Category Archives: Uncategorized

Not entirely ‘perswasive’?

In between teaching and admin., at the moment, I am working on something touching on decisions relating to the presence of life and legitimacy. Today, I am pursuing bits and pieces on the legitimacy/’bastardy’ side of it, and looking at the splendidly titled Lex Spuriorum by a very early 18th C lawyer.[i] Usually, in this enquiry, I have found my mind occupied by the disturbingly condemnatory attitudes and language, and the writing-off of so many children, people, as ‘bastards’, and somehow not as good as others, despite self-evident lack of personal guilt in the ‘sinful’ nature of their conception. Today, however, I have been ‘going off on one’ in a different direction, after looking at the preface of this book.

 

In this preface, Brydall felt it necessary to justify himself – why was he writing the book? What ‘perswaded’ him (love that spelling!) to publish it? His specific answer to that is interesting (and a little hard not to laugh at): his alleged motives include writing ‘To let the People of this prefent Age fee, what great Difadvantages Children born out of Holy Matrimony do lie under, which might … very much deter Men and Women from ever purfuing unlawful and exorbitant Embraces, of which this Nation, as well as foreign Countries, have been deeply guilty.’ Unlawful and exorbitant Embraces should, obviously, be discouraged, but the idea that people intent on a bit of exorbitant Embracing would stop, read a treatise, find it ‘perswasive’ and think better of their plans, seems … just a little far-fetched.

Postscript – It is a measure of my current preoccupation with all things REF that my mind immediately went to ‘ooh – that’s a bold claim for the potential “impact” of a piece of writing’.

 

GS 22/11/2020

 

[i] John Brydall of Lincoln’s Inn, esq., Lex Spuriorum or the Law Relating to Bastardy (London, 1703).

Quantitative methods

And this qualifies as Legal History because …

  1. Some people who do LH like to count stuff (my own efforts here are a bit amateur, but some people do it very well …)
  2. Er … virus… bit like plague …
  3. It needs to be noted for future Legal Historians and other historians.

It is … shall we say interesting … to note that my dear employer, and presumably the decision is one by the senior management team, has changed the way that it is publishing information on coronavirus, now that the cumulative total of cases looks very bad, and the institution is hovering around the top 5 or 6 according to the UCU dashboard (all the others above it being in known hotspots in the NE and NW and E Midlands).

Pleased to see that somebody is trying to fight back: https://worriedacademic.wixsite.com/bristolunicoviddata

Otherwise, feeling pretty powerless, as there is so little accountability for all of this. Sometimes, all that’s left is resistance by limerick. So here’s one I found earlier (in my head):

‘Our priority is the health and safety of our staff, students and community’ [signed, from a safe distance, some very well paid people with an interest in minimising the impression that they are putting other people in harm’s way, ]

We care about students and staff,

don’t want you to worry – don’t laugh –

we promise you, that’s

why we’ve swapped scary  stats

for a sweet, soothing, ‘what virus?’ graph.

 

GS 30/10/2020

Ruffs: there ought to have been a law against them

The stiffest and starchiest stuff,

bleached, folded, fussed over enough

to demonstrate I’m

rich in servants and time:

behold, my ridiculous ruff!

 

Well, this was a bit of a clumsy attempt to justify including an item about ruffs in what is (very vaguely) a blog about legal history. Obviously, there was a long tradition in various jurisdictions of legislating about the sorts of clothing which people could wear, but not (as far as I know) specifically about what is clearly the most ridiculous item of neckwear ever – the early modern ruff.

I have been equally horrified and obsessed by the ruff since being bought a Marks and Spencers book about the Tudors, one childhood Christmas, with all of the classic, much-reproduced pictures of the celebs of the day, increasingly, over the 16th C, ruffed up. I mean, the codpieces were … disturbing (especially on young Edward VI – just so wrong) … but it was the ruffs that really stood out for me. They seemed to be a combination of extreme discomfort and extreme silliness. Also a seriously bad idea to be drawing attention to your neck in an era rather well known for its beheading. Some of them even made the ruffee look like familiar pictures of John the Baptist’s head on a plate.

