Category Archives: General Rambles

Study Law … it’s better than eternal damnation!

Enjoying listening to the recent radio version of Marlowe’s Dr Faustus: BBC Radio 3 – Drama on 3, Doctor Faustus. Many of us will remember the lines about kissing Helen and being made immortal etc, but I was struck by this in the first scene – when he is having a bit of angst about where to direct his studies:

‘Both law and physic are for petty wits’

and this

‘This study [i.e. Law] fits a mercenary drudge who aims at nothing but external trash; Too servile and illiberal for me.‘

Not ones anyone is likely to use in their student recruitment material! Still, granted that he would have been better off sticking with Justinian and problems about succession, maybe it could be used in a sophisticated campaign saying ‘Study Law: it’s better than getting involved in a dodgy deal with the devil and ending up eternally damned …’ [I have missed my vocation in marketing, haven’t I?]

(Image, C. Marlowe, courtesy of Wikimedia Commons. Check out that fancy doublet!).

Hegal Listory

No doubt I risk tutting, sneering and/or wrath in pointing this out (again … see this old post) but … I am not sure that some parts of the world of legal history academia are aware of the concept of the manel and the general acceptance that diversity is a good thing …

Oh look – while the ladies may be allowed in to give the odd seminar, the speaker for the big lecture at the Cambridge Centre for English Legal History is … yup, another bloke …

It is rather worrying that there are no women legal historians (or historians of law, or former lawyers known to give a good talk…) isn’t it? I definitely can’t think of several.

[Voice offstage: Ah life was simpler in the good old days …

 

We would definitely never plan a big project with only men nowadays, would we …Oh …]

GS

12/10/2021

 

… and also … from this week’s reading (17/10/2021)

Another indication of the worrying lack of women who are able to do these things:

D Ibbetson, N Jones and Nigel Ramsay (eds), English Legal History and its Sources (CUP 2019) Chapters by males: females = 17:3.

 

Manicules and many hands: a little musing on the wonders of AALT

Like just about everyone who writes about the early history of the common law, I am a heavy user of the digitised manuscripts on the Anglo-American Legal Tradition website. They were especially valuable during the worst of the pandemic, of course, but many of us had been using them regularly long before that. Even for people living in the UK, it is often not feasible to get to the National Archives (ludicrously expensive and time consuming getting to central London by rail, and then out to Kew) and that is as nothing compared to the fun and games which researchers from other parts of the world must encounter. That being so, easy online access has been an enormous bonus. I realised just how much I had come to rely upon it, when AALT was unavailable for a few days last academic year, and I felt decidedly panicky. This morning, I have been doing a bit of leisurely searching in AALT plea rolls (I know it’s Saturday, but I definitely need a distraction from the ominous sounds of offspring packing for imminent departures to university… ) and, in best Carrie Bradshaw fashion (if the ever-profound lead of Sex and the City had been a legal historian), ‘got to thinking’ about the changing experiences of legal historical research which I have had, since I started out in the 1990s.

My first real encounter with medieval manuscripts came as a PhD student – up to that point, it had mostly been transcribed and translated things in the Selden Society volumes and similar publications, with a few early modern bits and pieces to do with the Bank of England when I had a job as research assistant at the Law Commission, including working on the repeal of parts of the early legislation regulating the Bank. I designed a project for the Ph.D., making the somewhat arrogant assumption that I would be able to just bowl up to the Public Record Office (as it then was) and read eyre rolls, to locate presentments and prosecutions of usurers and offenders against price regulations. Obviously, it soon became apparent that it would take quite a while to get to grips with the great and contrary membranes, the script and the abbreviations (not to mention the springiness of some of the tightest rolled ones, and the fear of handling some of the crumblier-edged ones). It is odd to think that just about everything I traipsed down to Chancery Lane to examine is now available with a few clicks on the AALT site. Just as well for the state of the records that present day versions of Ph.D.- me can have their clumsy hands kept off precious pieces of legal heritage to a great extent.

The experience of looking at the rolls online is, of course, not quite like ‘the real thing’. There is something special in making physical contact with the work of long-ago clerks. But there are also positives in using the scans. It is possible to expand the picture, to help make out more obscure words (or make a better guess, at least…). It is easier to go back and check something than is the case when using physical records. And then there is a certain charm in the online site itself. I am sure that others could add to the list, but there are two things that strike me about it, quite regularly. The first, and  more trifling, is a by-product of frequent use of the site – the odd misfire in searching for the site means that I have become unusually well acquainted with: (i) Aalto University in Finland and (ii) a Dutch serial killer nicknamed ‘Aalt’.  The second is to do with hands.

