankey, delivered to an audience of historians, entitled ‘The Historian and the Lawyer: their aims and their methods’.[i]

Who was the author? Well, he is a familiar name to me from long-ago undergraduate legal studies, as a judge and Lord Chancellor of the past, and further details of his life (‘public’ school, university, prominence in the legal profession, politics, his long bachelor life and oddities, including something of a tendency to sulk and cry, in the face of professional setbacks, for example) can be found in the entry in the Oxford DNB.[ii]

He had studied history as well as law, and not long before this speech was published, he had made a very famous decision and pronouncement on burdens of proof in criminal law in Woolmington v. DPP (1935)[iii] – a case which required engagement with the law and legal writings of the past in some detail. Not a great deal of this comes through, however – and much of the material is more of a confident rehash of the sorts of material a reasonably well-informed general reader of his era, and with his schooling, might have known (see: tendency to equate history with war, and scattering of classical allusions).

He does note the existence of academic legal studies, and mentions Holdsworth and Maitland, but is really interested in the comparison between legal professionals and historians. Legal history seems to be an instrumental thing, rather than a pure academic pursuit:

‘one of the most important branches of history is history of the law itself, without which no lawyer’s knowledge can be really complete’ (97).

He presents some (rather banal) similarities and differences. Similarities include the idea that: both the lawyer and the historian are ‘taking part in an investigation of facts … to establish … truth’ (98);[iv] and also engaged in constructing a narrative (102); both are likely to have ‘stumbled into’ their profession, and to desire ‘the reputation which attends upon superior excellence’ in their chosen profession (98 – and note that everyone is assumed to be male); both have to find facts (99). Differences include the fact that historians tend to be looking at documents while lawyers have to deal with living people’s evidence (99).

There are a few random throw-aways which give a little insight into his attitude to the law of his own time. Litigants in person are ‘generally tiresome’ (100) for example. I am also intrigued by the way of thinking displayed in one of his more unusual flights of fancy, trying to imagine historians being more like lawyers,[v] suggesting that it might be worth trying to get at the historical truth around the Great War and its effects by having a rich American[vi] fund a collection of chapters by people from various countries involved/affected. This is conceived to be something along the lines of a jury (101). To be fair, he does not actually think it would produce a useful ‘verdict’. His view of both law and history is that they should eschew ‘partisanship’, but not ‘avoid the pull of personality’ (106 – great men then!).

It ends strongly (in my view), though, with a more interesting distinction between the importance of the influence of historical and legal endeavours, (noting that much damage can be done by blinkered, nationalist, interpretations of history, particularly since historians, unlike lawyers ‘address a jury of the young’ – 107) and, perhaps with a certain wistfulness, as he contemplated his recent demotion from the Woolsack, a final distinction between the historian, who ends his working life with the ‘friendship’ of the books he has written, and the lawyer who has no such companionship.

21/10/2023

[i] History 21 (1936) 97-108.

[ii] R. Stevens. ‘Sankey, John Viscount Sankey, 1866-1948, lord chancellor’, ODNB online.

[iii] [1935] AC 462 – if you’ve studied criminal law, you know it … at 481: ‘Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ Looking this case up, I was reminded (a) that it was tried (on one occasion) in Bristol and (b) that it was a wife murder case with a rather unconvincing-sounding defence. There was some appeal to historical legal texts in the case – and Sankey discussed these, Coke, Foster and Blackstone in particular: see 474 – 480. I was also surprised to see that it was not seen to merit its own chapter in P. Handler et al. (eds), Landmark Cases in Criminal Law (Hart, 2017). I see, though, that there is a very interesting recent treatment here: K. Crosby, “‘Well, the Burden Never Shifts, but It Does’: Celebrity, Property Offences and Judicial Innovation in Woolmington V DPP’ Legal Studies, 43: 1 (2023), 104–121.

[iv] Note the queasiness-inducing quotation about the search for truth, from Bacon’s ‘Essay of Truth’ which mentions the ‘wooing or love-making of it’, cited with apparent approval at 98.

[v] To me, it feels as if the energy is a little bit this.

[vi] Reference is made to Maecenas – look! I went to that sort of school – aren’t I great?!

Image: the man himself, smouldering to camera, if being slightly disrespectful to that law book under his elbow – I am, naturally, wondering what it is … c/o Wikimedia Commons.

Take cover[ture]

CW: Yes, I am going to talk about patriarchy again. Any delicate little flowers liable to stamp their feet/roots at that should look away now.

