Category Archives: General Rambles

Mistresses in modern law reports and legal writing

After the last post’s moan about emasculation imagery in legal writing and law reports,  today I turn to another annoyance which happens to appear in my recent land law reading: the strange survival of the term ‘mistress’.  It comes up in the important case of Stack v Dowden, and, as another quick electronic search shows, in many other places as well.

And what is wrong with using ‘mistress’, it may be asked. Well, while it can’t really be escaped in certain historical contexts (think Louis XIV), and, when a person calls herself that (Mistress R’eal appeal – dominatrix not bound by video on demand ruling (Case Comment) Ent. L.R. 2016, 27(3), 118-121), then what else can you do?, but, otherwise, it is best avoided when talking about the modern world, because of (a) its ambiguity and (b) its embodiment of extremely unequal assumptions about gender relations.

So – a quick survey (Clearly this is something which is worthy of much more sustained research – where is my Research Council grant?) Mistresses can be seen in academic article titles – either real women  (e.g. ‘Grierson spent GBP 630,000 on mistress’, S.J. 2012, 156(23), 5) or more metaphorical (and not in a nice way – ‘fickle mistress’ anyone – ‘A flexible friend or capricious mistress?’ E.G. 1994, 9416, 138-139). Have to say I am quite taken by the title ‘Power is my mistress’ (great indie album title, no?) – but not enough to read a journal called ‘Tax’ (Tax. 2007, 159(4092), 102).

Looking at cases, (once head-mistresses and post-mistresses are filtered out) there are many examples of the term being used by others and transferred into the reports – e.g. in defamation cases against newspapers etc. Can’t really hold that against the reports. But there are also still too many other examples of unnecessary and inappropriate mistressings – in all sorts of cases, from crime to ecclesiastical matters.

Succession cases are another stronghold of the usage (see e.g. Rowena Ferneley v Stephen John Napier, Catherine Emma Brooks, Derrick Arthur Napier [2010] EWHC 3345 (Ch) at [3]; Elisabeth Gorjat, Philippe Gorjat, Sophie Charriere v Lucrecia Gorjat [2010] EWHC 1537(Ch) at [25]

Although the old beneficial interests cases are stuffed full of mistresses, it’s a shock to see it still being used in Stack v Dowden  [2007] UKHL 17 , [73] quoting the first instance judge’s description of a couple as ‘man and mistress’. As well as being sexist (not partners, cohabitants,  the symmetrical man and woman, nor pairing mistress with some equally judgmental male word [which doesn’t exist]) it is quite obviously inappropriate to use this single designation for a couple with a complex and fluctuating relationship, in which the female partner was at least her partner’s equal.

There might be half an argument for keeping ‘mistress’ if it helped to define the relationship better than other, less offensive words, but when it is used, ‘mistress’ now seems rather indefinite. It no longer means a ‘kept’ woman. It may or may not involve adultery by the ‘mistress’ or the ‘man’ (Lilburn v HM Advocate [2015] HCJAC 50 [124]). It may or may not involve the pair living together, or having a family (pair living together – with man’s wife as well – R. v Barry McCarney [2015] NICA 27 at [25]). She may be a much younger woman with whom a man has ‘taken up’ (Re Lindley (Setting of Minimum Term), Re Queen’s Bench Division [2007] EWHC 1436 (QB), Westlaw Case Analysis). A ‘man’ may have more than one ‘mistress’ (Hawk Recovery Limited v Natasha Anastasia Eustace, Brunswick Wealth LLP [2016] EWHC 115 (CH) at [36])

The ‘mistress’ appears in some ecclesiastical cases to have an almost official standing, though the exact definition is not explained (see discussion of the rights of mistresses against widows in In re St Augustine’s Churchyard, Droitwich Spa; In re Spickenreuther’s Petition [2016] ECC Wor 2; Ormandy, Re (Court of Ecclesiastical Causes Reserved  25 August 2009, Westlaw Case Analysis, unreported). In succession cases, the ‘mistress’ may be set up as the rival of a former wife (John Arthur William James, Stephen Neil Mountford v Kathleen Louise  Williams and others [2015] EWHC 1166 (Ch) at [7]). Again, I am not sure the full meaning is beyond dispute.

Another level of ambiguity comes from the fact that ‘Mistress’ has come to have overtones of (transgressive?) sexual dominance (Stephen Dawson v Laura Bell [2016] EWCA Civ 96, concerning ‘a fetish website with a Mistress Directory’. The idea of mistress as  dominant partner in sex is seen in  Y v Slovenia  (2016) 62 E.H.R.R. 3 at [34]),

All in all, it seems best jettisoned. Failing that, perhaps a movement to insist that every usage of ‘mistress’ is paired with an appropriate demeaning/judgemental term from the list: ‘philanderer’, ‘fancy man’, ‘little turtle dove’ etc. etc.

