Category Archives: General Rambles

Priors, Promises and the Proper Observation of Old Books

[May 2024: I am currently revising and revamping this for a paper at the SLS conference in September, so there is more to come. Bet you can’t wait!)



As a Land Law teacher with a research interest in medieval legal history, I am always interested to see the two parts of my academic world coming together. Sometimes this can be frustrating, when lawyers, judges or others misrepresent the law of the past, or throw around ‘medieval’ and ‘feudal’ in an inaccurate fashion (see the sniffy references by Laws LJ to ‘medieval chains’ in Manchester Airport plc v Dutton [2000] QB 133, at 148A – while in fact describing actions which were around far later than  the medieval period – and the many references to rapacious practices with regard to ground rents and service charges on long leaseholds as ‘feudal’, which they aren’t). I also get exercised by the practice of relying on partial evidence about an old case, by citing a Year Book (medieval to ‘early early modern’ law report) without cross-referencing with the relevant plea roll (official record). Traditionally, doing a proper job of tracing the plea roll entries would have been massively time consuming, but, although it is still not easy, the advent of digitisation of many legal records (especially by the Anglo-American Legal Tradition project) has certainly speeded up the process.

Why bother? Well, it is always good to have as much information as possible about a case, if it is to be cited, and the record can fill in details of procedure and pleading not fully noted in reports. The main thing, though, is that law reports of the past, and especially the deep, medieval past, were not like modern law reports, and treating them as if they are just like something from modern reports, or indeed modern published judgments, is something of a distortion. We may find, for example, that what is relied upon as authority for a proposition of law was actually rather less definitive than would appear. The charm and frustration of early reports is that reporters were often more interested in noting lines of argument, and opinion, than in giving a clear ‘ratio’, (and frequently do not tell us what was the outcome of a case). If at all possible, then, it seems sensible to try to find both record and report, where these exist.

And so to the case I wanted to discuss. It is one which is frequently cited in texts on a tricksy part of Land Law: (freehold) covenants. I was first introduced to it as a second year undergraduate student, when our textbook referred to it in semi-anonymous terms as The Prior’s Case (1368). Clearly a proto-medieval-legal-historian even then, I wanted to know more, but nobody seemed to be able to tell me anything about it. I was given the strong steer that there was no need to ask questions. I did get as far as tracking it down in the printed Year Books, but struggled at that stage both with the black-letter printing and, of course, with the Law-French and peppering of Latin. I did learn something though – a truth about history and the doctrine of precedent in English law: people cite things they haven’t read; which they couldn’t have read. It was rather unsettling.

Now, years later, when I have got to grips with the old languages and scripts of the law, and learned a thing or two about modern lawyers and judges as well, I can take it all a bit further.  As ever with historical study, one notes that some things change, and others stay the same. I checked the Year Book report once more (with the aid of the extremely useful Seipp’s Abridgement) and then tracked down the plea roll entry relating to the case. You can see the YB report here {Seipp 1368.013; YB 42 Edw. III f. 3 pl. 14) and the plea roll entry is at CP 40/430 m. 60.

(I should say that I do not claim to be the first legal historian to have found this – there is some distinguished American scholarship on this, though somehow, English courts and lawyers seem to have been less interested in such academic study. There may be something to think about here for legal historians in England – is the fact that there is some … questionable … legal history in legal practice down to lawyers alone, or is there a certain exclusive insularity which has not exactly welcomed in the wider world? … One to ponder …)

Anyway, what do these tell us, and does it add to, or alter, the conventional modern English view of the case? Well, the first thing to note is that the names of the parties have become woefully garbled over the centuries. The printed YB version of events has it as Laurence Pakenham v. a prior (anonymous), and it is as Laurence, or Lawrence, Pakenham’s case that Coke cites it: Co. Litt. 385a. In fact, the plea roll shows that the case was not brought by a man with a surname tying him to Suffolk, but was, in fact brought by Laurence de Pabenham. This Laurence was a man with ties to Bedfordshire and Northamptonshire, Pabenham (now Pavenham) being in the former county. Now, a b and a k can be hard to distinguish in certain scripts, so some slippage here is not massively surprising. An additional garbling crept in, however, at some point, renaming the case ‘The Prior of Packenham’s Case’.[i] This might seem like a small thing, but its mixing up of plaintiff and defendant means that it  is not a version of the case name which would have been given by anyone who had actually gone and had a look at either the YB report, or the passage from Coke’s First Institute, which is usually cited with it. It is all rather indicative of (a) sloppiness; and (b) a casual attitude towards the truth. Alternative facts, anyone? I would certainly not be impressed by one of my students citing – and therefore claiming to have read – something which they clearly had not read. It reminds me a little of some of the nonsensical footnotes which give away the more inept Chat GPT user.