While my mind is on coverture, let me add this – a bit of thinking about the way in which patriarchal ideas continue to exert influence long after the point at which it is generally supposed that they were abandoned. Despite assumptions that the doctrine of coverture was killed off with the changes brought in by late 19^th C women’s property legislation in particular, the idea of coverture continued to dribble its poison into the law and life of the twentieth century, and beyond.

With my modern law lecturer hat on, I want to confirm that today’s law students, if they follow their reading lists, will encounter the idea. There are statements about the doctrine being ‘defunct’,[i] but though much of its former substance is gone, coverture has never been abolished in explicit terms in England and Wales. And that matters.

There are some surviving statutory provisions which refer to it. The one I come across every year when I am preparing my easements teaching in Land Law is the Prescription Act 1832 s.7. It is true that this statute is rarely used, but it remains grating and insulting to see the continued promotion of this language in an official source. It would probably also surprise people to learn that it is still felt that there is a need to define ‘coverture’ in the glossary of very recent current government guidance on matters of tax. There is also one attempt to use a (thinly disguised) coverture argument which I come across every year in Land Law, in the leading case of Williams & Glyn’s Bank v Boland. There was an attempt to argue that a wife’s presence in a house was not to be taken as ‘actual occupation’, but as a ‘shadow’ of the occupation of her husband. So now he is some solid object interposed between her and the sun (the law?), rather than a smothering blanket (well, that is how I have always visualised coverture), but Lord Wilberforce made the connection between this argument and the coverture-as-unity idea.[ii] More modern legal arguments in England and Wales do not seem to approach coverture reasoning quite so closely, but it is interesting to see coverture being brought up in a slightly different way, as ‘historical background’ to modern decisions, and perhaps with an undertone of the present elite congratulating itself by reference to (a simplified view of) the past. Thus, in A NHS Trust v X [2021] EWHC 65 (Fam), in the Family Division of the High Court, in a case which was not anything to do with marriage and its effects, but was about whether a Jehovah’s Witness child could refuse a blood transfusion, a judge, at 56 nevertheless shared with his audience the statement that ‘Once upon a time the [feme covert] …, by reason of her coverture, was treated as lacking the capacity she had had as a spinster and only recovered as a widow or on divorce (feme sole).’ This, it seems to me, shows a lasting fascination with the idea of coverture, and also suggests that modern lawyers are not so far away from medieval lawyers, who, if the reports which made it into the Year Books are concerned, certainly enjoyed talking about coverture, even in cases in which it was not strictly relevant.

And so to the usual question – so what? Well, in my view, the fact that there are these lingering shadows of the diminishing and discriminatory doctrine of coverture still to be seen should spur legal historians on to explore its history, to show its continuities and discontinuities, to resist easy narratives of progress: we are fooling ourselves if we think that there is such a thing as a ‘clean break’ from the patriarchal (yes, said it again!) institutions of the past.

1/10/2023

[i] See, e.g., Armstrong v Onyearu and another [2017] EWCA Civ 268; [2018] Ch. 137, argument of Simon Passfield.

[ii] [1981] A.C. 487.

Image – a shadow, probably not in actual occupation. Photo by Rene Böhmer on Unsplash

The embraces of the past

(I am not sure that this one is ever going to see the light of day as a proper REF-able ‘output’, but I enjoyed writing something on aspects of the common law’s treatment of married women it for a conference on coverture in 2022, and I feel moved to put some of it ‘out there’, for anyone who feels inclined read it, so here we are: some marital musings)

‘Coverture’ is a word well known to legal historians: the explanation for many limitations placed upon married women, and sometimes something of an excuse to leave them out of consideration, and get on with telling the more agreeable story of rises, triumphs and men. Nevertheless, the last decade or so has seen some particularly keen excavation and questioning of the nature and place of ‘coverture’ in legal history. Building on that work, I have a few thoughts.

I am going to start in what might seem like fairly unpromising territory to anyone but the most obsessive medieval property law fan: pleading in relation to voucher to warranty. And if anyone needs a refresher on what voucher to warranty is, this is something which might happen in a land dispute: a defendant is calling on somebody to back him up, and say that he does actually have a claim to the land in question. Sometimes that backer-up, the ‘vouchee’, does not want to take on this potentially onerous responsibility, and might ‘counterplead’ (i.e. argue that he should not have to) and so there would be a trial within a trial, to sort out that matter.