I seem to keep coming across ruff-pics these days, when looking up biographies of legal history ‘great men’ or on social media feeds about various historical things, and feel the need to work out some of my repressed ruff issues. Here, then, is my chart of ruffs – no doubt to be updated as more ruff-porn comes to my attention.

 

  1. Ruff(le)

A subtle little number, sort of polo-neck-cum-ruff, from R. Dudley

https://twitter.com/HistParl/status/1301814785173061632

 

  1. Ruff puff

The ruff itself is less than spectacular – but with that puffy sleeve, chain and skull accessorising, a winner from ‘Mam Cymru’

https://twitter.com/gcseabourne/status/1241663502479171584

 

  1. Ruff and tough and strong and mean …

It’s Walter Raleigh, wearing a doily https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Sir_Walter_Raleigh.jpg

 

  1. Rufformation

I am not convinced that ruffs are very godly, bishop Hooper

https://en.wikipedia.org/wiki/John_Hooper_(bishop)#/media/File:John_Hooper_by_Henry_Bryan_Hall_after_James_Warren_Childe_cropped.jpg

 

  1. Ruff music

Johannes Eccard is wearing a ruff, but he’s not happy about it …

https://en.wikipedia.org/wiki/Johannes_Eccard#/media/File:Johannes_Eccard_1615.jpg

 

  1. Ruff ruff ruff

In everyone’s favourite tale of domestic violence, Mr Punch’s dog, Toby, always seems to have a ruff

https://www.bbc.co.uk/news/av/uk-44988800

 

  1. Ruff and ready

Because there’s no need to be all business-like about your armour,

https://commons.wikimedia.org/wiki/File:Portrait_of_Sir_Philip_Sidney,_illusthatixg_the_ruff_worn_with_armour-_Elizabethan_People_(book).jpg

 

  1. Outruffed

The absolute satisfaction of knowing yours is the biggest, silliest ruff out there. Also a fine example of the implications of ruffs for hair-dos.

https://twitter.com/gcseabourne/status/1241398414954369024

 

  1. Ruff justice

The the humble and charming Sir Edward Coke – ruthless misogynist, show-off and snappy dresser.

https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Edward_coke.jpg

See the source image

Then there’s the picture above – the ‘beard squeezer ruff’ – right up under the ears too 0 astounding.

  1. Elizabeth R[uff]

Was there ever any doubt – this one has it all: the spectacular ruff, the puffy sleeves, the hair … apotheosis of the ruff – ruff as neck-halo, almost.

https://en.wikipedia.org/wiki/Armada_Portrait#/media/File:Elizabeth_I_(Armada_Portrait).jpg

 

OK, good to get that off my chest. Or neck. Or whatever.

 

6/9/2020

Update 9/9/2020

Bubbling under…

Not quite worthy of a place on the Completely Official Ruff Pics Top Ten, but may get there in time …

 

[Sc]ruffy

This picture looks as if it has had a bit of early modern photo-shopping. That hat is so 2D. But it’s the ‘ruff almost meets hat’ and ‘scraggy beard’ combo which is worthy of recognition:

https://twitter.com/WelshBiography/status/1303580143630204928

 

Well hello doily!

An honourable mention in the ruff-accessorising category goes to this gent – another Coke – who has cut up a doily and stuck it to his hat and cuffs, to cheer up his look. Also love the detail of shadow on his ruff from his little pointy beard. Marvellous.

https://en.wikipedia.org/wiki/John_Coke#/media/File:Johncoke.jpg

Take the ruff with the smooth

William Cecil sets off his hat/ruff/beard combo with a lot of velvet. Marks for detail in relation to the ‘hand ruff’ cuffs (why not make your wrists just as uncomfy as your neck?) and that emphatic rod (virga – definitely has subtext…)

https://twitter.com/HistParl/status/1305114197911535616/photo/1

 

Not even close …

I am afraid this chap just gets it all wrong. There really is no point in ruffing if your ruff is overshadowed by a brushed beard and natty hat. Yes I know it was early in ruff history, but still…:

What about this one – excellent illustration of variation of ruff angle: James VI of Scotland in the 1580s, ruffed at a very steep angle indeed – going full ‘John the Baptist’s head on a plate’: the head and body seem to be completely separate.  Portrait of James in 1586

And, new in on 5/11/2020 it’s this veritable neck-tutu from Henry Howard, earl of Northants, d. 1614 (from https://blogs.bl.uk/digitisedmanuscripts/2019/11/coppie-the-words-but-burne-this-paper.html:

Portrait of Henry Howard Earl of Northampton

This one – can’t quite put my finger on what it looks like: meringue?