‘Hands’ can mean different things to people in the nerdy manuscript-fancying community, of course: perhaps first of all we’d think of writing styles and individual quirks. A lot of puzzle-solving entertainment to be had there, for those who like that sort of thing. Then we might think of manicules – the little pointing hands we see in the margin of manuscripts, indicating cases or things that the clerk thought might need to be found again, or which should be noted. What I am mostly thinking about, though is actual, present day hands: the springy nature of the rolls sometimes makes it necessary to hold them down whilst they are photographed, with the result that the AALT shots contain numerous images of the hands of those creating the digital archive – shots like this one.  That is going to be a sort of manual immortality one day, isn’t it? (Especially if the MSS themselves become more frail and less accessible). It certainly gives an inkling of the general effort involved in making these images available to anyone who wants to see them, and I find it a really interesting additional piece in the story of the handing on (!) of the information contained in the rolls, from one generation to the next.

GS

25/9/2021

Photo by Sebastian Dumitru on Unsplash

No, no, no, no, no, no, no, no, no, no, no, no, there’s no Limit[ation of Actions volume]

A bit out of date, surely, referring to a Euro-dance classic by 2Unlimited? Yes, but … that’s sort of the point of this particular ‘blog as therapy’ post.

Sorting out some long-overdue personal and work admin matters, I came across an email exchange from 2013 (yes I am a digital hoarder/archivally oriented/keeper of proof) about a volume on Limitation of Actions which a former colleague was putting together. I was to write ‘the historical bit’ and various other thrilling chapters would follow. Of course I did my section. Then, for whatever reason, the project ground to a halt.

It is not the greatest piece of legal scholarship, by any means, and it didn’t take me that long, but still … it is a shame to have bothered and never to have seen the thing come out. I have had such varied experiences with edited collections – nothing but good to say about some of them (esp. Weikert/Bennet Hostages Book – that was extremely efficient) but others  … I actually have another, more substantial thing for an edited collection which has a number of years of ‘forthcomingness’ behind it, which I hope is actually going to appear very soon … otherwise this may become a series of ‘things I was asked to do, and did, which somehow never got published’ …

The limitation thing, though – I think it’s time to put it out there, for what it is worth, and (shudder) move the email exchange from the ‘to do’ folder to the outer reaches of the ‘archive’ folder. There comes a point when hope and dutiful waiting reach their limitation period, after all.

So here we are, for anyone who wants a quick introduction to the ideas behind limitation of (civil) actions  – and bear in mind it is from 2013!

GS

20/8/2021

 

Gwen Seabourne, Historical Introduction to Limitation of Actions

 

I: Antiquity and rationale of the limitation idea

 

The idea of setting some temporal limit to the right to bring a legal action is very ancient, with antecedents in both Old Testament law and Roman law.[1] It is a concept long established in English law and exported to the common law world.

 

Various reasons have been put forward for having a limit to the right to bring an action. Some of these focus on the claimant, expressing a reluctance to support a person who ‘sleeps on his rights’, [2]  or a suspicion that such a claimant may be a perjurer.[3] Others focus on the defendant, and the perceived unfairness of leaving people vulnerable to legal action without temporal limit.[4] A third explanation concerns the legal process itself, the fairness of which might be compromised by allowing ‘old claims’, since evidence may deteriorate or disappear, and memories may become unreliable. Fourthly, there are wider justifications based on claims that not limiting actions would be deleterious to the economy (by discouraging enterprise) or to public order.[5] Finally, specifically in the context of land actions, it has been suggested that, if a claimant brings an action long after a defendant’s alleged wrong, it should be presumed that at some point during this long period of delay, the defendant in fact did gain proper title to the land in question.[6]

 

 

II: The English Context

 

(i) to 1540

English law has had two differing ways of meeting the concerns noted above. One has been to limit actions when the individual claimant’s delay is seen as unconscionable. The central example of this is the equitable doctrine of laches, though some forms of estoppel could also be seen in this way. The other response has been to provide that, in all cases of a particular type, actions shall be barred after a certain period, without the necessity of referring to individual conscience or circumstances.

 

From the twelfth century onwards, there was royal intervention, setting limitation dates in relation to certain types of legal actions.[7] The strategy was to use as a cut-off point some significant and well-known political event, such as the death or accession of a king, or the return of a king from an overseas expedition.[8] There was a lack of articulation of the reasons for limiting actions in such a way, and it is likely that the concern was with establishing stability of land-holding after a period of uncertainty as much as with fairness to the parties in individual cases. After the the reign of Edward I, the twelfth and thirteenth century dates were not further adjusted, so that the effective limitation period for those actions covered by earlier statutes grew in length each year. Blackstone called this situation ‘absurd’.[9]

 