We can see an example of this counterplea to voucher to warranty in a land case from Herefordshire from 1292 – a mort d’ancestor case, in which one party (Ralph de Toni) claims that he should have [seisin of] some land, currently held by Roger son of Richard de Hereford, because it was held by his (Ralph’s) aunt Margery at her death, and he is next in the conventional line of inheritance. Roger was not having it, and vouched to warranty Thomas, son and heir of William de St Omer. Why should Thomas have to warrant? Well, the story was that Roger’s father, Richard, had been granted the land by William de St Omer and Petronilla his wife, by a charter with a clause which said that William, Petronilla and their heirs would warrant Richard and his heirs – so they committed themselves and their heirs to supporting Richard and his heirs if the latter faced a legal challenge of this sort. Thomas did not want to warrant, though. He found fault with Roger’s pleading: pointing out that the charter was in the names of William and Petronilla, and though William was dead (and so was represented by Thomas), Petronilla was alive, and should also have been vouched, but had not been. Roger tried to say that it was fine to leave her out, and he had not made the sort of mistake which would mean his case could not succeed. His argument was that even though the charter was under names of both William and Petronilla, it only ‘had vigour’ under William’s name. Why? Because [and here comes the ‘coverture’ bit at last] Petronilla could not oblige herself by charter, as, at the relevant time, she fuit inter brachia Willelmi viri sui’ (was within the arms of William, her husband). It was found, however, that, in this case, the ‘‘in his arms so effaced and irrelevant’ argument did not win. At law this was a joint transfer, so both William’s representative and Petronilla should have been included. The immediate outcome was that this was a bad voucher and Thomas did not have to warrant Roger.[i]

There are other quite interesting aspects to this case, but let us focus on this idea, this formula, of a wife being ‘in her husband’s arms’, and unable to do things. It seems that this was not a complete ‘one-off’, nor a factual statement about Petronilla actually being within William’s arms at the key moment, but a juridical term: there was a similar usage in a French-language Year Book report, attributed to 1311, and to everyone’s favourite cantankerous early 14^th C judge, Chief Justice Bereford. This was another voucher to warranty case, and, once again, a husband and wife had transferred some land to X, defendant in a land action, and X vouched only one party – here, the wife’s heir, the wife now being dead but the husband alive. It was argued – successfully – that both the husband and the wife’s heir should have been vouched, because the wife, who was, at the time, ‘enter ses bras’ could not make a transfer of land on her own.[ii] [Substantive point QI – both parties needed].

That is a lot of land law to get to [a fairly arcane legal point and] two little phrases. Why do I think these cases, and this ‘within his arms’ business, are interesting? Well, first of all, I think these examples show something of the contexts in which ‘coverture’ type questions could arise in medieval common law. These are hardly big, exciting cases dealing head-on with the patriarchy and the rights of women: the reports show us that these are instances of men arguing about land, looking for a technical mis-step in pleading or procedure. Nobody really cares about Petronilla in that 1292 case: she is a device. It seems important – telling – that ‘the coverture stuff’ quite often comes up on very small pleading points, not big ‘rightsy’ questions.

Secondly, there is the image itself: the wife in the husband’s arms. What does that specific image suggest, and how does it relate to existing scholarship on ‘coverture’? It seems to me to be very ambiguous: should we be seeing it as an embrace or a restraint? Should we be thinking vertically or horizontally? There are resonances with the formula in medieval ‘criminal’ law, in appeals (individual prosecutions) brought by a widow for the killing of her husband: until the later 14^th century, she had to claim that he had died ‘in her arms’. The ‘in his arms’ formulation is a bit different to the better-known expressions relating to married people in medieval and later legal sources, with their ideas of unity or domination. ‘Within his arms’ seems to me to be more complex, and more obviously temporary. In my view, it reinforces the argument – made by others[iii] that the central idea of ‘coverture’, or the husband/wife relationship at common law was unsettled in the medieval period (though within male control, since the power in that embrace, to contain, or to release, was all with the man).

And does it matter, this argued-for unsettled nature of medieval ‘coverture’? Is this just some academic navel-gazing, disappearing up her own backside and furiously ‘nuancing’ things long gone? It does seem to me that it is important to keep making the point that some of the apparently monolithic, unchanging, institutions and ‘doctrines’ of the common law were not inevitable, nor did they descend, fully formed, without being adopted and adapted by individuals and groups with influence over the content of the law, who saw in them some advantage to themselves and their view of the way things should be. Throwing back the sometimes lazily-arranged covers, exposing the complexity the common law’s treatment of women, appears necessary, both to do what we can to understand the conditions (physical, legal, cultural) in which countless women lived their lives, and also to recognise the continuation into our own lives and times of some ways of talking about, thinking about, and behaving in, marriage and other domestic relationships.

