Category Archives: Legal Historical Methods

Medieval Sporting Memories

The (male, football) World Cup started today. I am not much of a sport fan (missed out on the team-supporting gene and seriously disliked Fever Pitch – but will refrain from going off on a ‘New Opium of the People’ rant…) but by weird coincidence, football cropped up in my medieval legal history reading today too. There I was, reading an interesting article about 15th C proof of age inquests, and whether they were all a pack of made up nonsense (M. Holford, ‘”Testimony to some extent fictitious”: proofs of age in the first half of the fifteenth century’, Historical Research 82 (2009) 632-54 at 637) when some instances of football-related injury jumped out at me. Thought they were worth a quick blogging.

In Inquisitions Post Mortem vol. 22, inquisitions no. 189, 360, 361 and 364, all relating to Essex, some of the men who were confirming the date of birth and baptism of different, younger, men, with a view to showing that the young men were old enough to inherit land, did so by reference to injuries sustained while playing football, (ad pilam pedalem) more than two decades previously. Now, it may be that the stories were untrue, or ‘boilerplate’, but perhaps they can still show us/ remind us of a couple of interesting things:

  1. They are all (left) leg injuries. The tibia is mentioned. That seems noteworthy. Football medieval style always seems to be portrayed as something a bit more like rugby/American football, without the rules (or, in the latter case, the shiny trousers). But shin injury does suggest that the game they are talking about is actually something a bit more like your actual football.
  2. These are all men of a certain age – forty-somethings, talking about their glorious sporting exploits when they were young things in their early twenties. (Possibly, off-parchment, they regaled the assembled throng with tales of having had trials for Arsenal or medieval equivalent, and how their promising careers were ended by the aforesaid injury).
  3. It seems to be accepted that having a game of football (with or without shin-splitting) after a baptism was ‘a thing’, which is a nice little detail about medieval birth celebrations. Possibly, if mixed with celebratory alcohol, the apparent frequency of shin injuries (‘shinjuries’?) is explained.

Perhaps I am coming round to football after all. To be continued, if I find any other good football/legal history/medieval cross-over material …

14th June, 2018.

Football is a bad thing – official

World cup still on then …

There were statutory provisions against football in the later medieval period (see particularly 2 Richard II, c. 6: Statutes of the Realm II, 57, 11 Henry IV, c. 4, SR II,163). It is more complicated than that, of course: there was not a clear objection to football itself (despite its apparent danger to the shins of the English): the ‘beef’ was mainly with the fact that it distracted the lower orders of men from their archery practice, and, perhaps, that it might be the occasion for disorder. Legislation also hit out against those dreadful disrupters of society, quoits and bowls. And an investigation of many lower court rolls shows a reluctance to report and punish men for playing football (see McIntosh, Controlling Misbehavior in England, 1370-1600 (Cambridge, 1998), pp. 98, 133).

18th June, 2018.

Landmark remarks

Some thoughts on ‘Landmarks’

The word ‘landmark’ has been more than usually prominent in my various law-related channels of communication of late. As a matter of choice and interest, I keep up with the progress of the admirable Women’s Legal Landmarks project, which highlights significant steps on the far-from-finished road to equality, and will publish a book with Hart in 2018. In addition, my attention has been drawn by various people and by the publishers themselves to Hart’s several volume series, Landmark Cases in… which includes edited collections of articles on cases in particular fields of legal study.  Same publisher, same word, but rather different ‘feel’ to the two lines of ‘landmarks’ offerings.

Perhaps, in light of my interest in the former, it will be unsurprising that I raised an eyebrow when checking the details of the Landmark Cases volumes on Hart’s website: the often very small proportion of women authors and editors. I should say straight away that there are exceptions – Property Law, Medical Law and Family Law had better balances in terms of authors, and included a couple of female editors. Elsewhere, however, things were much less encouraging: note the contents details for the volumes on Tort, Contract, Public Law, Land Law and Criminal Law. A researcher of the future, looking at these volumes, would take away a rather odd picture of early 21st century legal scholarship. Are there really so few eminent female scholars (http://www.bloomsburyprofessional.com/uk/series/landmark-cases/ ) in these fields? Perhaps these books will feature in a chapter in distantly forthcoming collection, Landmarks in Women’s Legal Scholarship (2117), preferably as a footnote example of quaint peculiarity in the one concerning the move towards gender balance as a normal part of academic conferences and publishing.

GS 12/7/2017  

Latest Journal of Legal History – some more for the reading list

issue 3 for 2016 features articles on: the reception of Magna Carta in early modern Germany, charitable trusts and the 1857 divorce law reforms.