As well as the statutes, the medieval common law set temporal limitations in other ways. The related idea of prescriptive acquisition had some role in relation to the acquisition of franchise rights, common rights and perhaps personal freedom.[10] Human lifespan was sometimes a limiting factor, since some forms of action did not survive the parties.[11] For evidential reasons, some criminal cases were required to be brought within a short time limit – notably rape accusations.[12] In addition, within the legal profession, there are hints of a general principle of limitation in the view that ‘every writ has its limitation period’, given in a case of 1285.[13]

 

(ii) from 1540: ‘another and more direct course which might endure for ever’[14]

 

The policy of setting by statute a fixed number of years as a limitation period for (some) actions was first introduced in 1540.[15] This legislation of Henry VIII was concerned with land actions.[16]

 

The statutes’ coverage was relatively narrow. The medieval legislation and the act of 1540 concerned only land actions,[17] and, even within the category of land actions, they were not comprehensive.[18]  It was not until the 1623 act that the first limitation periods were set for tort actions,[19] and, for example, contractual suits in which there was a sealed deed were excluded. No general limitation was placed on the bringing of criminal proceedings.[20]

 

The thirty to sixty year periods fixed in 1540 appear comparatively long, but were a considerable reduction from the effective limitation period in the years immediately preceding the act.[21] Adjustments were made in an act of 1623-4,[22] revising some periods downwards, beginning a trend which has continued into modern times.

 

It was clear from the start that fixed limitation periods would be a problem for those labouring under some disability in person or at law, and efforts were made to minimise unfair disadvantage in such cases. The statutes therefore included provisions allowing extra time for those in such a position: initially covering those under the age of majority, married women, those in prison or outside England, and in 1623 extended to cover those who were non compos mentis.[23] Other matters of detail and interpretation were worked out in supplementary statutes or in common law cases,[24] and the Chancery and ecclesiastical courts elaborated their own parallel doctrines in the limitation area.[25]

 

III: More recent history

From the nineteenth century to the present, both statute and case law made adjustments to the law on limitation.[26] The related laches principle continued to develop in the nineteenth century court of Chancery,[27] and, since the merger of common law and equitable jurisdictions in 1873-5, became available in all courts.[28]

The Chancery had long taken notice of the statutory limitation regime – applying limitation periods in connection with actions against trustees, by analogy with statutory provisions.[29] The subject of limitation began to attract treatise writers in the nineteenth century, examining statutes and case law, and sometimes comparing the situation in other jurisdictions.[30]

 

The trends in statutory limitation have been towards simplification (reduction of numbers of categories – in line with the common law’s general move away from the dominance of forms of action); increase in the scope of the limitation rules,[31] reduction of the length of the limitation period and some erosion of the principle that time does not run against the crown.[32] England and Wales, unlike some other legal systems, have not embraced general principles of limitation with relation to criminal prosecutions.[33]

 

The matter has not often formed part of undergraduate law studies, with the exception of consideration of adverse possession and limitation in the context of land. It has, however, remained a crucial topic for practitioners and litigants, and has been considered by bodies dedicated to reform and rationalisation of the law on a number of occasions, from the 1820s onwards.[34]

 

IV: Conclusion

Limitation of actions, then, is an ancient idea. The history of limitation in England and Wales shows a range of different justifications for it and a range of techniques for achieving what is regarded as a fair limitation period in different types of case. It is clear that ideas of appropriate temporal limitation of actions – and which actions should be so limited, and who should and should not be subject to such limitations – has varied considerably over time, and no doubt the rules will continue to evolve with economic and political conditions.

 

 

 

[1] See, e.g., P. du Plessis, Borkowski’s Textbook on Roman Law 4 ed, 76-7, 167;  Dig. 41.3.1; A.M. Prichard, ‘Early usucapio’ (1974) 90 LQR 234-45; R.W. Lee, The Elements of Roman Law 4 ed 1956, 125.

[2] YB Trin. 34 Hen. VI, pl. 27; Bl. Comm. bk III c. 10.  A’Court v Cross [1825] 3 Bing. 329 at pp. 332, 333;  Board of Trade v Cayset, Irvine & Co. Ltd [1927] AC 610 at p. 628; Thomson v Eastwood (1877) 2 App Cas 215, 248; Mountstephen v Brooke 3 B & Ald. 147 106 ER 614; Cholmondeley v Clinton (1920) 2 Jac & W 1, affirmed 4 Bligh 1, 130 ER 540; Doe d Duroure v Jones (1791) 4 TR 300, 308; 100 ER 1031.

[3] See. e.g., H.J. Stephen et al., Mr Serjeant Stephen’s New Commentaries on the Laws of England, , 14th ed., 1903), 541.

[4] Law Commission Consultation Paper no. 151, 1.27; Thomson v Eastwood (1877) 2 App Cas 215, 248-9.