And so, dearly beloved, will I continue on my obscure little way, going on about this women stuff, and possibly even using the word ‘patriarchy’ from time to time?

I will.

30/9/2023

[i] JUST 1/303 m.21.

[ii]Seipp 1311.21

[iii] See, in particular, Married Women and the Law : Coverture in England and the Common Law World, edited by Tim Stretton and K. J Kesselring, McGill-Queen’s University Press, 2013 (editors’ very helpful introduction, and c. 2 (S.M. Butler).

The nun and the notary

A while back, I wrote a short piece about medieval nuns being abducted, and/or eloping from their convents (you can see it here). A small footnote to that is this case, from the King’s Bench roll of Michaelmas 1442, which tells a nun-abduction story with some interesting variations in the narrative.

An entry on KB 27/726 Rex m.4 (AALT image 0275), which you can see here,[i] notes that a Middlesex jury made a presentment (accusation) in relation to a certain John Andrew of Huntingdon, notary. They said that, on 1^st May 1441, John had feloniously raped/ravished[ii] and abducted Elizabeth, a nun of the house of Fynchyngbrook, Hunts, [Hinchin(g)brook(e)] in the Strand, and, having abducted her against her will, he kept her for the following year, living an immoderate (or wanton?) life (luxuriose vivendo), reducing the level of divine service in the said church (or that’s my best effort!). In a familiar pattern, a great deal of procedural toing and froing follows, and in the end Andrewe is acquitted.

An anticlimax, but so many questions!

First of all – we can’t help but ask ourselves, can we? – what was the truth of the matter? Complete pack of lies? Abduction and then some sort of acquiescence? Abduction and continued objection? Elopement? If this whole story had any truth in it, was she meeting the notary on some official, legal business? If Elizabeth was indeed a nun of the Benedictine priory of Hinchin(g)brook, her convent seems to have been in a bit of a sorry state in the 1440s, and the possibility that it might go out of business seems to have been recognised in a royal grant later in the decade. As ever, we will never know.

Secondly – what is going on with that narrative? Why tell us about the alleged style of life of Elizabeth, post-abduction? Why mention the bit about diminution in divine service as a result of the abduction? This all seems to be a muddle. The abduction of nuns was an offence under the statute of Westminster II 1285, c.34, in any case – there was no need to give an account of the damage caused by the nun’s absence. The immoderate living part here seems to be a matter of general misogynist mud-slinging, rather undermining the apparent fair-mindedness of the statement that that the abduction was contrary to Elizabeth’s will. Can a person can live luxuriose without their co-operation? And the bit about diminution in divine service is worth some thought: I would imagine that it was influenced by several decades of bedding-in of the Labourers legislation, focused as it was on withdrawal of services which were due, and loss caused thereby. But a nun was not really equivalent to an ordinary labourer (for who was her employer?), nor (I think) to a male cleric who had covenanted to sing. So perhaps this was a bit of a non-starter, and that was recognised. There does not seem to be a connected law report, sadly, so there is no sign that this issue got the full court-room debate treatment. So off it goes onto the intractable mystery pile – I will be interested to see whether there is any other information out there on either of the alleged parties, or the events in this story, but sometimes you just have to let things go.

23/9/2023

Image, Wikimedia Commons

[i] See also the King’s Bench Indictment File for Trinity 1442, here.

[ii] rapuit

Suffering Suffragettes

Currently walking past this fine Lego suffragette each day, in the foyer of the Wills Memorial Building. It has got me wondering whether her location was chosen in the knowledge that the WMB, though it was not there at the time, was just about opposite the site of the WSPU shop and HQ which was trashed by a mob of anti-suffragists and/or enraged Bristol University students in 1913, without much, if any, of a police response. See, e.g., this

It also brings back good memories of some good seminars I organised with a colleague here at the Law School in 2013, on this subject, and of a fun bit of animation I assisted with at home – still out in the ether here.

22/10/2023

Marguerite Gollancz: academia and the archivist

In a couple of days, I will be attending an event run by Selden’s Sister, a group of legal historians who are interested in uncovering, highlighting and celebrating the contributions of women to legal history. Going beyond the better known women historians of matters law-adjacent (Stenton, Cam, Putnam … ) and beyond England as well, the event will look at a number of very interesting women and their work.

