Tag Archives: legal history

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).

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 …)

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.


Prisons and aliens: new articles of legal-historical interest, January 2016

Prisons and aliens: new articles of Legal Historical interest, January 2016

Two to note on ‘early release’ from Historical Researchhttp://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1468-2281/earlyview

J.M. Moore, ‘Reformative rhetoric and the exercise of corporal power: Alexander Maconochie’s regime at Birmingham prison 1849-51’, explores the wide gap between what was said and what was actually done by this former Australian penal settlement gaoler in the new prison at Birmingham, and provides an important correction to  the former positive view of his practices. Maconochie’s ‘mark system’ ideas of task-based sentences leading to mental submission are quite well known. The lack of political approval of a trial of the mark system in the domestic context is interesting, however, and the evidence on actual practice in Birmingham given here is, however, illuminating (in a dark way). Unable to link tasks/behaviour and length of sentence, Maconochie linked these things to food and conditions in a very harsh way, and was rather keen on flogging boys and imposing lengthy physical restraints on women. A lack of respect for the need to record such punishments, and the use of his family members in various unofficial roles in the prison combine to give the impression of an arrogant man who did not respond well to frustration, and was determined to try and push through his theories, despite opposition. (I would like to hear more about his wife’s attempts to use mesmerism and homeopathy in the reform of prisoners though).

B. Lambert and W.M. Ormrod, ‘A matter of trust: the regulation of England’s French residents during wartime, 1294-1377’ looks at the treatment of suspect aliens during periods of uncomfortable relations with France, under the first three Edwards. The article notes the flexible response of government at various levels to the ‘problem’ of aliens. ‘Nationality’ was not regarded as a simple or conclusive matter at this point, before the late-14th C introduction of the formal process of ‘denization’ became established. Important differences between the treatment of ‘alien priories’, nobles and those of lower social rank are noted here, with the suggestion of a move from heavy to more flexible regulation in the case of the last group which may be at odds with expectations from earlier research on alien priories and nobles. The central argument is well made and there is much hard-won and useful detail on practice. From a local point of view, it is interesting to see the lack of desire to aggravate foreigners evident in the report of a mayor of Bristol, asked in 1337 to assess and identify the property in the city which was held by Frenchmen, for purposes of confiscation, who chose to say that there just wasn’t any (which was surely untrue) (p.12). Thinking more widely, this article provides very useful ideas and material to include in historical (and current political) work on the nature of nationality and allegiance, and on immigration, beyond the medieval period.

GS 16/1/2016

Articles of interest for legal historians in the latest edition of Historical Research

There are three articles of particular interest for legal historians (as well, of course, as other historians) in the latest edition of Historical Research. (2015, online preview). http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1468-2281/earlyview

First of all, we have Helen Killick, ‘Treason, felony and Lollardy: a common petition in the hand of Richard Osbarn, common clerk of the chamber of the Guildhall’ This makes interesting points about the role of scribes in the petitioning process, so supplementing the interesting work done by several scholars (particularly Gwilym Dodd) in the area of petitioning in recent years. For legal historians,and in the year of Magna Carta’s 800th anniversary, a particular interest will be in the light thrown upon the problem of long imprisonment without trial. There are also some good points in relation to the mechanics of imprisonment and its organisation, and on perceptions and treatment of accused felons, traitors and heretics.

Then there is Francis Calvert Boorman, ‘The “stormy latitude of the law”: Chancery Lane and street improvement in late Georgian London’. This is a period and topic with which I am less familiar, but which will certainly be useful for setting the scene – complete with runaway oxen, bad cart-driving and the crazy paving of London local jurisdictions – for my students as they consider the world of the legal profession in this era.

Finally, and of particular interest to those of us who have contributed to the forthcoming collection, M. Bennett and K. Weikert (eds), Hostage-Taking and Hostage Situations: The Medieval Precursor to a Modern Phenomenon (Routledge, 2016/2017) is Jacqueline Bemmer, ‘The early Irish hostage surety and inter-territorial alliances’. This is a very scholarly treatment of a complex, and very old, body of law on relations between different polities, and methods of securing peace between them. (It also brings up the very intriguing figure of the ‘lord of slaughter’, an official enforcer of vengeance).

GS 18/12/2015

The Art of Law: important article on images in rolls of the late medieval Court of Common Pleas

An area in which many legal historians have become increasingly interested in recent years is the visual composition of legal records. I gave a paper on this at the British Legal History Conference in 2013 (http://www.gla.ac.uk/media/media_282282_en.pdf ), highlighting the need to integrate the images from the Common Pleas rolls into the King’s Bench-dominated view acquired from Erna Auerbach’s work, and have also made some comments on visual material in this blog (http://vifgage.blogs.ilrt.org/2013/04/07/p-is-for-profile-henry-viii-in-the-rolls-of-the-common-pleas/ ). The appearance of a thought-provoking study of the visual material in the CP rolls in the fifteenth and sixteenth centuries is a welcome addition to this area, and certainly one for reading lists in medieval legal history.

