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 )- 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.





Brand on medieval judges and juries

Paul Brand (2016) ‘Judges and Juries in Civil Litigation in Later Medieval England: The Millon Thesis Reconsidered’, Journal of Legal History, 37:1, 1-40.

Professor Brand takes a less pessimistic view than did Millon of whether medieval juries actually followed what appeared to be the ‘official’ legal rules (as seen in legal texts) as opposed to making decisions based on their own discretion. Looking at plea roll cases c. 1300, he finds a clear connection between what the rules appear to have said should happen, and what did happen. Judges and courts helped keep decisions consistent with the rules, and the pleading process, in framing issues sent to the jury, also ensured some control.

Impeccably argued and bristling with hard-won documentary evidence, this needs the reader’s full attention, but is worth the effort. It will be an important point of reference for anyone looking at medieval law, and a check on the common temptation to look for exceptions to rules, to emphasise dissent and resistance, in legal history. This article is a powerful reminder that medieval judges and juries often pulled together, and law texts might be reflected in practice.

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.

Swooning and sexual offences: recent article

Thoughts on Victoria Bates (2016): ‘Under Cross-Examination She Fainted’: Sexual Crime and Swooning in the Victorian Courtroom’, Journal of Victorian Culture (2016)

As an openly medievalist legal historian, I am not a regular reader of this journal, but am glad that I was put on the trail of this very interesting study of the fascinating but frustrating world of the Victorian trial. There is so much information, in comparison with the trials of earlier eras (and – hurrah – no Latin), and yet it often feels as if the most important things remain annoyingly opaque.

The author makes a good point about the various meanings and readings of fainting/loss of consciousness in women, in connection with sexual offences and sexual offences trials. The volume of court records studies is such as to impress the most train-spottingly completist legal historian (guilty), and the material brought in here is a valuable addition to the burgeoning literature on sexual offences, and attitudes to them, in the nineteenth and twentieth centuries. The whole thing got me thinking about whether the use of the swoon in descriptions of sexual offences was something of a compromising device – getting a jury on the side of the prosecutrix in a trial for an offence less than rape (most of the cases covered here are ‘lesser offences’), whilst perhaps making the facts as presented less of a ‘fit’ for rape (even if the act was in fact completed) because there would be a problem in relation to lack of demonstrated absence of consent.

Anyway – a good piece of work and worth a look.

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: 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.



Registering objections (a rare foray into the modern world)

The government is asking for responses to its proposals for privatisation of the Land Registry:  Responses by 26th May.

This might not be an obviously exciting topic – the body which investigates and records land titles probably isn’t at the forefront of most people’s minds. Even land law students tend to yawn at the mention of land registration. But it is important – nobody who buys or sells a house can avoid involvement with the Land Registry. It is compulsory to make entries on the Register whenever land is sold, or dealt with in a variety of other significant ways.

The Land Registry does several important jobs which need to be done securely and competently. Accountability and transparency are also crucial. It is hard to believe that a move into the private sector would maintain standards in any of these areas, let alone improve them. There was considerable opposition to this move last time it was tried (under the Coalition) and the objections still apply.

The Land Registry is a (rare) publicly-owned body which does not lose money. Selling it off raises suspicions that the government is planning a quick sale for cosmetic purposes: ‘selling the family silver’ at a knock-down price, (see also the recent Royal Mail privatisation).

It also has to be said that it doesn’t look good to be doing this at a time of disquiet about hidden assets and offshore trusts and companies: whatever the talk about safeguards and maintaining access, would there really be any chance of getting the sort of information from a privatised Land Registry which allowed Private Eye to survey the proportion of English and Welsh property owned by offshore companies ( )?



