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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

Poetic Injustice

Update 2020

I have been inspired by the sheer brass neck of late 19th C/early 20th C legal historian C.S. Kenny in writing a book which JUST HAS NO CONCLUSION.  No sign off – just stops dead! (CS Kenny, The History of the Law of England as to the effects of marriage on property and on the wife’s legal capacity (London, Reeves and Turner, 1879).

I always struggle with a conclusion – which may say something about the rather over-ambitious or amorphous nature of the topics I seem to choose, or (as I prefer to think of it) it may suggest that not all writing needs a conclusion of the sort which, after C.S.K.’s time, became de rigeur.

It strikes me that that structure is very stereotypically ‘academic macho’ – here’s my point, I’m going to stick to it, there, wasn’t I right? Perhaps it’s time to look at things differently – and, yes, I know I’m messing with the etymology, but what about a more cyclical style – a ‘womanuscript’, if you will …

Womanuscript

It may be that it will be viewed

As lacking in style, rather crude

Not to end things just so

With some show off bon mot

But too bad, I choose not to conclude.

14/6/2020

 

 

2017: OK, I admit it: this is not Legal History. Probably not even legal, come to that… But I feel moved by the spirit of New Year to post this fine example of intellectual endeavour. Don’t think the LQR is going to want it.

Bird bath

Thrushes rush in, wrens seem keen

and sparrows splash around together,

But will they really get me clean

and do they like Imperial Leather?

GS

1/1/2017

 

Having another poetic moment – feeling the pain of my final year students … this is for them

 

Life unexamined:

easily sneered at by those

not sitting finals.

18/5/2017

 

This, apparently, was found stuck to the door of a 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 wasn’t one.

 

19/5/2017

And this is a genre of poetry which will surely catch on: the modern observation linked to a medieval law-text …

Bracton’s Sister’s Distant Descendant in the Gym Changing Room

That law of persons bit in the old book,

sorting by status (and taking the odd swerve

through hermaphrodites and the nature of belts)

somehow missed out a key division:

the one between people who,

when they see you post-swim,

half dried and standing on one leg,

correcting the inside-outness of your knickers,

can wait a moment to get to their locker,

which you are, inadvertently blocking,

and those who

Excuse Me!

just

bloody

can’t.

 

9/7/2017

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.

 

 

 

 

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.

The Damsel of Brittany rides again

 

Eleanor of Brittany (1182×1184-1241) is somebody who kept popping up in my research on female imprisonment, and I tried to draw together some thoughts about her in an article back in 2007: ‘Eleanor of Brittany and Her Treatment by King John and Henry III’, Nottingham Medieval Studies 51 (2007): 73–110. Given this, I was very interested to see a very good new article focusing on this unfortunate and under-explored Angevin princess – Stephanie Russo (2016) ‘The Damsel of Brittany: Mary Robinson’s Angelina, Tyranny and the 1790s’, English Studies, 97:4 (2016), 397-411. This looks at the creative use made by the late 18th century novelist Robinson of the story of Eleanor of Brittany. Eleanor – or a fictionalised version of her – features as part of the mental world of the more modern characters in the epistolary novel Angelina, and as a point of comparison for some of the characters’ own situation.

Robinson’s Eleanor gets a bit of a romance – wouldn’t it be good if that was actually true, if there had actually been some such highlight in her life? But sadly very unlikely! It is rather intriguing that Robinson was a Bristolian by birth – did the story of the princess imprisoned in Bristol castle linger even in her day?

Anyway – good to see some attention being paid to Eleanor. I am secretly hoping that the current craze for digging up lost royals (Richard III, Henry I etc.) might mean an increased chance that somebody might have a go at locating her in Amesbury, and maybe find some clues to why she was apparently so keen to be buried there rather than Bristol (or why Henry III chose to say that she was).

Who owned Wales?

There’s a great opportunity to help make a fantastic digital resource relating to land in Wales in the mid-19th century. Using tithe maps, the Cynefin Project is creating a picture of land ownership, occupation and use, as well as the increasingly unpopular tithing system, across the country. The documents are not too difficult to read, and there is a wealth of fascinating material here – about who did what, and who owned what. Once it is all done, this will be a really valuable resource, for those interested in particular individuals, places, industries. I have already noticed some interesting material on how much land was held on trust, and concentrations of ownership in particular individuals (and, in one I’ve just done, Eton College). Feeling more than a little Rebecca-Rioty about it all!

Find the project at: http://cynefin.archiveswales.org.uk/en/ and do a few pages!

[22/06/2016] Working my way through some parts of Monmouthshire. Fascinating material on use of Welsh and English in this border area. Mostly English personal names, but still a lot of Welsh names for fields. There’s a Ph.D. in there for somebody.

 

 

The Lord and the Law Part IV: Capital punishment in the Lord Peter Wimsey novels of Dorothy L Sayers

The date of writing and setting of the Wimsey novels means that the killers unmasked by the aristocratic sleuth are liable to execution by hanging. It is not something from which Sayers shrinks, nor something which Wimsey can ignore.

There are anti-hanging voices in the novels. The ‘fast’ and drug-addled Dian de Momerie in MMA expresses negative sentiments about the death penalty, for example, telling Wimsey ‘I went to a murder trial once. There was a horrible old man, the Judge – I forget his name. He was like a wicked old scarlet parrot, and he [gave the death sentence] as though he liked it (MMA loc 3291). In GN, Miss Barton, a rather ridiculous figure, is also opposed to capital punishment. She bases this on a sympathetic view of murderers: ‘Our attitude to this whole thing seems to me completely savage and brutal. I have met so many murderers when visiting prisons, and most of them are very harmless, stupid people, poor creatures, when they aren’t definitely pathological.’ (GN, 36). This view is put down by our heroine, Harriet Vane, who comments that Miss Barton ‘might feel differently about it …if [she had] happened to meet the victims. They are often still stupider and more harmless than the murderers. But they don’t make a public appearance. Even the jury needn’t see the body unless they like. But I saw the body in that Wilvercombe case – I found it, and it was beastleir than anything you can imagine.’ … ‘And … you don’t see the murderers actively engaged in murdering. You see them when they’re caught and caged and looking pathetic. But the Wilvercombe man was a cunning, avaricious brute, and quite ready to go on and do it again, if he hadn’t been stopped’ (ibid.)

A more unusual view is expressed in Gaudy Night by Miss Edwards. While she feels that hanging is ‘wasteful and unkind’, she does not think murderers deserve to be ‘comfortably fed and housed while decent people go short’, and concludes that, as a matter of economics, ‘they should be used for laboratory experiments’. Lord Peter is not keen. (GN, 408).

Wimsey has at some point seen an execution, the implication being that he felt it his duty, if he was involving himself in the investigation of murder, and the conviction of murderers, to take some responsibility for the consequences of so doing: ‘I got permission to see a hanging once… I thought I’d better know … but it hasn’t cured me of meddling.’ (BH, 430). Clearly he has thought about it deeply, and put himself in the position of the condemned prisoner: ‘They give them something to make them sleep … It’s a merciful death compared to most natural ones … It’s only the waiting and knowing beforehand… And the ugliness. … Old Johnson was right, the procession to Tyburn was kinder … “The hangman with his gardener’s gloves comes through the padded door” (BH 430-31). It is made clear that he does feel his responsibility: he suffers from ‘nervous depression’ after an execution, when he has been involved in the case. (TD, loc. 309, and particularly in the last chapters of BH). Wimsey finds it particularly difficult to contemplate hanging a woman, despite an intellectual conviction that there should be equality here:‘Peter was conscious of a curious reluctance. Theoretically, he was quite a ready to hang a woman as a man, but the memory of Miss Twitterton, frenziedly clingng to Harriet, was disturbing to him.(BH, 163).

The overall view of the capital punishment question from the leading characters is positive in intellectual terms, but it is clear that the whole business is emotionally troubling. His views on and involvement in capital punishment provide some of the more thoughtful and thought-provoking moments in the Wimsey books, and give some interesting insights into contemporary non-abolitionist attitudes.

GS 18/9/2015

Abbreviations

WB                  Whose Body? (1923) set 1922?[1]

CW                  Clouds of Witness (1926)

UD                  Unnatural Death (1927)

LPVB              Lord Peter Views the Body (short stories) (1928)

UBC                The Unpleasantness at the Bellona Club (1928)

SP                    Strong Poison (1930)

FRH                Five Red Herrings (1931)

HHC               Have His Carcase (1932)

HH                  Hangman’s Holiday (short stories) (1933)

MMA              Murder Must Advertise  (1933)

TNT                 The Nine Tailors (1934)

GN                  Gaudy Night (1935)

BH                  Busman’s Honeymoon (1937)

SF                    Striding Folly (short stories, published 1972)

 

TD                   Thrones, Dominations (by Jill Paton Walsh, based on a sketch by Dorothy L Sayers, 1998)

 

 

Dealing with medieval aliens

A new article concerning the denization process in medieval England has appeared in the English Historical Review: B. Lambert and W.M. Ormrod, ‘Friendly foreigners: international warfare, resident aliens and the early history of denization in England c. 1250-1400’ EHR 130 (2015), 1-24. A major question which the article addresses is why royal intervention in this area, granting denizen status to aliens, began when it did, in the late fourteenth century.  Disagreeing with previous suggestions of Romanist influence in the Chancery, legislation and long-term developments, the authors make out a case for the influence of practices in the late 1370s, connected to dealing with citizens of enemy countries during times of hostility. Interesting reading, particularly in the current climate of heated debate about immigration.

The Law Front Part II

By 1916 more cases dealt with facts which had arisen during war-time, including enemy ships taken as prize, and maritime law problems arising from the declaration of war while a cargo was in transit to Germany, how to treat a company with alien enemy shareholders (Daimler), the legal consequences of a merchant ship being sunk by enemy action, whether a sailor who had been imprisoned in Germany because his (merchant) ship was in a German port at the outbreak of war was entitled to wages during his imprisonment (Horlick v Beal [1916] 1 AC 486], and issues of nationality and internment (Ex parte Weber [1916] 1 AC 421). ‘Normal’ issues continued to dominate, however, including disputes about tax, local government, highway maintenance, labour law and land law. More diverting subject matter included the trade mark of a cat on gin, and whether it was infringed by a ‘puss in boots’ picture on another brand of gin (Boord v Bagotts, Hutton and Co. [1916] 1 AC 382. And there was time in Jones v Jones [1916] 2 AC 481 to decide that imputations of adultery to a schoolmaster, unless connected to his calling, did not amount to slander, unless special damage was shown. This case is notable for a thorough discussion of the history of defamation at common law, and, perhaps, for the judges’ inability to understand just how seriously an imputation of adultery would be taken in the decidedly un-metropolitan North Welsh location of the dispute.

To be continued …