Ruffs: it will never be enough

Well, it would seem that my ruff-obsession remains. Entirely unable to help myself commenting on two more instances of ruff-age, which turned up on Twitter:

Ruff work

This one is a lovely scene of friendship and pastimes, but I can’t help but wonder (yes I know that is rather C. Bradshaw) whether it might have been easier to sew, or to cuddle a child, without the impediment of a ludicrous and extensive folderol about the neck. There must surely have come a point at which the ruff interfered with visibility of the hands or piece of embroidery (directly or because of its shadow). At the same time I would be a bit disappointed to find out that ruffs were not actually worn all the time like this, and it was just a bit of an artistic convention.

Isabella Rosner on Twitter: “I just learned about this image of women embroidering in the @britishlibrary’s friendship album of Gervasius Fabricius zu Klesheim made between 1603 and 1637 and I truly cannot stop thinking about it. Where has it been all my life?? https://t.co/27RF0gjvqL” / Twitter

Ruff sketch

Feast your eyes on this multi-layered monstrosity. It puts me in mind of those foam collars worn by people with a whiplash injury, or – in a certain sense – the ‘cones of shame’ worn by dogs who have had an operation. No way Frankie would be licking his stitches with this thing on.

Gray’s Inn (@HonSocGraysInn) / Twitter

Gray’s Inn on Twitter: “Did you know that the Library holds a collection of pre-1800 books, including a collection of the works of Francis Bacon? Whilst the Library is closed you can find out more remotely here: https://t.co/ohEQOmDWhL https://t.co/PNI0NOuJHf” / Twitter

14/1/2021

 

More treats for ruff-watchers here: ignore Charles (casually wearing a suit of armour – like you do; what this? I just put on the first thing that was lying about in my room …) and look at the necks of (i) the Infanta (is that a furry ruff? What would we call that? A fluff?) and (ii) Buckingham – who is sporting the sort of antimacassar thing I remember from my grandmother’s sofa. Ruffs and silly neckwear clearly still holding firm in the 1620s.

John McCafferty on Twitter: “18 Feb 1623: Charles I & Buckingham set off for #Madrid #otd disguised & under false names to go courting the Infanta Maria, sister to Philip IV #otd. They arrive on 7 March https://t.co/0O9ewSkAtu” / Twitter

18/2/2021

Legal History, Slavery, Colonialism

The last few weeks have been full of news of protest and direct action relating to racism, slavery and colonialism. As no one in Bristol can have failed to notice, it has been the week when the most prominent statue of slaver Edward Colston finally fell.

At the place where I work, the University of Bristol, this has brought to the forefront of minds  various issues to do with naming of buildings, and the University logo. The names of families whose wealth derived from slavery are prominently commemorated here, and the emblem of Edward Colston, a dolphin, is included in the University logo. These names and the logo are under review now – and quite rightly (though possibly putting out a tweet to announce this and … using the Colston- commemorationg logo to do so … was not the best call). Both the University and excellent and doughty scholars within it, as well as committed historians outside academia, have been looking at these issues for some time, but recent events have lent it all a particular urgency, and have also drawn in a much wider group of academics who know that we should be doing more, and faster, to try and make the education we offer both inclusive for all students, and also sufficiently energising and mind-expanding to cause positive change in the local community and the wider world.