[5] See. e.g., Cholmonderlet v Clinton (1820) 2 Jac & W 139, 37 ER 527, 577; H.J. Stephen et al., Mr Serjeant Stephen’s New Commentaries on the Laws of England, , 14th ed., 1903), 541. Note also contrary views, condemning the idea of limitation of actions, Reeves v Butcher [1891] 2 QB 509. but that, while there are certainly live debates about the detail of limitation periods and their application, the idea that there should be limitation to at least some legal actions is entrenched in the law of England and Wales.

[6] W. Blackstone, Commentaries on the Laws of England (Oxford, 1765-9) four volumes, vol. II, book III, ch 10  p.189; Thomson v Eastwood (1877) 2 App Cas 215, 248 per Lord Hatherley; Mountstephen v Brooke 3 B & Ald. 147 106 ER 614, per Abbott CJ.

[7] P & M II, 51, 81. See, e.g.; the statute of Merton cc.8, 9, statute of Westminster I c. 39 in Statutes of the Realm I, pp. 3, 36. Note that, even before intervention by statute, certain land actions required that action should not be delayed too long. In particular, the action of novel disseisin implied that the claimant had been dispossessed ‘recently’. P & M II, p. 51; Glanvill xiii, 32, 33. Co. 1 Inst. 153.

[8] The practice of dating by association with other events made sense in a less reliably documented world, and was a characteristic practice in medieval law, also seen, for example, in assessments of the age of minor heirs in inquisitions post mortem.

[9] W. Blackstone, Commentaries on the Laws of England (Oxford, 1765-9) four volumes, vol. II, book III, ch 10  p.189. Note however, that the popularity of novel disseisin, which Blackstone was discussing, was in decline from the later medieval period, (see, e.g., W.S. Holdsworth, History of English Law IV, 484) and that limitation statutes did not cover many other important common law forms of action. The position may, therefore, have been somewhat less ‘absurd’ than he thought.

[10] See, e.g., J.H. Baker, Introduction to English Legal History 4th edn (London, 2002), 470-1; P & M  1 p. 425; YB 6 Edw. II Quo Warranto pl. 5 and pl. 6.

[11] See, on debt and trespass, Baker, Introduction, 326, 345, 401. S.F.C. Milsom 77 LQR at 264; Martell’s Case (1382) YB M 6 Ric II pl 33, per Belknap CJ; and on actions for seisin of land when the defendant died and was succeeded by an heir: Littleton’s Tenures, 421 ff.

[12] See, e.g., G.D.G. Hall (ed.), The Treatise on the Laws and Customs of England commonly called Glanvill, book 1, c.6; statute of Westminster I (1275) c. 13.

[13] Prior of Launde’s case (1285), P.A. Brand, The Earliest English Law Reports vol. II (London, 1996), 205-9.

[14] Bl. Comm. vol. II, book III, ch 10,  p.189.

[15] 32 H VIII, c. 2 (1540); Statutes of the Realm III, 747. There had been an attempt at something similar in 1529, though this was part of a set of proposals which failed due to parliamentary opposition: W.S. Holdsworth, History of English Law vol. IV 451, 484, 572-4. Note that the statutes’ strategy was to bar the action, rather than the right: Bevil’s Case (1573) Co. Rep. at ff. 11b, 12a. Wainford v Barker (1698) 1 Ld Raym 232.

[16] Its promulgation at that time is likely to have been connected to the upheaval and uncertainty caused by the 1535-40 attempts by Henry VIII to enforce royal claims to feudal revenue by rendering wills of land held to uses (on trust) first totally and then partially invalid. Baker, Oxford History of the Laws of England vol. VI, p. 725 notes that some lawyers were expressing views that this was something which should be reformed.

[17] The early concentration on land actions can be explained, first, by the common law’s particular concern with land law, and, secondly, by the room for genuine doubt as to title to land in a system with surprisingly few formalities for acquisition. In this context, refusing to go too far back into the history of the tenure of a particular piece of land meant that there was a reasonable chance of producing oral testimony if documentary evidence were absent or unsatisfactory.

[18] The statute did not, for example, apply to advowsons and wardships: st. 1 Mar. (1553) session 2 c.5. It did not apply to writs of formedon nor actions involving rights of entry: Holdsworth, History of English Law, 484; 1623 act s.1.It did not apply to the king – only in c.2 of the Jacobean statute was the royal right included, and then a period of sixty years was deemed appropriate.

[19] Significant areas were still not covered by the limitation legislation: see Civil Procedure Act 1833.

