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)