Thinking about ‘women legal historians’ of the nineteenth and earlier twentieth centuries is not easy. In England, legal history has developed, on the whole, as LEGAL history: firmly attached to legal scholarship and the legal profession. And women had a long struggle to enter that world. We are not going to find ‘the female Maitland’. We can, however, find numerous female historians who took an interest in matters which come within a broad conception of legal history. There are those who managed to carve out an academic career for themselves, and duly became reasonably well known. As is always the case with the study of women in history, however, we should take the opportunity to think laterally and creatively, and not to assume that we can find women who might be classed as having made a contribution to legal history only within formal academic settings. There is a particularly good case for investigating and highlighting some of the pioneering women who worked as county and municipal archivists. One of these, and somebody whose career and life seem to me to be rather interesting, was Marguerite Henrietta Gollancz (1911-1981). This is a short introduction to somebody who might not be familiar, but seems very worthy of further investigation.

I see that the catalogue of Trinity College, Cambridge lists the authorised form of her name as ‘Gollancz, Marguerite Henrietta (1911-1981), daughter of Israel Gollancz’. Her father was certainly a notable figure, a professor of English and leading light in the British Academy, (and he can be found in the Oxford Dictionary of National Biography) and no doubt his interests and encouragement, and provision of ‘a home devoted to books and study’,[i] helped shape Marguerite’s own inclinations and life-chances, but she was clearly a lot more than somebody’s daughter.

She went from South Hampstead High School to Girton College Cambridge, where she studied history and was taught by Helen Maud Cam, amongst others. She then took her study further in the University of London, and wrote an MA dissertation,[ii] supervised by C.H. Williams, on fifteenth century gaol delivery.[iii] She edited rolls of the fourteenth century sessions of the peace for the Northamptonshire Record Society, publishing in 1940,[iv] (those two things qualify her as a legal historian, in my book).[v] During the war she took on administrative work for the civil service, and also worked with civil service records, in connection with the writing of a Civil History of the War. [vi]

Her career as an archivist took off after WWII, when, in 1947, she began work as the county archivist of Staffordshire and librarian at the William Salt library. The County Records Committee reported both her initial annual salary (£460 pa) and how this might rise in increments to ‘a maximum of £510 per annum plus bonus’. [vii] [I do find myself wondering what would have been deemed worthy of a bonus in the world of county archiving].

Newspapers give the odd glimpse of her life as a working archivist. She appealed for the public to bring in their old documents, stressing that there might be interest in more recent as well as ancient records.[viii] She gave a view in an apparently contentious issue of whether old Lichfield probate records should be brought back to Staffordshire.[ix]

In 1955, she resigned, having secured a job with Surrey County Council, as their archivist.[x] She then moved to Surbiton.[xi] She began work as Surrey’s first county archivist in 1956, and continued until her retirement in 1974. A picture of her in this role can be seen here.

In her obituaries, something of a point is made about the fact that she did not publish very much ‘on her own account’.

‘In later years, her scholarly work was to be subordinated to the claims of her professional duties, to which she devoted much of her free time, and to the service of record publishing and local history societies. [xii]

‘Her official duties … and her commitment to assisting researchers and editors left little time for publication on her own account, but a number of notes and reviews from her pen have appeared in our publication.’[xiii]

To some extent this is given a positive spin (she was too busy being helpful to other researchers, and looking after her staff, to do so) but it is quite interesting that it is assumed that the only natural goal of somebody with a skill for history is academic-style publication. There is all sorts of gender-focused discussion to be had about that. In fact, to those of us working in modern academia, some of the activities of Marguerite Gollancz rather chime in with the sort of things we are encouraged to do: being ‘public historians’ and having ‘impact’. We saw her engaging with the public of Staffordshire, getting them to bring in their documents (co-production?). Newspapers record her exhibitions (e.g. in connection with the Festival of Britain and the Coronation of Elizabeth II, during her time at the Staffordshire Archive post), and her public lectures.[xiv]

Her commitment to the archives and the work of preserving historical documents was reflected in substantial legacies to archives with which she had been associated.[xv] I am not sure that that counts as ‘impact’, though it certainly shows dedication.

Marguerite’s papers are, fittingly, neatly catalogued in an archive. This, surely, is what she would have wanted.

30/08/23

Postscript

I was interested to see that Marguerite Gollancz was thanked in the preface to the formidable Bertha H. Putnam’s The Place in Legal History of Sir William Shareshull, Chief Justice of the King’s Bench 1350-61 (Cambridge, 1950). Interesting to see these connections.