[20] This was, in part, explained by the maxim nullum tempus occurrit regi (Co Litt 90b: no time runs against the king), though, given the ‘private’ nature of many prosecutions, this is not a full explanation. There were, however, limitations on some prosecutions from the Tudor period: Holdsworth, History of English Law IV, 499, 525; st.7 Henry 8 c.3, st. 31 Eliz c 5. In addition, many early modern statutes, particularly those dealing with (private) criminal prosecutions, included a specific limitation period.

[21] 32 H VIII, c. 2 (1540); J.H. Baker, Oxford History of the Laws of England vol. VI, p. 725

[22] 21 Jac. 1 c. 16 (1624); Statutes of the Realm IV, 1222; W. Ballantine, A Treatise on the statute of Limitations (21 Jac. I c. 16., (1810)

[23] Section 2 of the 1623 act added those who were non compos mentis to the list of those regarded as having disabilities. Ideas about persons and disability have evolved and other circumstances have had to be taken into account – see, e.g., Limitation (Enemies and War Prisoners) Act 1945.

[24] See, e.g. Anon (1552) Brooke Abr., s.v. ‘Limitations’ pl 2; Prideaux v Webber (1661) 1 Lev. 3; Hyleing v Hastings (1699) 1 Ld Raym 389.

[25] See, e.g. R.H. Helmholz (ed.),Three Civilian Notebooks 1580-1640, Selden Society vol. 27 (2010)., 64, 95, 101, 108; R.H. Helmholz, Oxford History of the Laws of England vol. I, 570, 584-5; W.H. Bryson (ed.), Cases Concerning Equity and the Courts of Equity 1550-1660 vol 2, Selden Society 118 (2001), no. 207, Randall v Tyrney (1612); D.E.C. Yale (ed.), Nottingham’s Chancery Cases (1954, 1961-2) Selden Society 73 and 79, xcv, 448, xcvii, 505; Holdsworth, History of English Law V, 329 Blackwell v Simpson (1582-3) Choyce cases 163; Clench v Tomley (1603) Cary 23; Porter v Pretty (1604) 1 Choyce cases 105-6; Sedgwick v Evan (1582-3 Choyce Cases 167] Sibson v Fletcher (1632-3) 1 Ch Rep 59, 60; Hales v Hales (1636-7) ibid. 105. Garford v Humble (1628) Tothill 26; Moyle v Lord Roberts (1629-30) Nels. 9, 10;.Smith v Clay (1767) 3 Bro CC 639; Pickering v Lord Stambrod (1793) 2 Ves 272 at 280.

[26] See, in particular: Civil Procedure Act 1833, Real Property Limitation Acts 1833 and 1874, Limitation Act 1939, Law Reform (Limitation of Actions) Act 1954, Law Reform Miscellaneous Provisions Act 1971, Limitation Act 1975, Limitation Act 1980. Courts of Chancery worked out the applicability of statutes of limitation in their jurisdiction – see, e.g., Foley v Hill (1844) 1 Phil 399.

[27] Holdsworth, History of English Law V, 329. See also, e.g., Cox v Morgan (1801) 2 Bos and P 368 at 412; Marquis of Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 140; Rochdale Canal Co v King (1851) 2 Sim NS 78 at 89; Penny v Allen (1857) 7 De GM & G 409 at 426; Archbold v Scully (1861) 9 HL Cases 360 at 383; Lindsay Petroleum Oil Co v Hurd (1874) LR 5 PC 221 at 239; Re Baker, Collins v Rhodes, Re Seaman, Rhodes v Wish (1881) 20 ChD 230, CA; Re Maddever, Three Towns Banking Co v Maddever (1884) 27 ChD 523, CA.

[28] Judicature Acts 1873-5, 36 & 37 Vict. c. 66 and 38 and 39 Vict. c. 77; Holdsworth, History of English Law XVI, 165; J.E. Martin (ed.), Hanbury and Martin Modern Equity 19th edn 2012, p. 717, Knox v Gye (1872) 5 App Cas 656 at 674; Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-41 Re Sharpe [1892] 1 Ch 154 at 168; Weld v Petre [1929] 1 Ch 33 at 51, 52; Re Pauling’s ST [1964] Ch 154 at 168; Alec Lobb (Garages) Ltd v Total Oil GB Ltd [1985] 1 WLR 173.. Laches retained under Limitation Act 1980 s36(2).

[29] Knox v Gye (1872) 5 App Cas 656 at 674. Claims against express trustees became subject to statutory limitation in 1833 (Real Property Limitation Act 1833 s. 25) and those against trustees under implied or constructive trusts became subject to limitation in the Trustee Act 1888.