Update, 11/8/2018

Article in the Guardian with reference to a woman having been somebody’s ‘mistress’. In 2018. (Also note lack of realisation that we are in the midst of a huge UCU strike which is proving pretty successful … top journalism) https://www.theguardian.com/commentisfree/2018/mar/10/dont-look-to-len-mccluskey-and-his-sorry-ilk-to-defend-workers-interests

Update (sort of!) 29/4/2020

Disappointing sighting – Helen Maud Cam, Law Finders and Law Makers, 214, oh Helen M., did you have to give us the image of Law and History as ‘Maitland’s two mistresses’ ? Really???

Cheeks, jowls and pampas grass: history of neighbours

Recent read: E Cockayne, Cheek by Jowl: a history of neighbours (Bodley Head, 2012)

Only 4 years after its publication, got around to reading this. I had heard of it via an old episode of R4’s Thinking Allowed, and thought it might be worth a look to get some quotes for my lectures in Land Law. Didn’t have much at all to say about easements, unfortunately, (I think that was a gap) but very enjoyable nonetheless.  Lots of examples of nuisance, and crime between neighbours. Also learned – rather worryingly – that pampas grass is ‘the swingers’ signature plant’ (it was prominent in the front garden of my childhood home!) and that there is a porn studio near Bradley Stoke (Bristol/S. Glos). Who knew?

Also baffled by the mystery which is academic publishing. This cost me less than £5 for the Kindle version, while other things I would like to buy cost something over £60. Bonkers.

Law in space (but no rockets)

There is a very thought-provoking and bold legal history related article in the latest Past and Present: R. A. Houston, ‘People, Space, and Law in Late Medieval and Early Modern Britain and Ireland’, Past and Present 2016 230: 47-89

The article argues for a significant difference between English law on the one hand and the laws of Wales, Scotland and Ireland on the other, based on the relative importance attached to personal and territorial jurisdiction. In brief, it is contended that territoriality was more important in England, while the other parts of the British Isles emphasised jurisdiction based on personal links.

The argument is made with spirit (and is rather more nuanced than might seem from my summary above) and there is a lot in it to interest legal historians from all parts of these islands. As a good article should, it also leaves room for debate in several areas – e.g.

  1. To what extent would it upset the argument to factor in gender (since women in all areas were arguably more affected by personal links with male family members and their powers and rights than they were by territorial jurisdiction)
  2. Are territorial jurisdiction and personal jurisdiction best considered as a linear ‘continuum’ (p.89) or as something more 3D?
  3. Exactly how does the common law ‘doctrine of estates’ relate to the idea of territoriality? (I have been teaching Land Law too long …)

Hedgehogs couchant and rampant

A Tory MP has suggested that the lion be replaced by the hedgehog as national symbolic animal of Britain. http://www.bbc.co.uk/news/uk-england-34786004  I am not sure that the whole of Britain sees the lion as its national emblem, but, leaving that aside, both as a way of raising the hedgehog’s profile and chances of survival, and as a recognition that. … er … there aren’t lions in the UK, this seems like a good idea. It is a less bombastic, boastful national animal, too. (I would also like to see Scotland debating the possibility of a hedgehog rampant on its royal flag – and why not a red draenog for Wales?). Anyone doubting the pictorial potential of the hedgehog should look at these great medieval images: http://britishlibrary.typepad.co.uk/digitisedmanuscripts/2014/10/how-to-be-a-hedgehog.html

Hedgehogs do not seem to have made much of an impression on the common law, though they are mentioned once or twice. In a move to chill the heart of any urchinophile, Tudor statutes provided for payment for killing many creatures – including hedgehogs – for the preservation of grain. Under the statute 8 Eliz. c. 15, presentation of the head of a dead hedghog was to be rewarded with 2d (on a par with handing over the head of an otter; neither creature really being much danger to grain, one would have thought). On a more positive note, a letter of Lord Eldon notes the use of a hedgehog to catch beetles in a house: H. Twiss, The Public and Private Life of Lord Chancellor Eldon with Selections from his Correspondence (1844) 290. Hedgehogs make stereotyped appearances in modern IP law, and, in a boundary dispute case in 2000 (Smith v Kerswell) there was an allegation that one of the feuding parties caused a hedgehog to be put into the mobility scooter of someone related to the other … Otherwise, it’s a struggle to find references. And nobody seems to have done a critical reassessment of the legal aspects of Mrs Tiggywinkle or Fuzzypeg. Unfathomable.

Clearly, these understated but endearing creatures need some help in the PR department, so, even though it means agreeing with a Tory, I am all for this.     