I have, for many years, run a unit on Legal History for our Law undergraduates. It has always attracted excellent, sparky students who are alive to injustice, including racial and gender injustice, in the world. We have plans to include more on this in the next academic year. I dare say the issue of statues, putting them up, pulling them down, will feature. At the moment, though I am thinking about a couple of other issues: how the common law and common lawyers were implicated in slavery and colonialism, and how Legal History itself has been affected by having been developed as a discipline in the heyday of colonialism and racism. There is a lot to think about, and to do – and, as a medievalist rather than an expert on later periods, I am going to be synthesising the work of other, expert, scholars where I can find it – but it feels as if Legal History needs to put its metaphorical shoulder to the wheel.

Some of the questions which occur to me straight away:

  1. Is there a general survey of lawyers (or legal institutions) as slave-holders? I have put out a Twitter bat-signal to try and see what there is ‘out there’, having drawn something of a blank in my own preliminary searches – I suspect that there might not be, though there are sections and statements in various, disparate works. If there is not such a general survey, how can a start be made on this? Individual biographies are one way to go, I suppose, as well as checking the writings of lawyers themselves. It would be particularly interesting to make a start on lawyers in Bristol …
  2. In what ways has common law doctrine been implicated in slavery, racism, colonial projects? (Huge – obviously – and equally obviously there is excellent work here by historians, but it also seems that there are gaps with regard to more doctrinal (‘dry’?) parts of law, and areas in which a bit of imagination, and consciousness of the issue, might bring up a wider set of connections).

This morning, a cross check in the Oxford Dictionary of National Biography has shown me some interesting lawyer/slavers, which is a start for no. 1 at least

[And on the Bristol-Colston front, I just came across another example of his ‘philanthropic’ ubiquity in Bristol – there is a charitable foundation called the Dolphin Society, which might want to be a little firmer in its dissociation from Ed and his murderous works … https://www.dolphin-society.org.uk/history

Also the ODNB (updated 2008?) has EC article entitled  ‘Colston, Edward (1636–1721), merchant and philanthropist‘. Very neutral…]

12/6/2020

13/6

There is more ‘Colstonalia’ in Bristol – and more websites which might want to consider saying something stronger about the wrongness of slavery. Today’s example (accessed 13/6) is this one https://www.about-bristol.co.uk/chu-04.asp

17/6

A programme which those who are not regular watchers of Welsh language TV might have missed …

https://www.s4c.cymru/clic/programme/532330299

Dylan ar Daith – S4C programme (Welsh – with subtitles!) on Thomas Picton, governor of Picton, cruel even for the times. Interesting to see the Welsh coming to terms with not having been pure with regard to slavery. Some stories I had not heard here – worth a watch to see what you think of its tone.

 

Don’t estop me now: credibility and comments on intelligence

-Warning: explicit Land Law content. If you do not want to read musings on land law, stop right now …

James v James [2018] EWHC 43 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2018/43.html

Having had a year away from land law teaching, I am catching up on recent cases, including this one on proprietary estoppel (as well as testamentary capacity). I am not going to say anything about the actual legal points, despite the fact that this is what I am supposed to be preparing, but will comment on another interesting aspect of the approved judgment: a tendency to elaborate upon and explain the decision making process in terms of views about individuals (I think of this as the Eggheads tendency – after the quiz show where people can’t just say the answer is b, they have to ‘talk us through’ the thought-process which has led to that conclusion).

There is detailed discussion of  various witnesses:  HHJ Paul Matthews does not restrict himself to saying he believes X or believes X more than Y, and some of this material seems to go beyond credibility and into intelligence or education. For example, one of the major characters was, the judge found,  ‘a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning’. [8] And ‘For the most part, I think that [S.] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true.’[9] Some of this is honesty/credibility-related, but calling somebody ‘slow’ and criticising their reading seems to go beyond that.

 

In relation to a group of female witnesses, the judge shared his impressions at [11] that two were ’quiet and calm’. One ‘rather shy but clear and straightforward, but another, while she ‘gave evidence in a quiet tone’ also ‘ avoided eye contact and her body language suggested internal conflict.’  Some material for consideration of appropriate female witness behaviour there, I think – plus signs of great self confidence on the judge’s part of his ability to ‘read’ mental state from ‘body language’. I am not entirely convinced that has a place in an official account like this. Another ‘good’ female witness was ‘loyal.. to her husband,’ but ‘distressed by the litigation and wanted it to be over’ [12]. Yet another female witness was ‘a slow witness, with clear, trenchant views’ [13].

 

In relation to an older female witness, there is some doubt, but it is not expressed in quite such critical terms: [14] ‘[S.J.], … although she often took her time to answer, was clear and decisive when she did. Despite her advancing years, she was generally very much on the ball. But she was confused as to [a particular point]. On the other hand, she had little or no trouble in following accounts. It is plain that she had a head for business. Sometimes her answer was that she could not remember things, though I noted that that was the answer more often given when the question was a difficult one, not susceptible of a simple answer in her side’s favour. She also appeared confused about [another point]. Her answers did not square with what she said in her witness statement…. I have accepted her evidence without reserve where corroborated by other independent evidence, but otherwise with more caution.’ The first part of this sounds a bit like ‘She’s marvellous, considering …’ – a little patronising?

 

Also interesting is the decision of the judge to mention his views as to the competence and intelligence of a female solicitor in the case: ‘She struck me as a highly competent, intelligent solicitor …’ [16] while in  dealing with a male solicitor-witness, [17], there was, apparently, no need to affirm his intelligence. Likewise the male experts were ‘as one would expect … highly professional’ [18]. Might have been best avoided?

 

Clearly, the format of a civil trial requires a judge to make decisions about credibility, and comments on parties are not new, but I do wonder how it helps to hear that the judge does not rate a party’s speed of thought, and whether the study of ‘body language’ is now a respected and scientific subject, taught at judge school.

For a contrasting approach, see another proprietary estoppel case, Habberfield v Habberfield [2018] EWHC 317 (Ch), in which the judge is much less … well … judgey about individuals, and almost entirely sticks to saying which evidence he prefers on particular points. We don’t learn who is intelligent and who is ‘slow’, and yet it doesn’t detract from our understanding …  [no idea why this bit has gone red!]

Park up your troubles: newspaper coverage of neighbour dispute cases

Land law thoughts: warning – almost completely not about Legal History!

Two areas of legal interest which are more frequently covered by the right wing press than the rest of what used to be called ‘Fleet Street’ are (i) succession (when there is a family dispute); and (ii) neighbour disputes. I think there’s a Ph.D. or at least a dissertation for somebody on the way these are covered, but until it appears, here is a start in pulling together some thoughts on the neighbour disputes ones, prompted by a report in this morning’s Mail: https://www.dailymail.co.uk/news/article-6172095/Neighbours-ten-year-war-30-inch-parking-space-ends-warring-parties-paying-bills.htmlc

The case involved use of a parking space at a property in Berkshire. If the owner parked in a particular part of the space, that restricted or denied access to the neighbouring property’s back garden.

As it’s the Daily Mail, and I have read a number of such articles there, I was not surprised to see the piece highlighting the following:

  • The amount of money spent on legal action (£120,000)
  • The length of the dispute (10 years)
  • Descriptions of the disputed land: ‘a 30 inch parking space’ (imperial, obviously) and ‘a thin strip of concrete’ (concrete – a bit modern and insignificant). In fact, although it almost suggests this is an ownership issue, it isn’t: it’s an easement case.
  • A kick for lawyers, even though the piece also makes it clear that it could have been settled amicably, and the parties are ‘stubborn pensioners’ (not quite on-brand there, Daily Mail) who have engaged in ‘bickering’ and a ‘frenzy’ of legal action. The implication seems to be that lawyers encouraged the legal action (those ‘pettifogging’ slurs go deep into history) even though I would be very surprised if lawyers involved in such a case did not try and encourage the parties to come to a sensible agreement.
  • Legal bills described as ‘eye watering’ – without any context as to what was provided by the lawyers (over ten years?). It may be that they over-charged, but it isn’t possible to tell from this. The disproportion is really between the value of the land/right in question and the amount of money: and unless the evil lawyers were forcing the parties to litigate against all reason, that’s hardly their fault.
  • A photograph of the ‘winner’, who gets the right to use the path: pictured with a walking aid, though, in fact, according to the story, he does not live at the property, but rents it out. In a way, this makes the story look like ‘nasty people stop mobility-impaired man using access to his house’, when it is more ‘people use car space in a way which potentially reduces financial gain on second home’.
  • Extra facts – the applicant ‘lives with his wife’ in an ‘impressive £1.5 million 5 bedroomed house in nearby village of Cookham. The losing respondents, however, had moved down South from Scotland. This may help the DM reader to decide who is the more sympathetic ‘stubborn pensioner’ in the dispute.

A more legal explanation (including the fact that it’s about easements and prescription – lost modern grants, Prescription Act and all that getting an airing) can be seen at: http://www.bailii.org/ew/cases/EWLandRA/2018/2017_0077.pdf

This is the judgment of the Land Registration Tribunal. Here, we have metric measurements (the horror!) and some ‘nice points’ about exactly how acquiescence is to be understood (still a bit unsatisfactory, it seems to me, but let’s leave that for now), but  almost no criticism of lawyers (it does in fact speak of solicitors ‘taking up the cudgels’ after initial disputes between the parties (para 12) – which seems a little unnecessarily fighting talk-ish). Nothing about Scotland, or the applicant’s ‘impressive’ home.

Lots to compare and contrast, and the makings of an interesting study, if more examples were included.

Legal History Novels

Not being particularly up with recent fiction, I have just got around to reading F. von Schirach, The Collini Case (2011). Wow – how often does a novel turn on legal history, legislation and limitation and (geek heaven) have an appendix setting out relevant provisions. Marvellous. Oh and a good story too…

Reformation Disputation

This scurrilous nonsense was, apparently, found stuck to the door of some church in Germany …

 

Martin L. (the Augustinian Brother who could Do No Other)

 

A Diet of Worms caused constipation

till his guts experienced  Reformation.

He objected to indulgences but still grew stout;

shacked up with a nun, chucked celibacy out;

wrote hot hit hymns, and cool translations

and tied himself in knots over consubstantiation.

His views on Jews can’t be overcome:

he had 95 theses: but tolerance definitely wasn’t one.

 

 

Recent reads September 2017

It is a big task to keep on top of emerging scholarship in Legal History, especially when it’s outside my ‘research period’, but it’s important to try (for teaching and SLS convening, as well as for the avoidance of disappearing in a puff of over-specialisation) so here’s what I’ve been looking at most recently:

  1. The AJLH goes all out for spousal murder

Not one but two articles in this area in the latest edition:

Andrea McKenzie, ‘His Barbarous Usages’, Her ‘Evil Tongue’: Character and Class in Trials for Spouse Murder at the Old Bailey, 1674-1790’,  American Journal of Legal History, 2017, 57, 354–384. Very interesting and well-argued treatment of changes and continuities in conviction rate, defences and sympathies. [On a trivial note: striking numbers of knife-throwing homicides, and mercifully brief reference to the (IMO) appalling epistolary novel, Pamela.]

 Ian C. Pilarczyk, ‘Acts of the “Most Sanguinary Rage”: Spousal Murder in Montreal, 1825-1850’, American Journal of Legal History, 2017, 57, 316–353. As a complete novice in relation to Canadian LH, this was 100% profit for me. Some great (in the sense of terrible) cases here and interesting to see issues of extreme domestic violence in a different social milieu. Lots of alcohol, fewer guns than I might have thought, and some all-too-familiar narratives of domestic horror.

  1. The JLH gets emotional

I was a bit stunned to see that the usually rather conservative Journal of Legal History has,  in 2017’s Vol. 38 no. 2,  embraced the very cutting-edge area of history of emotions. Still getting over it – comments will follow shortly. …

Merridee L. Bailey & Kimberley-Joy Knight (2017) Writing Histories of Law and Emotion, The Journal of Legal History, 38:2, 117-129. This one introduces the area – not necessarily one which would be familiar to JLH readers. It argues for an ‘emotional turn’ in historical study (I have to confess to bridling a bit at ‘turns’ – clearly need to work on that), and gives a clear account of the difficulties and possibilities in the field.

John Hudson (2017) Emotions in the Early Common Law (c. 1166–1215), The Journal of Legal History, 38:2, 130-154, Drawing on decades of detailed study of this period, Hudson considers the inclusion and exclusion of emotion in the treatises and records of the Angevin-era common law. We see mention of fear, affection, anger and spite, amongst other emotions, but also indications that law could be responding to the disruptive power of emotions, and those administering it might consider it appropriate to exclude emotion from legal proceedings, in order to achieve fairness and rationality. I am sure I will be making use of this in my own medieval research, and it has certainly started a few musings about intersections with gender, and contemporary ideas about gender.

Amy Milka & David Lemmings (2017) Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom, The Journal of Legal History, 38:2, 155-178. This article looks at the complicated relationship between the well-known ‘majesty of the law’ idea in relation to criminal justice, and display/use/suppression of emotions on the parts of different ‘players’ in the drama, dealing with cross-currents of rising ‘sensibility’, changing role of the press and changes in legal representation. It is an extremely convincing and thoughtful piece, and managed entirely to overcome my usual emotional response to things about the 18th C [urghhh – sensibility ….]. Going on the UG reading list.

Alecia Simmonds (2017) ‘She Felt Strongly the Injury to Her Affections’: Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia, The Journal of Legal History, 38:2, 179-202, Breach of promise of marriage is a much-ridiculed area of legal intervention, and yet a wonderful way of getting at ideas of gender and damage which prevailed at any given period. Early 20th C Australia is pretty unfamiliar to me, but this was very instructive. Made its argument well. Also well worth a look for its wider relevance to ideas of appropriate compensation for different sorts of damage – and historical contingency of legal attitude to different categories of harm. [And for some charming statements on the veracity of women, hauntingly reminiscent of Hale’s words on rape and witchcraft, see p. 184].

Katie Barclay (2017) Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland, The Journal of Legal History, 38:2, 203-227, And we’re back to spouse-killing. Clearly one of the topics of 2017. Illustrates well the important but complicated role of emotions (and their suppression/absence) in the 19th C homicide trial. Given contemporary understanding of gender, emotion, psychology and the murder/manslaughter boundary, there were clearly some real tactical conundrums in the conduct of such cases.

Overall emotion at the end of this? (See how I am getting into the swing of this?) Happiness! It strikes me as a very healthy sign that this sort of scholarship is being displayed in the JLH. Glad to see a very established figure in UK legal history contributing to this special edition, and to learn what a talented and interesting set of scholars has been gathered around the history of law and emotion.

3. The Selden Society gets bigamous

R. Probert, ‘Double trouble: the rise and fall of the crime of bigamy’, (London, Selden Society, 2015) (SS Lecture for 2013) in which R. Probert upsets some assumptions about levels of bigamy in the 19th C (having previously done a good job revising ideas about levels of cohabitation, and attitudes to cohabitation)

Matters Testamentary: first thoughts on Law Commission Consultation Paper 231, Making a Will

I have just got through the very wide-ranging Law Com Consultation Paper on wills: a huge project, dealing with a important area which needs reform, though perhaps not something which is going to be at the top of T. May’s ‘to do’ list just at the moment.

There are some interesting developments in the ways in which the Law Commission is making its consultations available. Alongside the usual formal document and English summary (still pretty long!), I was pleased to see a prominent  summary in Welsh (Hwre!)  and also the well-thought-out ‘Easy Reading’ version. On this subject in particular, it seems important to get the views of people who would struggle with the usual academic/legal presentation. I do also love the infographics: these seem to have appeared quite recently in Law Com publications. But there is only so far you can go, and ademption and fraudulent calumny would not be easy to illustrate. In the end, this is a pretty involved area, and I suspect that most of the respondents to much of the consultation will be academics and/or lawyers.