The plea roll tells us that the defendant prior and convent were from Canons Ashby (Essebi) in Northamptonshire. This was a house of Augustinian canons. The manor to which the covenant was attached was Hinwick),[ii] and Laurence claimed that the covenant was an old one – made with his great grandfather, Hugh, by the prior and convent of Canons Ashby back in the reign of Henry III (14 Henry III, which was a LONG time before – by indenture, formalities fans – wouldn’t it be great to find that, to understand the detail of the deal?). The covenant allegedly laid down that the canons should be singing three times per week in the chapel of Hinwick, in perpetuity. Laurence claimed, further, that, though they had massed away for almost a hundred years, they had not done it for twenty years, and he had not been able to get the prior and convent to keep the covenant. Just why the canons were holding out against keeping the bargain, who knows. I imagine it might be a bit of a pain. Laurence claimed 40 l damages for their failure, anyway.

All very interesting, and serving to highlight some of the changes between the PR and YB versions, but what about the past/present question – does the case, in either version, unequivocally stand for the proposition(s) for which it is now cited?

How is it now used? We can see a modern citation of The Prior’s Case in Bath Rugby v Greenwood and others [2021] EWCA Civ 1927,[iii] Nugee LJ, at 37, referred to it as an ‘example of noticeable antiquity’, and quoted Clauson J, in In Re Ballard’s Conveyance,[iv] who was, in turn, coming at The Prior’s Case through Coke in Spencer’s case (1585),[v] was a case which might bear further scrutiny in terms of its accuracy and relevance.  Anyway, the Spencer version of the point of the case is given as follows:

 The Prior’s case was one where the prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said.

Nugee (38) thought that it was fairly obvious that the benefit would be annexed in this sort of case because it is ‘usually obvious which land such a covenant benefits … a covenant to sing for the lord of the manor in the chapel of the manor benefits the lord of the manor as owner of the manor,..’ There is probably scope for interrogating that sort of benefit, but let’s leave it at that. It is about passing of benefit of covenants, including positive covenants, by annexation to land/property rights.[vi] The Prior’s Case is also used as authority for the idea that there is no need for a servient tenement, in covenants, unlike easements.[vii]

The case itself was a little less clear cut. It featured quite a lot of argument as to whether Laurence had made a fatal error by claiming as the heir of Hugh. The thing was that there was another person who seemed to have a better claim to be Hugh’s heir – a young girl called Margaret, a minor, who was descended from Hugh via a senior branch to that from which Laurence sprang. (In the YB, Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother: interesting in its effacing of females, but ultimately not crucial to the legal argument). The prior’s side made a lot of this in argument. Laurence and his lawyers tried to get around this by basing his argument on his land rights: he was tenant in tail of the land to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this. Both YB and plea roll suggest that the court found the answer far from obvious, and it was repeatedly delayed, and adjourned.[viii] Coke seems to have skated over that aspect of things, and stated that there was a straightforward finding for Laurence, and so a decision that the covenant was annexed to the manor, so that it could be enforced by Laurence, as the person holding it.

The YB suggests that things were going in Laurence’s favour, but I have not yet turned up a final decision, and I am not sure that we can take it on trust from Coke that there was a definite decision that looks like annexation of the benefit to land (let alone to an estate) prevailing. As is often the case, Coke may have tidied things up rather, bringing an older legal world within the norms of his own day, and effectively making substantive rules out of a dispute about pleading. This passage rather sums up his approach:

Observe reader your old books, for they are the fountains out of which these resolutions issue, but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them’.. [ix]

Even taking this as a definite judgment, it is very much something to which some context would need to be added and questions asked. There is at least potentially something of a mismatch between the idea of the attachment of a benefit to a manor and attaching it to land, or an ‘ordinary’ estate in land.

So, long story short, I am not sure The Prior’s Case quite stands for the straightforward proposition for which it tends to be used, and there is room for improvement in the way in which lawyers use old cases in new cases and practitioner texts. It strikes me as interesting that legal practice has created its own rewritten versions of the past, for use in modern law. Who would have thought that stereotypically pompous and conservative lawyers would actually be happy working in a post-truth environment? Aside from the questionable implied claims to scholarship and a basis in authority which are embodied in garbled citations of this case, there is something decidedly odd about purporting to respect precedent whilst not actually making an effort to look up records or reports. To the extent that all of this suggests an idea of historical scholarship, it is the historical scholarship of several generations ago, with its passing acquaintance with documentary sources and its reliance on the words of great men (Coke, Blackstone, others, but mostly Coke).



[DRAFT: DO NOT CITE WITHOUT PERMISSION; This is a ‘work in progress’ and the search for the end of the case goes on!]

Update, 7/12/2023

Two more things:

  1. the case is mentioned in Simpson. As Pakenham’s Case (with YB ref) and there is an explanation of the extension of the running of the benefit of covenants in land, beyond basic warranties, in this case.[i] It rather assumes – perhaps because of the date of the case, that this was about a post-1290 arrangement, but that is not what the plea roll implies.
  2. I am still waiting for a chance to check the plea rolls thoroughly, but there is a hint in a secondary work that the case was not in fact simply decided in favour of Laurence, as modern accounts assume. Now, I confess that I have not yet managed to get to the British Library to check out the manuscript cartulary (see how easy it is to admit that!), but it looks very much as if there was a settlement, with Laurence agreeing to pay the canons for their services: see G. Baker, History and Antiquities of the County of Northampton  2 vols (London, 1822), II, 10, citing Ashby Cartulary in possession of R Orlebar esq of Henwick co Bedford, fo. 204. This is MS Egerton 3033. I have now seen this (following a delay because of the difficulties at the library this year) and will bring this into the SLS paper.  

[i] A.W.B. Simpson, A History of Land Law, 2nd ed. (London 1986), 116-18.

Image: This, I think is the church in question. Note absence of singing canons. Proves my point, I think.


[i]  Preston & Newsom: Restrictive Covenants Affecting Freehold Land, eleventh edn (London: Sweet & Maxwell, 2020), Table of Cases and 1-023.

[ii] Inquisition Post Mortem of Laurence’s father, with the right lands. Inquisitions Post Mortem, Edward III, File 78 | British History Online (

[iii] This case involved rugby rather than singing masses. (I will hold back from making points about the similarity between religion and sport, sport as the modern Opium des Volkes, etc., though I may just be thinking it). Basic issue: did a covenant from 1922 against particular commercial uses mean that Bath Rugby (Club) could not develop the land in question as they wished, to which the answer would be yes, if the benefit of the covenant had been annexed to identifiable land.

Covenants superfans will note at once that, because of the date, there was no tangling with s. 78(1) LPA 1925 or the top fun which is the case of  Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594. If you know, you know.

In the end, the answer was that the land was not identified precisely enough, so the covenant did not work to stop the development.

[iv] [1937] 1 Ch 473 at 482.

[v] 5 Co Rep 17 b

NB – Spencer’s case is about the passing of the burden: Ps are original lessors, so not passing of benefit.

[vii] L. Turano, Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conv. 2000 Sep/Oct, 377-97, 379; Megarry, Robert, William Wade, Stuart Bridge, Elizabeth Cooke, and Martin Dixon. 2019. The Law of Real Property Ninth ed. London: Sweet & Maxwell, 31-014. ‘in an old case a Prior covenanted with the lord of the manor that he and his convent would sing divine service in the chapel of the manor. It was held that the lord’s successors in title could sue the Prior for non-performance.’

[ix] Co Rep at 17b, p 76.

Written on the bodice: judicial scorn for, and salivation over, the secrets of women

The Western Mail, 14th August 1899 carried a story which says much about the press and the legal profession of the period. The account of a relatively small-value case in the county court at Cardiff bears the headline ‘Judge Owen and the ill-fitting bodice’. This manages, by juxtaposing a (male) judge and clothing assigned feminine, and fairly intimately feminine at that, to provide a certain amount of transgressive titillation. There is more excitement at the sub-heading, ‘Cardiff high bailiff called in as expert’ – another man, of course, and why, we are supposed to wonder, is he an expert: a certain fondness for ‘the ladies’, or further suggestion of gender transgression?

We are left in no doubt at the reporter’s view of the whole thing as a joke by the opening of the report itself: ‘Nothing in the county-court is productive of so much fun as a case in which the parties are a lady dressmaker and customer, and the subject of litigation an alleged ill-fitting dress.’ Ho ho: ‘the ladies’ – what are they like? Squabbling about dresses, indeed! The reporter certainly seems to enjoy himself, reporting the banter of the judge – Judge Owen, a favourite of the Welsh press of the time – and other men in court especially the high bailiff, whose view of the work on the dress in question is requested, the judge claiming ignorance of such things. While a modern reader would not (I would hope) be as impressed with the clubby misogyny and trivialisation of women which the case reportedly embodied (or embodiced?), one aspect of the banter is of some legal historical relevance: when the case requires him to decide on the quality of the dress, the judge drew laughter from those present in court by saying that he ‘considered that they should have a jury of matrons for these cases’.

Now, the jury of matrons was a group of women tasked with ascertaining whether or not a female convict  who had been found guilty of a capital felony was pregnant enough for her foetus to have quickened, this being a reason to defer the execution, or, latterly, to commute the sentence.[i]  It was still in use, though criticised as inappropriate in a world which put ever greater trust in professionalised, mostly male, medical practitioners. This report of the case, in its joking suggestion that there should be a jury of matrons for issues regarding womanly attire, reflects both knowledge of the institution, and also perhaps an idea that the proper sphere for the expertise of women was located in a less important area than the presence or absence of life: frothy superficiality, rather than deep and hidden truths.

In fact, this jokey script of a judge throwing his hands up in the air at the mysteries of women’s clothing,[ii] and suggesting that a jury of matrons would be a good idea in such cases, can be seen in other reports. I cannot claim to have made an exhaustive search, but there are certainly earlier examples of it, not infrequently stitched together (yes, I was pleased with that imagery!) with rather creepy judicial comment or behaviour which, in fact, suggests that women, and their secrets, are, in fact in the male domain.

An 1864 edition of The Illustrated Usk Observer and Raglan Herald carried a report of a London Sheriff Court case involving a disputed millinery bill (were the hat prices ‘reasonable’ or ‘exorbitant’? Only ‘the ladies’ could say … thus we have a humorous call for a jury of matrons). A slightly different story was the South Wales Echo report in 1887 of an English case involving bridesmaids’ dresses. In this case, the ‘humorous’ wish by Judge Turner, in Ripon, for a jury of matrons was to sort out the custom with regard to whether or not bridesmaids were expected to pay for their own dresses to be made up.[iii] Tame enough, if trivialising.

We get into more leering territory with the Weekly Mail of 9th July 1887 which reported a similar remark from Kekewich J, when faced with a case involving ‘dress improvers’ (that’s bustles to us) but also features some icky banter about garters. The South Wales Echo elaborated, noting  ‘the Attorney General’s eloquent description of “the human frame divine”, and the appearance of the bench covered with bustles and dress improvers of every conceivable shape and size’.[iv]  Similar need-for-a-jury-of-matrons things were said by Hawkins J in 1893, according to a report in the South Wales Echo (which enjoys telling us -or not quite telling us – that the case involved some sort of women’s underwear). Then there is a report in a 1902 edition of the Cheshire Observer, relating to a Birmingham case on the quality of work on women’s clothes. This trotted out the ‘we need a jury of matrons here’ line, but also showed the judge (Judge Whitehorne) airing a few judgey views on women’s fashion – the front of the coat in question (a plush sac-coat … no, me neither) was ‘vulgar’ because of its hooks (No idea – too revealing? Too shoddy-looking? Certainly suggests a questionable fixation with women’s … fronts … on the part of the judge).

In 1905, Judge Owen was, reportedly, at it again. The Cardiff Times reported another of his cases, involving allegedly defectively made women’s clothes, under the evocative/emetic headline ‘A Patchwork Skirt: Judge Owen sighs for a jury of matrons’. As well as making the matrons comment, we are ‘treated’ to the judge’s banter about just how long or short the skirt is, with rather excited questioning about whether it covered her knees, whether she wanted to show her ankles etc.

Possibly most creepy of all is the combination of ‘we need a jury of matrons’ plea plus judicial over-involvement of an actual gropey nature, seen in a report of a case of 1907, appearing, for example, in the Evening Express. This was a case involving a woman, Marion Draughn, who was something of a celebrity, due to her involvement in an earlier breach of promise case. It was, again, about whether or not somebody had to pay, if clothing was supplied, and was not what the customer wanted. We are informed that Deputy Judge Bevan, in the Westminster County Court, had Miss Draughn go off and change into the ‘costume’ in question, and proceeded to run his hands over her to determine the fit or lack of it. Eurgh.