The Great Legal History Bake Off: a survey of Old Bailey pies

The Great Legal History Bake Off: a survey of Old Bailey pies

It is a question which has, no doubt, been on everyone’s mind this week, as the Great British Bake Off ‘did’ pies: what sort of pies featured in the legal cases of the past? Obviously, that’s one to put through the Old Bailey database  (http://www.oldbaileyonline.org/index.jsp ) …

There are many pie references. Pie shops, often eel pie shops, are mentioned with some frequency in descriptions of crimes, and in 80 cases, a pie, with its filling, forms part of the narrative.

So here is the pie chart:

Type of pie Frequency References
Pork 17 t18200112-3, t18400203-682, t18490409-852, t18520405-405, t18570615-676, t18600507-445, t18620922-996 t18630608-856t18650111-157, t18690503-492, t18751122-39, t18820109-225, t18860308-338, t18880227-379, t18910309-275, t19030720-626, t19051113-19
Mince 9 t17410116-40, OA17500516, t17530221-47, t17540424-60,

t18070114-5, t18380226-699, t18510407-841, t18540227-416, t18920307-320

Apple 7 t17190903-11, t17550515-22, t17691206-43, t17730217-29,

t18241202-93, t18381231-465, t18490917-1807

Pigeon 6 t17200427-27, t17320705-17, t17480706-45, t17610625-19

t18150621-64

t18160918-21

Eel 4 t18190526-103, t18520202-226, t18570406-547, t19101115-78
Giblet 4 t17320114-12, t17581206-24, t17661217-56

t18441021-2411

Mutton 4 t17190903-11

t17320114-9

t18211205-99, t18280529-39

Fruit 3 t18360919-2123, t18510818-1734, t18850727-731
Meat 3 t18490917-1830, t18600402-330, t18660226-282
Currant 2 t18110918-51, t18380820-2009
Veal 2 t18130407-153, t18680706-590
Lamb 2 t17480526-11

t18220417-149

Rhubarb 2 t18680608-567 t18740112-139
Rabbit 2 t18450303-784 t18891216-113
Damson 2 t17860111-2

t18421024-2775

Cherry 2 OA17420113

t18580816-795

Beef steak pie 1 t18150405-18
Gooseberry 1 t18300916-305
Steak and giblet 1 t18350921-1984
Kidney 1 t18520202-226
Greengage 1 t18571123-43
Meat and potato 1 t18790805-737
‘fowls’ 1 t17380222-28
Duck 1 t17580222-22
‘Cooper and pork pie’ 1 t18661119-38

 

It is clear, then, that pork pies are the type most frequently encountered in these crime narratives.  Comiserations to nineteenth century pigs.

But what role did the pies play in the episodes described? Often, they were just mentioned as part of the circumstances, or description of a scene. On occasion, however, they took a more central part.

The most pie-centric case is probably an embezzlement case of the 1880s, in which the whole thing turned on whether or not a pork pie had been ordered (t18820109-225).

In several coinage offence cases, the item bought with a false coin was a pie: often a cheaper variety of pie, suggesting some degree of desperation on the part of the attempted purchaser: (mince pie – t18380226-699; pork pie  t18490409-852 ; penny mince pie – t18510407-841; eel pie, kidney pie t18520202-226 ; eel pie, t18570406-547 ; penny meat pie t18600402-330; Pork pie,t18650111-157; Twopenny meat pie, t18660226-282; Veal pie t18680706-590; Fruit pie t18850727-731; Pork pie, t18910309-275; Penny mince pie, t18920307-320; penny eel pie – t19101115-78).

A pie was also one of the things stolen by burglars in a number of cases (e.g. t18130407-153). Some of these were pies of considerably greater value than in the coining cases (e.g. pork pie, value 2s, 1820 t18200112-3; gooseberry pie price 2s 6d –  t18300916-305). Sometimes the pie itself was not the thing stolen – the spoon used to eat it being rather more valuable (t18360919-2123).

A pie might be evidence of an offence – so when a considerable quantity of eels (70 lbs) were stolen from a boat in 1815, they were found in a ‘very large’ pie (t18190526-103) in the prisoner’s house (along with a slimy sack and eel skins and guts). Similar pie-related attempts at disposal of stolen animals can be seen in cases involving sheep, pigs and ducks (t17480526-11, t17580222-22, t18220417-149; t18280529-39; t18520405-405).

No poisoned pies feature in the records: the closest to this is the beef steak pie in a non-fatal poisoning case of 1815 (t18150405-18). In this case, however, it is the dumplings which are suspected of having been laced with arsenic by a disgruntled employee. The presence of a mouldy pie is part of the case for child neglect in an 1865 case (t18651023-946), while the regular provision of ‘pie with potatoes and meat in it’ is taken as evidence against mistreatment in a workhouse (t18790805-737). The health-giving properties of pies are suggested by the mention of sending mutton and apple ‘pyes’  to somebody who was unwell (t17190903-11) and sending a fruit pie to a hospital patient (t18510818-1734). The most grisly pie-related tale is the infanticide case in which the dead baby’s body was found in a pie dish (t18610408-344) – though this sounds like concealment rather than attempted cannibalism.

Pies, then, clearly have an important place in legal and social history. The world of those caught up in Old Bailey trials of the 19th and early 20th centuries was a world stuffed full (as a pie) of pies, pie-shops and pie-men. So legal history and pastry have more in common than pie powder (and the fact that there is a major living legal historian with the surname Baker …)

GS 18/9/2015

 

Just when you thought it was safe to go back into a volcano … or the law reports

Inspired by the recent ‘Sharkano’ story (hammerheads surviving in an acidic volcanic crater – clearly a bad horror film waiting to happen – I am thinking Shannen Doherty in the lead role of misunderstood voice of reason, following her turn in the Killer Lampreys film: http://www.mirror.co.uk/news/technology-science/science/terrifying-heat-proof-sharks-found-living-6057016 ), I felt compelled to check out the role of sharks in legal history.

Hard to believe as it may seem, they do not feature in the Year Books (though there are many cases on fishing rights). I had been hoping for a neat Magna Carta link-up with a shark being caught in an illegal fish weir, but sadly no joy. So on to the English Reports. Not surprisingly, there is a ship called the Shark (most ER searches turn up at least one ship-name case for whatever is placed in the search engine) – Neptune the Second (1814) 165 ER 1380, the Shark coming in on p. 1381); see also 143 ER 303, 312; 144 ER 212; 156 ER 463 for this ship, or a similarly named one. There are also a number of parties to cases with the surname Shark.

At last, an actual shark appears in In re the ‘Eleanor’ (1809) 165 ER 1058, an appeal against condemnation for breach of the navigation laws. The shark is mentioned in the ship’s log book as having been caught by the sailors, and this is part of the case against the claim that the ship was forced into port by distress. No further details of our fishy friend, sadly.

More recent cases from England and Wales feature plenty of ‘loan sharks’, an idea which seems to go back some way – see e.g. the similar usage of ‘land sharks’ (and harpies) in a case of a sailor duped into signing a disadvantageous agreement: Taylour v Rochfort 28 ER 182. There are many tired metaphors involving ‘shark-infested waters’ and ‘swimming with sharks’ (for bullying business practices of various kinds, probably not involving sleek top-of -the-food pyramid predators), an intrigung disputed invention called the ‘flying shark’ (sounds a bit Sharknado to me), a shark trade-mark row, Then there is a family case in which part of the evidence was a child’s drawing of his father being eaten by a shark – W v. T [2007] EWHC 2312, and the spoilsport refusal of planning permission for a fibre-glass model of a shark crashing into the roof of a suburban house- Oxford CC v Heine 91992) 7 P.A.D. 481. There is one ‘murder by shark’ case, R v Clarke and King [1962] Crim. LR 836, in which the victim was thrown into shark-infested waters and not seen again. Looking further afield, there is an amazing murder case with a crucial role for a shark: the Sydney Shark case in S. Smith, Mostly Murder (1959) p. 222 ff. I won’t spoil it, but it involves a vomiting shark, and a theory that a man was murdered and his remains cast out to sea, only for some of them to come back inside the said vomiting shark.

To return to the shark as a metaphorical beast, one well-known association is, of course, between the shark and the lawyer – see the well-worn joke about sharks, lawyers and professional courtesy. This has long roots as well – a poetic guide to pleading of 1803 has characters called Hawk and Shark: J.J.S, The Pleader’s Guide (1803) Lecture III – and I am sure there will be earlier antecedents. Another one for the ‘to do’ list.

A little [right to] light relief

The Law Commission (England and Wales) is asking for comments on its consultation document on rights to light (negative easements which restrict building in such a way as to block light to a property which enjoys such a right).
http://lawcommission.justice.gov.uk/areas/rights-to-light.htm

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

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

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

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

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

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

Richard III – usurper’s law

All medievalists must be interested in the confirmation that Richard III’s body has at last been found – http://www.guardian.co.uk/science/2013/feb/04/richard-iii-dna-bones-king. Ric. III is a divisive and fascinating figure – and the fact that the bones in question do seem to suggest some degree of disability or distortion will no doubt lead to any number of new or reheated debates. But what about Ric. III and legal history? What are his major claims to legal historical fame (aside from the usurping and probable bumping off of his nephews?

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

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

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

For a poem on the discovery, see

http://poetry-24.blogspot.co.uk/

http://poetry-24.blogspot.co.uk/2013/02/raising-white-rose.html