Given the complex nature of the subject matter, the main document does a good job of setting out the areas which might be changed or questioned, as clearly and succinctly as possible. It is, however, rather too quick to assume that testamentary freedom is of overriding importance to a large majority of people (see, e.g. 1.12). If press reactions to the recent Ilott case show us anything, it is that ideas about personal responsibility for family members and dependents, and wider responsibility to society are also important to many of us. The extent to which rights over property should outlive us, allowing our dead hands to retain some grasp over assets which were ours in life, is and should be a matter for debate. Attention to the history of all of this demonstrates that English common law’s championing of testamentary freedom is relatively recent and has, at almost all times, been subject to limitations.

There is plenty which is picturesque in the language of succession law(e.g. I’ve always liked the idea that a will is ‘ambulatory’ – picture a formal document wandering around the place) and plenty which seems amusing about wills written on eggshells, and the many and various ways in which people can get things wrong, but there are also worrying cases, particularly those regarding vulnerable testators and the possibility of their being pressurised or tricked into making their wills in particular ways.  The paper makes some interesting suggestions about how to try and enable vulnerable people to make wills, while guarding against dubious behaviour on the part of those around them. In doing so, it has to deal with the messy state of play surrounding pleas of’undue influence’ and ‘lack of knowledge and approval’. The idea of some sort of support scheme for people whose capacity is diminished but not wholly absent, allowing them to make a will, seems humane and in line with international obligations, but whether this should be in any way state funded is much more difficult. Where should enabling those with assets to leave to depart from intestacy rules lie on a list of priorities which includes much more basic medical and social care needs? In addition, the gentle suggestion that medical and care staff should not be discouraged by their institutional policies from becoming involved in the will-making of their patients (1.33) seems to me to be questionable. Is facilitating ‘testamentary freedom’ really part of the appropriate role of these people and institutions, so that they should involve themselves in will-making, and the attendant risk of future litigation over the will of a patient, rather than looking after other patients who do not have assets to distribute? That would seem to be transforming this ‘freedom’ to a right – and one which trumps various, more basic and universally accepted, rights of others.

The paper has a go at the implications and opportunities of computing and the internet. Yes, Land Lawyers – shudder with me at the echoes of ‘e-conveyancing’- there are suggestions concerning the possibility of  e[lectronic] wills. The lessons of e-conveyancing seem to have been learned, though, and there is no great fanfare about this, just some discussion of the possibilities and difficulties and the suggestion of an enabling provision to deal with this as and when the technical difficulties are cleared up. So despite the Mirror’s excitement (http://www.mirror.co.uk/money/if-die-you-can-xbox-10796411 ), it is probably unlikely that we are about to see wills made by drunken text message.There is also some work on various electronic property or ‘property-adjacent’ things. I do look forward to seeing hardcore property lawyers getting into debates about rights to characters in online games [though perhaps they would enjoy ‘In the Toils of a Harlot’: the online undue influence game].

At times, reading this made me wonder about the role and process of consultation. On the one hand, too great a role seems to be given to those who choose to reply: thus, some of the consultation questions look as if they would be better answered by a solid empirical study, rather than by way of a question thrown out to all who wish to involve themselves – e.g. q 2 about experiences of the impact of making wills and disputes over wills after T’s death. Wouldn’t we get a more solid answer if there was actually a proper survey on this? On the other hand, those who choose to respond to the consultation may feel that they are regarded as being less important than those already sought out for ‘pre-consultation’ and labelled ‘stakeholders’. I am not fond of this word in any case, except in a gambling context or in relation to Buffy the Vampire Slayer. It’s an unthinking borrowing from corporate-speak of the worst kind, and it needs to stop. Leaving that aside, calling some people ‘stakeholders’ appears to me to give prominence to certain individuals or groups over the public at large. In this context, I am not sure that anyone should be regarded as having more of a ‘stake’ than anyone else: this law applies to all of us. As with the totemisation of testatory freedom, it plays down the impact on the public of changes to private law. It may well be sensible to talk to particular individuals and groups before writing a consultation document, but that is more to do with their particular expertise than their ‘stake’. Of course, we don’t like using the ‘e-word’ these days, do we?

GS 15/07/2017