[30] See, in particular, J.J. Wilkinson, A Treatise on the Limitation of Actions as affecting Mercantile and other Contracts (London, 1829); W, Blanshard, A Treatise on the Law of Limitation (London, 1833), G.B. Mansel, A Treatise on the Law of Limitation (London, 1839), H.T. Banning, A Concise Treatise on the Statute Law of the Limitation of Actions (London, 1877); L.M. Lightwood, The Time Limit on Actions (London, 1909).

[31] For example in the field of debts backed up by a bond or ‘specialty’ was given a limitation period in the Civil Procedure Act 1833.

[32] See, e.g. G. Sharp, A Short tract concerning the doctrine of nullum tempus occurit regi (London, 1779). Nullum Tempus Act, 9 Geo. III c. 16 s 1.J. Chitty, A Treatise on the Law of the Prerogatives of the Crown (London, 1820),  379-80, Holdsworth, History of English Law X, 355

[33] See Note,‘ The statute of limitations in criminal law: a penetrable barrier to prosecution’, University of Pennsylvania Law Review 102 (1954) 630-54; Archbold 2013 ed 1-270; 4-74.

[34] Real Property Commissioners, First Report,  Parliamentary Papers vol. X(1829); Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (1936); Law Reform Committee Twenty First Report (Final Report on Limitation of Actions) 1977) Cmnd 6923; Law Commission Consultation Paper no. 151, Limitation of Actions (1998); Law Com. no 270, Limitation of Actions (not taken forward by the government); N.H. Andrews, ‘Reform of the limitation of actions: the quest for sound policy’, CLJ 57 (1998) 589-610. Note the interesting suggestions concerning moving away from an ‘all or nothing’ to an ‘incremental’ approach to limitation which is described in A.J. Wistrich, ‘Procrastination, deadlines and statutes of limitation’ William and Mary Law Review 50 (2008) 607.

Image: a fence – sort of limit, innit? Photo by Markus Spiske on Unsplash

Ending on a high note? The travails of conclusion-writing

It seems to be a time of difficult endings: last day of July, last day of the academic year and I am currently having a bit of a struggle to conclude a paper. This may well reveal some underlying problem with the paper’s themes or the way I set up the question it was going to address, but it is at least as much a result of the fact that (deep breath) I don’t really know what I want from a conclusion.

I have tried thinking about it from various points of view, comparing the conclusion of an academic article to the end of a race (Olympics are on), the landing of a flight, the last group confrontation scene of a detective novel, but none of that quite fits or helps. Perhaps it is an idea to think about it in musical terms, with the conclusion as a sort of cadence. In my far-off youth, I went through the hoops of the Associated Board exams and A level music, so picked up some basic harmony, including the main different ways in which a piece of music might come to an end, with a perfect, plagal, imperfect or interrupted cadence. I also listened to a wide range of less classical music, good bad and indifferent, and formed some ideas about what I liked and didn’t like in an ending. How would some of these musical conclusions map on to academic papers I have written, read or heard?

The perfect cadence

I suppose this is what I aspire to, instinctively, in a paper: the definite ‘here it is, all tied up in a bow and aren’t I clever’ of cadences. V to I, from the dominant to the tonic; here’s my evidence, this is the brand new thing I draw from it, and you have to agree with me. In reality, few academic papers have a perfect cadence, and it may well be beyond me.

 

The plagal cadence

This is still quite a definite conclusion, but perhaps on a smaller point, and perhaps with less of a claim to field-redefining originality. It is the ‘Amen’ cadence, after all, with all of the orthodoxy that that implies; IV to I – subdominant to tonic. Maybe I have done a few of these over the years. Might just about get there with current paper.

 

The imperfect cadence

I to V, with a strong sense of incompleteness. Is that a good thing or a bad thing in an academic paper? I think it can work, if is ‘owned’, i.e. the conclusion calls itself ‘concluding thoughts’ and makes a point of saying that this is leaving some thoughts for others to build on, or for the author to come back to in future, but it can also be a bit weak and unsatisfying.

The interrupted cadence

V-VI and flipping between major and minor (in either direction). Hmm. I think this could work in an oral paper, in the hands of somebody very self-confident and where the paper was on a specific point but then drew back to make a few comments about a wider field. Could definitely look bad on paper (and attract the condescension of Reviewer 2) if it was an unexpected move within the same specific area, with no lead up in the preceding sections of the composition.

The fade-out

This is the one to avoid most of all – though I think I probably did it quite a lot in oral presentations in the first 10 years of my career. I shudder to think of all of those papers ending with a limp ‘I think I’ll leave it at that’ or similar, rather than a nice, planned out, pithy last sentence. It was often the result of having too many points, and just hoping that I could work out, live, which to keep and which to skip over. The end result was something like one of those deeply unsatisfying old pop tunes that doesn’t conclude at all, the sound engineers just turn down the volume until it ends (‘Hey Jude’, amongst others – wouldn’t that have been better with a proper finish, and minus about three minutes?).