11/1/2023

Photo by Javier Balseiro on Unsplash

[i] Staffordshire Advertiser, 6^th September 1947, p. 5.

[ii] Staffordshire Advertiser, 6^th September 1947, p. 5.

[iii] Obituaries, Journal of the Society of Archivists, 6:8 (1981), 532-538; Marguerite Gollancz, ‘The system of gaol delivery as illustrated in the extant gaol delivery rolls of the fifteenth century’, Bulletin of the Institute of Historical Research, 16.48 (1939) 191-3. I would like to track down that thesis.

[iv] Obituaries, JSA.

[v] Staffordshire Advertiser, 6^th September 1947, p. 5.

[vi] Staffordshire Advertiser, 6^th September 1947, p. 5.

[vii] Staffordshire Advertiser, 6^th September 1947, p. 5. 2^nd August 1947, p. 3.

[viii] Burton Observer and Chronicle, 15^th February, 1951, p.1.

[ix] Lichfield Mercury, 12^th October, 1956.

[x] Staffordshire Sentinel, 2^nd December, 1955, p. 12.

[xi] Staffordshire Newsletter, 15^th May,1981, p. 11.

[xii] Obituaries, JSA.

[xiii] D. R. Robinson, ‘Miss Marguerite Gollancz: Obituary’, Surrey Arch. Soc. Bulletin, 171 March/April 1981.

[xiv] Surrey Advertiser, 12^th January,1963, p 14, noting that Gollancz was to lecture on ‘Cobham in the late eighteenth century’ at Stoke D’Abernon Village Hall. If the presence of the learned county archivist was not enough, attendees were promised old maps, documents and … best of all … colour slides taken by Mr A Bourne (who lived in the village).

[xv] Staffordshire Newsletter, Fri 15 May 1981 p. 11.

Judge Owen and the Business of Bees

Today, I went to a nice event at the University of Bristol Botanic Garden, a Bee and Pollination Festival – lots of honey, hives, demonstrations etc. Inevitably, it got me thinking about the bee in legal history. Now, scholars of Roman law[i] and Irish law in particular have taken an interest in property in bees, but, fascinating though that is, I am not going to go in that direction. No. I am going to my old mental stamping ground, the South Wales of the turn of the 19^th-20^th centuries, and to another case featuring one of the characters in whom I have taken an interest in recent years – Judge Owen.

The Weekly Mail 14^th October 1899 under the thrilling headline ‘Are Bees A Nuisance?’ notes that the good judge, at Cardiff County Court, had to decide a ‘fine point’ on this, but was not going to decide it straight away. The case of the buzzing peril had arisen between Juan Cascago, ship broker, of Valladolid, but resident, less glamorously perhaps, in Radyr (plaintiff) and Benjamin Davies clerk, Coedwyn, Radyr. Cascago wanted £20 in damages, plus an injunction to restrain Davies from keeping bees (or bees which caused a nuisance, anyway).

Judge Owen, as was his little way, made a joke of the case, reportedly causing laughter by his remark, ‘Ho, ho, ho! Here is some one wanting an injunction to restrain some one from keeping bees!’. Another report has him exclaiming that it was the funniest case which had been brought before him. Which seems a little strong. But, anyway, Owen thought it was ‘absurd’ to think an order could be made against keeping bees so as to be a nuisance, because it would be impossible to enforce, and there was discussion of an even weaker joke about the muzzling of bees, and of whether they could sting more than once.

It was pointed out that there had been a similar case recently, at Bath,[ii] but Owen persisted in thinking that the whole thing was a bit mad, and adjourned the case for a month so that the parties could come to an agreement.

Tantalisingly, no end is reported, so I am not able, at this point, to say whether Mr Davies was restrained, and his bees muzzled, or not. We are, of course, missing important aspects of context – what was the location of the hives, the size of the properties, the number of bees? It is not too difficult to imagine a situation of bee-keeping which might amount to a tort. Judge Owen, however, does not seem to have seen this – or at least he did not see the possibility of making an order which would stop the defendant from keeping bees which were causing a nuisance (as opposed to injunctions against individual bees). So – interesting on bees, but also telling on attitudes to what neighbours could do, and what they must tolerate. Injunctions were granted in similar situations in the 20^th C (see, e.g., Halifax Evening Courier, 15^th February 1939, p. 8) And, of course on the wit and wisdom of South Wales’s newspapers’ favourite Victorian/Edwardian judge.