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 …)

‘Friends and enemies: ‘suffragette’ incidents in Abergavenny, 1913’

Gwen Seabourne, ‘Friends and enemies: ‘suffragette’ incidents in Abergavenny, 1913’

(abstract of a paper given at the University of Bristol Law School, June 2014)  

The National Eisteddfod of Wales was held in Abergavenny in August 2013, and, leading up to it, there seemed to be particular reasons to suspect trouble: the militant suffragettes’ arson campaign was at its height. Wales, Abergavenny and the Eisteddfod had been targeted in the recent past, and two suffragette hate-figures, Reginald McKenna, the Home Secretary (and north Monmouthshire MP) and Lloyd George, Chancellor of the Exchequer, were expected. An anonymous Welshman threatened, in a letter to the press, to shoot any suffragette attempting to disrupt the Eisteddfod. Extra police were hired and other security precautions taken.


There was, in fact,  no direct attack on the Eisteddfod. Suffragettes were, however, reportedly present, leafleting. There was some apparently genuine destruction by ‘militant suffragettes’ in Abergavenny (the burning of a cricked pavilion and a hayrick), and also an case of a young man from Abergavenny creating a hoax ‘suffragette’ incident in nearby Llangattock shortly afterwards.


Until comparatively recently, there was an accepted narrative that suffrage campaigning, and particularly militant violence, was largely not acceptable to liberal, nonconformist Wales. It was not, however, entirely true, and it bears some reconsideration: see the painstaking work of Beddoe, Masson, Johns and Wallace,


The Abergavenny cases are good correctives to a too simple view of Wales as not interested or hostile to ‘the cause’ and the WSPU militants in particular as disruptive middle class English imperialists trampling all over cherished Welsh cultural institutions. It is worth considering why setting up this opposition was and has remained attractive.


‘Welshness’ is not and was not, in any case, an unproblematic thing, so that it is unrealistic to expect (or construct) a single ‘Welsh’ response to, or view of, suffragettes. And if Welshness in general is problematic, it is particularly so in Monmouthshire in general, and Abergavenny in particular: one only has to look at the Abergavenny Chronicle’s reports of wrangling over the holding and financing of the Eisteddfod there to see that that is true.


It is interesting to note, by way of postscript, that the version of Welshness of the Eisteddfod, with its emphasis on the language would have its own ‘militant’ phase, half a century and more later.

[I plan to publish a full – length paper on this topic in due course. For further reading, see, in particular, A.V. John, ‘Run like blazes: the suffragettes and Welshness’; and R Wallace, The Women’s Suffrage Movement in Wales, 1866-1928 (Cardiff, 2009).]

New work on removing the marital rape exception

Worth a look, new and interesting article: Adrian Williamson (2016): The Law and Politics of Marital Rape in England, 1945–1994, Women’s History Review, online early release. Discussing the slow move to change in the law. If this is taken along with the article about the use of wives’ adultery in homicide cases, by Kesselring, (see my recent blog post) it reinforces the message that one of the biggest things which has to be overcome, when trying to improve the lives of women, has been – and is – the misinterpretation of history, to give some spurious form of legitimacy to rules which disadvantage women (‘look – this has long historical roots: that has to mean something, doesn’t it?). Kesselring pointed out the relatively short and somewhat shaky background to the idea that husbands who killed wives caught in adultery should receive lenient treatment. Here, Williamson deals with the marital rape exception, including the way in which Matthew Hale’s remarks on the subject were transformed into holy writ.

From the point of view of my own research, this is something to link into the work on suffrage campaigns (thinking about tactics for changing law, and about tactics used to resist improvements for women) and, more widely, it is something to bear in mind when looking at the extent to which legal history can be misused in the interests of dominant groups of various sorts. Some of the material here is well known to legal scholars – e.g. the material on low reporting and conviction rate in rape – but there are some interesting reminders of 19th and 20th century case law in this area, and of the pronouncements of different politicians, judges and academics (Lawton, Fairbairn and Glanville Williams in particular – a very topical Trump reference in the conclusion), and the point about there being a struggle right to the end to get rid of the exception, rather than there being any inevitability about it, is an important one.

There is often a strange amnesia, or instant mythologising, which occurs after a progressive change. Opposition is de-emphasised, everyone was somehow always in favour of the change, and it was always only a matter of time before things were put right. As the discussion here shows, change needs dedicated action from people who are prepared to be opposed, belittled and ridiculed.


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