It’s not a perfect analogy, of course, but maybe it’s something to bear in mind in attempting to craft a satisfying ending to this latest paper.

Which I should be getting on with …

Though, actually, isn’t a well-crafted conclusion more like the end of a limerick, or a sonnet … but which kind of sonnet … ah, needs more thought. Can’t possibly write that conclusion until I get that straight …

 

GS

31/7/2021

 

Photo by Tadas Mikuckis on Unsplash

Names and associations: when ‘great men’ turn out not to be so great

The latest New Law Journal includes a story with some interest for legal historians, discussing the re-naming of a set of barristers’ chambers – from ‘Hardwicke Chambers’ (after Philip Yorke, Lord Hardwicke, 1690-1764) to ‘Gatehouse Chambers’, with the heading ‘Rebranding the past―when historical ideals fall short of modern values’.

In the aftermath of the Black Lives Matter protests and (in a Bristol context) the toppling of the Colston statue, no doubt many professions and businesses are considering their overt and more subtle links with the offences of the past. One of the things which strikes me about much of the discussion around this issue of commemoration is the fact that it often falls into a binary – ‘the past’ and ‘modern times’. As many good studies of the Colston issue (not to mention US Confederate statues) have shown, however, there is often a rather more complex timeline than that. with an important stage between the life of the now-controversial character and the present day, an era in which there was a move to highlight, or make use of, a figure of the past. Thus, the Colston statue was put up not in the old slaver’s own day, but in the heyday of Victorian imperialism. In a sense, naming modern legal institutions after ‘great legal men’ of the past has something in common with this tendency. The NLJ article more or less makes this point. The attempt to dredge up some historical figure to associate with one’s present day enterprise is both unimaginative and questionable. There is always the chance that the historical figure will turn out to have said or done something dubious, and there is also the issue of whether it is fair to borrow the image of people from the past without their approval – see also the feeble nonsense of ‘Nightingale Hospitals’ and ‘Nightingale Courts’ (at one point it was suggested that these might be called ‘Blackstoen Courts’ too …). Apart from anything else, it all tends to reinforce the ‘great men and the occasional carefully selected great woman’ view of history. Let’s just not, eh?

Though the article was not what I feared, on seeing the title, (was steeling myself for something along the lines of ‘political woke virtue correctness gone mad signalling TM Daily Mail’)  it does have its faults. It is irksome to see a certain lack of concern about the contemporary correctness of the objectionable Talbot-Yorke opinion, and there are some inappropriate choices of language here – it would be wise to avoid ‘slaves’ and ‘slavery’, which  are now rapidly falling into disuse, amongst people who see their effect in rendering matter-of fact the subjugation of certain sections of humanity. In addition,  in the context of the enslavement of Africans, discussing ‘branding’ – the marking of livestock, or people, as chattels, by the imposition of hot metal, is, surely, well beyond infelicitous.

GS

17/7/2021

Image: the ‘great man’ himself, c/o Wikimedia Commons.

Plinth photo

Just a quick posting of the current state of the Colston plinth, a year on from the dramatic toppling. I am beginning to get used to it, as I pass it on my regular ‘obey the bossy watch’ circuit. Those not-at-all-mammalian ‘dolphins’ are incredibly ugly, mind you …

GS

10/7/2021

Semen and semantics – considering legal metaphors[i]

A little reading this morning on law and metaphor, as I think about the paper I need to write for the SLS conference in September,[ii] which is going to look at bastardy, legitimacy and law/legal methods (a bit more on it here). Not surprisingly, others – lawyers and legal academics – have considered the issue of metaphorical talk in law, though, luckily, not the precise issue I mean to discuss.

Metaphor is an important theme for those of us interested in the history of women and law – especially in relation to coverture, so it is something which has been on my mind quite a bit in recent years. The bastardy angle is slightly different though – I want to think a little more expansively about the links between some of the problematic metaphors and expressions used in relation to bastardy and legitimacy (especially the ‘born within the four seas’ tag, in relation to adulterine bastardy,  but others too) and the process of ‘legitimate’ legal development, considering metaphors of (male POV) reproduction (and its impossibility), ‘father figures’ in law and legal history.[iii] In 20 minutes. Will it work, or will I end up getting too far into areas (language, jurisprudence) of which I know very little? We shall see.

My general reading so far has highlighted the sheer number of doctrinal tests which ‘get metaphorical’ – in all areas, but perhaps especially on the ‘civil’ side). Writings highlight their utility or problems, but there is probably quite a lot to say about their use as display within the legal profession and to/by its academic associates.