German legal history is something with which I have always meant to become better acquainted: it has just always seemed so daunting in its variety. That being so it is good to have an entry point like Magna Carta to use.  Carsten Fischer’s ‘The Reception of Magna Carta in Early Modern Germany, c. 1650–1800’, pp. 249-268 describes the reception of MC in German scholarship and letters more generally. His clear point is that this amounted to the reception of a trope or reputation, with interest centred upon the 17th C revival/ translation of MC, and the assumption that MC = liberty, rather than a careful excavation of the actual content and medieval context of MC. I was particularly interested in some of the less-impressed comments from 18th C German commentators – conveying the idea that the English were deluded in their idea of their own freedom (some interesting resonances in these darkening times), and in the idea of using discussion of MC as a proxy for possibly dangerous comment on German issues.

The requirements of charitable trusts is something which featured on my radar a few years ago when I was joint-supervisor of a Ph.D. in this area. It was, therefore, interesting to see the careful and convincing research and argument in this area in M. Mills, ‘The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century’. This traces the familiar oddness of doctrinal development in England, with strands of obiter, general comment and elements of mortmain law reasoning combining with social developments to create a rule for qualification for charitable trust status. Admirably done.

And finally, one which I will be using with my Legal History students, H. Kha and W. Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’. This provides an accessible and illuminating account of the Campbell Commission and debates leading up to the MCA 1857. Interesting psychological effect (in this moment of clashing past and present, as we wonder what is the best response to convictions of former crimes now not seen as wrong https://www.theguardian.com/law/2016/oct/21/chris-bryant-commons-plea-gay-pardon-law )- although I am always conscious of not regarding medieval people with contempt, even when I disagree with them, I do find it difficult not to get exasperated with the hypocrisy of Victorian lawyers and parliamentarians. Will have to work on my anti-19th C prejudice.

 

 

 

 

Worth a look: Raffles

Worth a look: R.W. Ireland, ‘Criminology, class and cricket: Raffles and real life’. Legal Studies article

Legal Studies has not always been known for its articles on Legal History, but there is a good one in the current issue – Richard Ireland’s consideration of the Raffles stories in their historical context. These stories, once extraordinarily popular, deal with the adventures of a cricket-playing gentleman burglar. I have never been a fan of them (cricket, gentlemanly caddishness – enough said) but they certainly were a striking success, and this article is an original exploration of their relevance to ideas of crime, ‘criminal classes’ and professionalism, past and present.

I am even less of a fan of Foucault than I am of cricket, and it is unfortunate that anyone looking at the history and theories of criminology and penology feels obliged to mention Foucault. Although Ireland does not reject Foucault, it is good to see him gently pointing out that those who have actually looked at prison history are less likely to be enamoured with his work than some social scientists. Give me Maitland any day.

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

 

 

 

LH internet resources

In the past few years, a large amount of information relating to legal history has been made available on the internet. This is a brief guide to those resources which I have found useful, and which may be of interest to others working in law, history and legal history.

1. Legislation and records of government activity
Pre-1215 laws are being placed online via Early English Laws project: http://www.earlyenglishlaws.ac.uk/

Statutes of the Realm (to 1713) can be found via Heinonline > English Reports.

The Calendars of Patent Rolls from Henry III to the middle of the reign of Henry VI (1216-1452) have been made available by Prof. G.R. Boynton and the University of Iowa Libraries, with a useful and generally reliable search facility: http://www.uiowa.edu/~acadtech/patentrolls/

British History Online http://www.british-history.ac.uk/Default.aspx has some content available free, (including the Victoria County Histories, Calendar of Papal Registers, parts of Rymer’s Foedera and journals of the early modern houses of parliament). Other items, such as the Parliament Rolls of Medieval England  and the Calendars of Close Rolls, however, are only available with the ‘premium’ subscription service.

Calendars of Fine Rolls from the reign of Henry III have been made available free as part of the Fine Rolls Project: http://www.frh3.org.uk/home.html

The National Archives website gives links to freely downloadable images of its class SC8 (‘Ancient Petitions’) which include many petitions to the king, his council, Parliament and royal officers. These documents are usually in Norman French. The National Archives catalogue is itself a useful resource, with helpful descriptions of documents and classes of documents, and a number of research guides: http://www.nationalarchives.gov.uk/catalogue/

Eighteenth to twentieth-century parliamentary papers can be found at: http://parlipapers.chadwyck.co.uk/home.do and a variety of 18th Century official publications at: http://www.southampton.ac.uk/library/bopcris/parl18c.html.

The National Archives has many projects making available original records. For example, many Poor Law records have recently been put online (free): http://www.nationalarchives.gov.uk/documentsonline/workhouse.asp

2. Court cases
A major project led by R.C. Palmer and E.K. Palmer at the University of Houston has made available, free of charge, high-quality images of the rolls of the royal courts of medieval and early modern England (and, to a limited extent, Wales): http://aalt.law.uh.edu/. There are King;’s Bench, Common Pleas, Exchequer, eyre records and other categories. This material is not, however, particularly ‘user-friendly’, since there is no index or search facility, and in order to understand it, some knowledge of Latin and palaeography is required.

Another American project, led by D.J. Seipp at Boston University, has catalogued and cross-referenced all of the Year Books (lawyers’ reports of the pleading in notable cases in the central courts in medieval and early-modern England): http://www.bu.edu/law/seipp/. Links to images of the printed ‘black letter’ Year Books are included where appropriate. The search facility is particularly good. This resource is mainly in English, though the original records themselves are in ‘Law French’ – a version of Norman French. A working knowledge of modern French and recourse to J.H. Baker, A Manual of Law French (1979) usually suffices for their translation.

Bracton’s Note Book (thirteenth century cases) is available in HeinOnline’s Legal Classics Library: http://www.heinonline.org/HOL/Index?collection=beal

The English Reports, the great collection of ‘nominate’ law reports covering cases from medieval times to the Victorian period, are available via Westlaw and as part of the Library’s subscription to HeinOnline: http://heinonline.org/HOL/Index?collection=engrep&set_as_cursor=clear. Note that some of the earlier English Reports are, in fact, in Law French, with occasional formulaic Latin.

An important resource for criminal law is the Old Bailey Project, with many reports of criminal trials from the seventeenth to the early-twentieth century: http://www.oldbaileyonline.org/

Miscellaneous records from a variety of courts (especially London’s local courts) are available in British History Online.

Twentieth century cases are found in the normal series of law reports, many of which can be found online.

Records of church court cases are being put up in http://digitalhistory.concordia.ca/consistory/about.php?expand=about (in progress)

3. Treatises
Bracton can be found at http://hlsl5.law.harvard.edu/bracton/ (Harvard University Library).

Many other treatises, including Blackstone’s Analysis and Commentaries, and Coke’s Institutes are included in HeinOnline’s Legal Classics Library: http://www.heinonline.org/HOL/Index?collection=beal. Note that the versions of ‘classics’ on HeinOnline are not necessarily either the earliest or the latest version, nor, in the case of works originally not in English, are they necessarily the best translation available.

Also extremely useful, with thousands of scans of out-of-copyright books, including treatises and some reports are:
archive.org, http://archive.org/index.php
Early English Books Online http://eebo.chadwyck.com/home
Project Gutenberg http://www.gutenberg.org/

4. Journalism

Newspapers, pamphlets, periodicals can be good sources – lively and opinionated, if not always reliable. These are published online in various ‘packages’ to which university and some civic libraries will subscribe. I have found the collection 19th Century British Periodicals, to which my library subscribes – particularly helpful for teaching purposes, particularly for pictures and satirical accounts from periodicals like Punch, Funny Folks and Judy, the Conservative Comic.

5. Art

Law and especially crime has inspired many works of art. A collection like ArtStor can be useful to locate relevant material.
6. Biography
The Oxford Dictionary of National Biography is available, and fully searchable, online: http://www.oxforddnb.com/. This gives reliable biographies of many law-makers and lawyers as well as some notorious criminals and victims of crime.

7. Bibliography
The BREPOLIS Bbliography of British and Irish History is a good place to start for all British and Irish historical monographs and articles: http://www.brepolis.net/. Also at this address are specialised medieval international bibliographies.

8. Journals
The major legal history journals, Journal of Legal History and Law and History Review are available online.

Relevant articles also appear in ‘straight’ history journals (many available online), though these are overwhelmingly about the history of criminal law rather than other aspects of legal history.

9. Miscellaneous
The Internet Text Archive is worth a look if you are after older (printed) public records, local records or chronicles: http://www.archive.org/details/texts

Free online transcriptions and documents relating to many areas of history can be found at: http://www.fordham.edu/halsall/.

British history primary sources can be found at: http://eudocs.lib.byu.edu/index.php/History_of_the_United_Kingdom:_Primary_Documents.

Bracton’s Sister: what’s that all about then?

Welcome to Bracton’s Sister, my Legal History site.  Why Bracton’s Sister? Well, it’s a nod to Virginia Woolf’s A Room of One’s Own with its notion of Shakespeare’s sister. As with literature, law was, until the twentieth century, an exclusively male profession, and we might wonder about the thoughts of Judith Bracton on the developing common law of the thirteenth century. Unlike her brother Henry, she did not have the chance of becoming a judge and reputed author/editor of an important legal treatise.  One day, her works may be discovered. Until then, there is Bracton’s Sister.

What’s it for? The idea is that it will:

1. give some details of my current research projects;

2. note interesting new work from others which has impressed me;

3. bring a bit of legal history into more lives than could be reached by seminar and conference presentations and academic journal papers.

Legal historians don’t tend to get out much, which is a pity, because our subject is fascinating and packed with human interest, as well as the intricacies of writs and deeds. Sometimes, there’s even some humour. So the site will allow me to publicise the interest of the subject (without actually having to go out and talk to real people). Ideal.  And Judith Bracton agrees.