The story also made it into the Welsh language press, (see Y Cymro, which, I note, does not translate ‘nuisance’, clearly a nasty English concept unworthy of being rendered in the old language … ).

27/8/2023

Image: a bee, though this bee wants it made clear that it is not implicated in any bee-nuisance activities. Photo by Tania P on Unsplash

[i] See Paul du Plessis, Borkowski’s Textbook on Roman Law 6^th edn, 7.2.3.1 and Kearry v Pattinson [1939] 1 KB 471).

[ii] This is confirmed by other reports of an injunction against bee-keeping in a ‘congested district’, which had caused the plaintiff not to be able to use or tend her garden.

Wythcok man comes to a sticky end; ‘Clapp’ implicated

It’s been a while since I noted a medieval death story. This one (JUST 2/59 m. 3; AALT IMG 0009), coming from a Leicestershire coroner’s Inquest at Wythcok on Friday 23^rd March, 1386, has just one small point which captured my attention – and no, it was not even the rude-punnable location of the death. (FYI the deathplace seems now to be known as ‘Withcote’ – much less snigger-worthy …). The thing which drew me in was to do with what the entry shows about medieval popular understanding of science.

The entry tells it like this …

John Ludon of Wythcok, whose body was being viewed, had come a cropper in the fields of Wythcok, the previous day, at around the ninth hour of the day. Evidently he was out in a storm, and had the extreme bad luck to be hit by lightning. Or that is how we would see it. The entry, however, says that what hit him was a ‘thondurclapp’. I have undoubtedly gone on about how I like it when the usual Latin of these records breaks down and the writer reaches, instead, for a more earthy English word or expression. There is all sorts of very learned discussion of ‘code-switching’ in literature, and the trilinguality of the common law, but sometimes, it just feels as if the clerk did not know the right word in the more professionally exclusive languages. This one also gives us a little glimpse into ideas about how storms worked. John is hit in the arm by the thunderclap itself. I am not sure I have any grand conclusion on the basis of this – and certainly the idea that it was lightning and not thunder which hit people was known in classical antiquity – but, still, it is an interesting way of putting it. And another tiny snippet – the result of the ‘hit’ by the thunder-clap was an ictus (blow/wound) on John’s arm, and it was from this that John immediately died. Unlike the possible conclusion in classical antiquity (person hit by lightning is not to get proper religious burial, because such zappings were the will of the gods), however, John’s death was held to be a ‘misfortune’ or ‘accident’, and so he would have been fine to make his way into some consecrated Wythcok ground. A tiny bit of comfort then. I do wonder what medieval body-inspectors would have made of the characteristic scarring pattern found on (some) lightning strike victims, the Lichtenberg figure. That would probably have seemed pretty spooky, I would have thought.

16/8/2023

Photo by Michał Mancewicz on Unsplash

Hedge funds and attempted enclosures: Darwall v. Dartmoor National Park Authority and another [2023] EWCA Civ 927

The CA judgment in Darwall is out. I will confess that I thought it would go the other way – not because natural pessimism led me to expect things to turn out in the way opposite to my preference, but just because, given that changes to the extent of access to the countryside have become part of the likely programmes of political parties, it seemed as if it might be a plausible choice for the CA to say ‘this is one for Parliament to sort out, not us’. Got that one wrong.

Anyway, no doubt I will revisit this, and may update/beef up as I wade through the CA livestream, but it seems worth noting a few immediate thoughts. So –

What is it about?

Alexander and Diana Darwall sought a declaration that people had no right to ‘wild camp’ on Dartmoor, where they owned (a lot of) land. ‘Wild camping’, is, helpfully, defined for us by Underhill LJ as:

a modish phrase which I understand to mean camping overnight in a place which is not a dedicated campsite

There had been an idea that there was such a right in the National Park there, even though there was not generally such a right in England. In the High Court, (: [2023] EWHC 35 (Ch)) Darwall won, and the relevant National Park authority appealed.

Why is it interesting?

Well, it is a fight on the borderline of the extent of a landowner’s power to exclude and the right of the public to obtain access to England’s wild places.