So what? Well, it is not very surprising that women were treated with scorn, with regard to their capacity as jurors or the clothing they wore. Assuming that the reports are not completely inaccurate, however, they do seem to me to give some interesting glimpses of judges flashing to posterity rather more of their innermost thoughts about women, their bodies and their fascinating garments than they might have meant to expose.



[i] There is a lot of good work on this area. A very good place to start on the institution in its later years – covering this period – is K. Crosby, ‘Abolishing juries of matrons’, OJLS 39 (2019), 259–284.

[ii] (resonating, to the medievalist, with the ‘secrets of women’ idea)

[iii] Added hilarity was provided by the fact that the bridegroom was 73 years old (no mention of the age of the bride, but the word ‘elderly’ did appear to apply to her too).

[iv] It is worth noting that this intellectual property case was not all that trivial in financial terms: the owners had sold £1,500 worth of the items in a year. There was some joking about ‘prior publication’ involving ridiculing of bustles too. It is, of course, quite hard not to see them as preposterous, but, equally of course, ridiculing women’s fashions can have a profoundly misogynist tone. See also the reference to this case in another relating to ‘trouser-stretchers’ in the same year, which reported that one of the lawyers, Mr Aston KC, had suggested that a ‘jury of mashers’ might be used here. I had remembered this (from, I believe Tipping the Velvet), as a male-impersonating-female, but the OED suggests that we should translate it as a jury of leering, creepy men, or at least dandified men.


Image – phwoar, eh? Get a load of this – it’s a bodice, courtesy of Wikimedia Commons

Feu[dal] and [not] far [enough] between

I know that there are much bigger issues out there at the moment, and that there are even bigger problems with leasehold itself, but, politicians and journalists covering planned leasehold reforms, can we STOP CALLING LEASEHOLD FEUDAL?!. Accepting (as some historians don’t) that ‘feudal is a useful term, the lease isn’t, and never was. Yes, there were leases in the medieval world being referred to in a vague, flabby, days-of-yore, way, but they just didn’t occupy the same position as they have done in more recent times. ‘Medieval serfdom’ did not involve leases in anything much like the 1925 Law of Property Act s. 1 sense. ‘Capitalist’ is the word you are looking for.

I had high hopes that somebody had had a word, when I saw the Observer headline for the story – OK, they were pushing the ‘antiquated’ line, despite the fact that the worst abuses seem to be relatively modern, but ‘unfair’ is appropriate, but reading on, we have the full package of ‘feudal’ and William the Conqueror. How is this, from that piece, for a bit of not-joined-up history:

This is a form of rentier capitalism that dates back to the 11th century, when the feudal system was enshrined in law by William the Conqueror. Before the Second World War, almost all flats were rented rather than owned. The number of properties owned on a leasehold basis expanded hugely from the 1970s onwards as large houses were broken up into smaller flats and buying flats to live in became commonplace.

Nothing much happened in relation to leases, nor to land tenure, nor property practices in general, between 1066 and 1939 … ???

There is, I suppose, a little more justification for the ‘feudal ground rent clauses’ variation, in spirit, if not in letter, if the idea is that they are within the control of one party, and can be varied, in the manner of medieval villein services (though, even here, a decent medievalist could tell us that, while there might not be much in the way of common law control on services at a very early point, custom did rather a lot to curb arbitrary changes). And, usually, the ‘feudal’ label seems to be attached to leasehold in general, rather than this aspect of it. (Forfeiture is also picked out as having feudal associations at times: again, not terribly accurately).

And yes, it matters – both in terms of history and in terms of the present. In terms of history, it is a classic example of contempt for the people of the past.  As others have pointed out with regard to the tedious descriptions of violence or barbarism as ‘medieval’, this chronological ‘othering’ trick is a way to avoid seeing the wrongs and problems of the present. Ludicrous ground rent clauses are not the fault of greedy modern landowners out to exploit those not in a position to refuse, they are all down to medieval legal structures and William the Conqueror. Lazy.

Good to get that out of my system!