One thing I have noticed in my reading up to now is the difficulty people seem to find in writing about legal metaphor without using metaphors in that discussion itself. For example, this one at 257 states that  ‘[l]egal discourse is pregnant with metaphor., ’[iv]  this one (at p. 8) discusses metaphors ‘taking root’ in legal and other language, while this one, is generally wary of legal metaphors, but can’t resist (at 19) referring to a ‘seminal judgment’. That last one is a term I dislike – I know that semen-seminal could be interpreted generally, as ‘seed’/seedy (OK, I know, ‘seed-related’), but let’s be honest, sunflower seeds are not the first sort of seed that comes into anyone’s head in relation to those words. (And quite apart from the gendered sperminess of it, it has a rather uncritical aspect to it, justifying the process of legal development as somehow inevitable).[v] I certainly need to do some more thinking about how the apparently morally-neutral biological idea of the ‘seminal’ judgment relates to the morally-inflected legitimate procreation metaphors seen in some other places.

(And a final random thought – what would we call an ‘Ockham’s Razor’ for metaphors?).

GS

7/6/2021

[i] (I know – tabloidy title: never claimed to be classy …)

[ii] (seems a long way off but I already know I am going to have a large batch of marking in August, and, well, a break after the current lot might be quite nice/necessary if I am not going to collapse)

[iii] Thinking about this now, the main rivals to the fatherhood metaphor for legitimate legal development are probably that of botanical growth, that of rivers  and that of orthodoxy/heresy. Also n.b. the absolute ‘metaphor bingo line’ would be refs to fatherhood + ‘seminal’ + legitimacy.

[iv] Ah – takes me back to the ‘negative pregnant’ in medieval pleading …

[v] Maybe it’s compound metaphor as well, since presumably semen came to be used for … well … semen … before the motility of sperm was observed (otherwise, clearly, the people who choose words would have gone with something a bit more tadpoley). I can see I have work to do …

Photo by Erik van Anholt on Unsplash

Legitimate distraction

In today’s between-marking interludes, doing a case-search for something I am writing on ‘bastardy’. This keeps turning up 19th C cases with Bastard as a surname (Polden v Bastard; Nicolls v. Bastard…). Would have thought that would be a pretty mortifying surname in the days of Dickens and Wilkie Collins, with all of their illegitimacy-related plots, and all of the very real legal implications and social stigma of ‘bastardy’. Seems odd that it was not jettisoned. (Is it still with us? Can’t say I have ever been introduced to a Mr Bastard, Ms Bastard or Professor Bastard).

(Top prize for the most Blackaddery sounding ones, though, must go to some earlier examples – so we have Bastard, Administrator of Bastard, who was Executor of Bastard v [disappointingly not Bastard, but] Jutsham 94 E.R. 996 1 Jan 1738  Barnes 444 | [1738], and the simple but classic Bastard v. Bastard 89 ER 807| (1690) 2 Show. K.B. 81.)

GS

6/5/2021

Image: Wikimedia Commons.

(PS Fans of the author, Mr Collins, ought to have an information site about him called Wilkiepedia, oughtn’t they? Maybe they do.)

Between cause and effect: the length of lingering deaths

There is an interesting (if, obviously, horrible) local murder case in the press today, for anyone looking at the issue of causation, and the potential time-gap between offending action and death, which action may still be amenable to prosecution as homicide. Rather than simply being a matter of later discovery of, and prosecution of, a murder, the death of Jacqueline Kirk was relatively recent (2019), but the criminal action being assigned as its cause (setting her on fire) occurred 21 years before that. This leapt out at me today, quite apart from its horror and human interest, as connecting to an academic interest which I have long had in ideas about causation of death, and the issues surrounding ascribing criminal culpability in cases of ‘lingering death’, in so far as we can gather them from medieval legal records – and on which I plan to work in 2021-2. There are differences, of course, in that there can now be considerably greater certainty about factual causation than would have been the case in the ‘premodern world’, but causation in the law of homicide is never just a matter of fact, but mixes in all sorts of judgments about blame and appropriateness of bringing belated legal proceedings, so this recent case, and the discussion which it will no doubt encourage, will be an interesting lens through which to examine my material (though I have to say that, while there are certainly some very belated prosecutions, I have not found any attempts to argue for a ‘lingering death homicide’ of anything like this length, in older materials – no doubt to a great extent because people subjected to serious violence such as being set on fire would be unlikely to survive long, without modern medical interventions, but there are fascinating changes in ideas about the moral/legal aspects of causation to track as well).

GS

5/6/2021

Image (and yes I know this is not the court where the accused appeared yesterday, but the new one is a bit ugly: also good to see a statue in Bristol which is not obviously in need of a toppling): Stone statue of Justice by Edward Sheppard, the old Magistrates Court, Bridewell St., Bristol, dated 1879