Essentially, it was uncontroversial that the public had access to the National Park for purposes of (for example) walking – so there were definitely some limits to the Darwalls’ rights as landowners, but was wild camping (i.e. camping other than at a designated site, with permission) allowed as well, or not? In the High Court, a judge (Flaux J) had said no. The CA (Vos MR, Underhill and Newey LJJ) however, were convinced that that was incorrect:

‘57. I, therefore, conclude that the grant to the public of “a right of access to the [Dartmoor Commons] on foot and on horseback for the purpose of open-air recreation” does allow members of the public to rest and sleep, whether by day or by night, whether on the ground or in a tent. I do not think that the use of the word “open-air” means that a tent cannot be used for the necessary incidents of walking …’ [Vos]

Despite being about pretty big principles, the CA case was argued on the less-swashbuckling territory of construction of certain legislation specific to Dartmoor itself, and particularly the following words: “the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation” – Dartmoor Commons Act 1985 s. 10(1).

What not-entirely-legally-relevant hares has it set off running in my head?

I thank myself for asking. Well I do I find it rather interesting that there is considerable variation, in the judgments and in newspaper coverage, in the way in which the Darwalls are described. They are ‘farmers, landowners and commoners’ in one place [H Ct 4; CA, 33], which gives a certain spin to things to most people, I would imagine. Farmers – well, they are often treated as a bit special in Land Law, aren’t they (see various proprietary estoppel cases which seem to view farmers and their ways as not like other people, even if they are running rather large concerns in a business-oriented way)? And ‘commoners’ sounds very rustic and old world. Not quite how things are here – as various journalistic sources tell us, Alexander Darwall is not a life-long tiller of the soil, herder of beasts etc., but somebody who was primarily a hedge fund manager, acquiring land in the National Park relatively recently, and using it for, amongst other things, pheasant shooting and deer stalking (see, e.g. the Guardian , which also notes certain political activities).

I also rather enjoyed some of the gymnastics involved in trying to argue that camping was, or was not ‘open air recreation’ (either because canvas meant it was not ‘open air’ or because recreation had to be something physically active and could not be stationary) (see e.g. CA at 55).

Almost finally, one thing which often strikes me as worthy of further study, though I have not made a thorough-enough study of it to say much about it, is the judicial performance of emotion. Expressions of ‘real sympathy’ for the landowners at 72 (CA, Underhill LJ) – what do we think? In a judgment which otherwise seems to be at pains to keep to the statutory construction task, that choice did stand out to me as interesting.

Actually finally, and despite his being on ‘the wrong side’, I do have to award a special gold star for creativity to Timothy Morshead KC, who is reported to have made an allusion to a famous poem by Keats, relating to those ‘long in city pent’, which, although it does mention not being in motion at all times, seems to describe access to the countryside on a day basis, rather than camping, neatly supporting his clients’ case (H Ct, 40).

A good one for a Land Law reading list?

Yes – clearly an important area, and something which is ripe for a bit of debate about the limits of rights in and to land. Also shows that fights about pretty fundamental principles can be tied up in painstakingly detailed analysis of the wording of statutes, so rams home the Land Law lecturer’s favourite instruction: you need to be precise! Also –it weighs in at a mere 20 pages: see, proprietary estoppel case judges – you don’t actually have to get into 3 figures…

5/8/2023

Photo by serena saponaro on Unsplash

Words about words (in English and Welsh) about deeds not words

This is a paper I wrote in 2013, as part of a project to mark the anniversary of some ‘suffragette’ incidents in Bristol and elsewhere. Clearly, I never quite got around to tidying it up into a state suitable for submission to a journal. Maybe I will, one day, but, having come upon it as I clear out my home of many years, I thought I would put it out there in the world at least, and maybe it will be of interest to people looking for material on the suffrage campaign, on Abergavenny, or on Wales. I have more material on this, and especially a number of intriguing suffragette-related poems in Welsh to finish turning into English, but I think there are some points which can be made now (and, realistically, I have my hands full for the next few months, so, unless the whole thing is to be put back behind the back-burner, it feels like time to offer it up to the silent void). A bit of Swedish death cleaning (except, not off just yet, and in English/Welsh, not Swedish).

Coming back to these stories after a decade, two things strike me. First of all, the issue of a clash between different groups, with different claims to a history of bad treatment, brought into conflict, which we see in the ‘Suffragettes v. Eisteddfodwyr’ tension, has come to resonate even more than it did in 2013. I am not of the view that history has direct, simple, lessons for the present, but it is certainly interesting to think about the compound clash of identities involved in the episodes to be considered here – sex/gender, class, language, nation – all taking place in the fluid border country of Monmouthshire, which happens to be my native soil.

Off it goes … far from perfect, but has its good points …

Taking too long?

Reload document

Open in new tab

Download

24/7/2023

Photo by Ricardo Gomez Angel on Unsplash

Bracton's Sister

Legal History research site of Gwen Seabourne