Image – in honour of the date, but also, the state of my head when confronted with another ‘leasehold is feudal’ reference. Photo by Jonas Frey on Unsplash


Judges, character and credibility

We legal historians have occasion to look at an array of different sorts of reports and records of cases, from the terse medieval plea rolls, via Year Books with their play-like format, through the slightly anarchic years of printed reports of varying standard and reliability, to the fuller, somewhat more easily understandable, reports of the nineteenth and twentieth centuries. There have been developments in recent years, however, which will one day need to be considered as part of a full history of the communication of legal decisions, via ‘official record’ and report. I am thinking of the huge expansion of material relating to cases which is now recorded and published in an easily accessible way. I think that it is arguable that the advent of the prepared essay style judgment, published online, has brought with it legal historically important changes,

One development which has impacted upon my professional world is the practice of publishing fuller and fuller judgments. This expansion is very noticeable in my main ‘day job’ legal subject, Land Law. I presume that, in the case of judges at lower levels in the hierarchy, the trend to longer judgments is prompted, at least in part, by a wish to ensure that, should a case be appealed, the lower-level judge would not be accused of having dealt with some point inadequately. Clearly, we are not the main consideration of judges, in their decisions to be more or less verbose, but it is something of a pain for those of us who want to encourage students to read cases (good luck with some of the massive proprietary estoppel ones in particular!).

It is not just length and the problems that presents for law professors and law students which is worthy of note, though: it is what is included. An issue I have mentioned before is that of judicial comment on witnesses, and the practice of judges including in written judgments and putting out into the public domain their views on the witnesses who appear before them. While judges in cases in which they sit alone, and in which there is a need to decide between different versions of the facts, must clearly make a decision as to which witnesses to believe, and should, in order to give a reasoned judgment, state which witnesses they regarded as more accurate, I am not convinced that it is necessary to go further into character assessment, publishing to the world comments on parties and non-party witnesses which might be hurtful, offensive or damaging to the individuals who have given evidence, and may well (I imagine) not have been expecting this sort of material to be disseminated.

Yesterday, I was reading a particularly interesting example of the genre: Gilpin v Legg [2017] EWHC 3220 (Ch). In this case, which concerned leases, licences and beach huts, the judge (HHJ Paul Matthews, sitting as a Judge of the High Court, in Bristol) commented in the following way, on various witnesses:

The father of a claimant was a ‘careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.’ (7)

A male claimant (a doctor) was ‘a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.’ (8)

A female claimant was ‘a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light.’ (9)

Another male claimant ‘gave clear and straightforward evidence, and was obviously trying to assist the court.’ (10)

A male defendant was ‘an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful.’ (11)

A male solicitor (the defendant’s litigation solicitor) ‘was a professional but slightly excitable, even enthusiastic witness.’ (12).

Another witness was ‘an elderly lady’. (13)

Though there was a need to express a view on the parties’ evidence, I am not sure that anyone needed the comments about a defendant’s ‘feistiness’ or why he might have adopted an ‘aggressive tone’ at some point’ or a claimant’s ‘prickliness’. I have to say that I would be fairly nervous – and quite possibly ‘prickly’ – if I had to speak in court, and knew that comments about me were going to be published in this way. And I am not sure that the ‘elderly’ or ‘excitable’ comments, in particular, were at all useful.

It does not seem to me that this sort of material helps anyone involved in modern legal practice, or that proper transparency and reasoning requires it. Of course, I am not just thinking about the present, and whether this is a good way of handling the assessment of credibility. There are legal history angles! The inclusion of this sort of material makes for an interesting comparison/contrast with some of the early reports of medieval common law cases, in which there are personal comments, but these relate to serjeants pleading before the Common Pleas or King’s Bench, rather than witnesses or parties. I do wonder what legal historians of the future will make of this sort of commentary. It does strike me that they might find it interesting to survey this sort of comment, cross-matching with characteristics of the commenting judge, and such matters as gender, age and professional status of the witnesses being subjected to these published assessments. They might well conclude that early 21st century judges were – in the formulaic incantation – ‘doing their best to assist’ legal historical scholarship.



Image – I am going with ‘prickly’ …. Photo by Klara Kulikova on Unsplash

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.





[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 DPPLegal 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.

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.





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.


Photo by Javier Balseiro on Unsplash


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

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

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

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

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

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

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

[xi] Staffordshire Newsletter, 15th 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, 12th 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 19th-20th 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 14th 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 20th C (see, e.g., Halifax Evening Courier, 15th 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 … ).




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 6th edn, 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 23rd  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.



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…




Photo by serena saponaro on Unsplash

Messing with the Temporal Prime Directive

I think I had better record this confession, in case there are consequences … I have just entered a ‘research output’ on my institution’s system, like a good little Starfleet Officer, but somehow got the year of publication wrong. So it is down as ‘published’ … but in 2026 not 2023, and I can’t change it. What chaos might that cause? Well, if space and time become royally screwed up … sorry everyone!