Elizabeth A Danbury and Kathleen L Scott, ‘The Plea Rolls of the Court of Common Pleas: an unused source for the art and history of later medieval England. 1422-1509’. The Antiquaries Journal, 95  (2015), 157-210 looks at the rise of decoration and illustration in the CP rolls in this period, and explored the iconography of the images and the meanings of words and mottoes associated with them. There is much of interest in the identification of particular kings and other characters, and the discussion of the way in which particular images fit in with contemporary political events. I am also intrigued by the mysterious popularity of dragons in these records. Helpfully, there are several good-quality photographs of key images.

Medieval historians are naturally drawn to the political ramifications of the images. I think that legal historians can and should also consider the implications of the illustration and decoration which relates to the image or self-image of particular courts. Auerbach’s work saw the inclusion of loyal, royal pictures in the KB rolls as something which flowed from the particular connection of the monarch with that court. Noting that the CP also included such images makes that conclusion less secure. There is also the issue of the inclusion of decoration and mottoes associated with the names of judges, which deserves some consideration in connection with the image they were trying to project. Finally, there is the intriguing issue of the expected ‘consumers’ of these images: who would have seen them? Did our ‘clerk-illustrators’ imagine that they were drawing only for their immediate colleagues and contemporaries, or for posterity?

Gwen Seabourne


The Toenail Hoard

In an exciting find for archaeologists, local historians and legal historians, a metal detectorist in the Forest of Dean (Gloucestershire) has turned up a large amount of metal clearly clipped from the edges of coins of the time of Elizabeth I to Charles I: see http://www.bbc.co.uk/news/uk-england-gloucestershire-34779378.

As a mere peerer at parchment and – increasingly – computerised scans of parchment, I admit to being very jealous of people who manage to find actual stuff.  Still, I will add my legal historical tuppence (unclipped) worth on this interesting find.

First of all, why would somebody be cutting the edges off coins? This is something I remember hearing about as a child, when somebody explained to me the reason why some coins had a milled edge, and which has come up a number of times in my grown-up studies. Clipping of coins was a method of stealing small pieces of metal, which could be melted down by the malefactor, for use in counterfeit coins or otherwise. Coinage offences – clipping and counterfeiting – were treated with great seriousness from Anglo-Saxon times onwards. Anglo-Saxon codes include mutilatory punishments for coining offences, and there are notorious instances of executions for coin-clipping from the post-conquest period too (Jews suffered for this in particular, and especially in the reign of Edward I). [See, e.g. D.C. Skemer, ‘Edward I’s Articles of Inquest on the Jews and Coin-Clipping, 1179’, Historical Research 72 (1999) 1-26]. The reasons for such severity were: first, that there was an element of direct contempt of the monarch in the offence: coins were stamped with the royal image and should therefore not be defaced, and, secondly, the economic problems caused when coinage became debased.

Penalties remained particularly severe through the early modern period which is most relevant to this particular find. Coin clipping was declared ‘high treason by a statute in the reign of Elizabeth I [st. 5 Eliz. c. 11, 1562-3], (reinstating the position as it had been from the 1415-16 statute 4 Henry V c.6, which had been altered at the start of the reign of Mary I) showing continued central concern with this offence, and the need to try to deter people from committing it.

Since this was a form of treason, not only was death prescribed, but the death prescribed might be a particularly cruel and horrifying one: women coin-clippers were liable to sentence of death by burning. While there are examples in Hale’s Pleas of the Crown, 398,  of hanging, drawing and quartering for male coin clippers, straightforward hanging, or drawing and hanging, seems to have been more usual.  The Old Bailey project has a number of clipping cases from the latter part of the 17th C and thereafter, resulting in death sentences, including burning. There was certainly good reason to be fearful, if one engaged in coin-clipping.

To return to the recent find, the obvious conclusion would seem to be that somebody hid these clippings in a hurry, before they could melt them down, because they feared discovery, and, for some reason (death – whether by execution or not? matters connected to Civil War – bearing in mind that the coins include some from 1645?) they were unable to go back and dig them up. It could suggest a new crackdown on coining offences in this area in the mid 17th C (perhaps unlikely given that people were more concerned with the whole King v. Parliament thing). Or, of course, the perpetrator might simply have forgotten where he buried his treasure …

I’m looking forward to finding out more as the archaeologists get to work on these long-hidden shavings.


GS 19th November, 2015.

Violent husbands and tort liability – interesting new article

The latest Journal of Legal History has an interesting article on the genesis of the marital tort immunity, preventing wives suing their husbands: