Tag Archives: Gwen Seabourne

Surviving an execution

The law relating to executions is in the news at the moment, as pharmaceutical companies battle to dissociate themselves and their drugs from killing as opposed to healing (see, e.g. https://www.theguardian.com/world/2017/apr/13/arkansas-executions-lethal-injection-drug-makers ). Over in my world of medieval study, as a side-note to a current project on unauthorised hanging, I have been turning my attention to botched or failed – or successful and yet not final – executions. The first fruit of this is my ‘work in progress’ list of those who survived executions. It’s into double figures and no doubt there are many more instances out there: I am sure I will be adding to the list over time.

The victims (or not) are mostly male, mostly thieves, and many of the stories involve hanging, removal and revival in a church. Few are very detailed, but there are some interesting themes emerging. First, although there has been a lot of attention on the best-reported case, that of William Cragh of c. 1290, and the idea of miraculous resurrection after definite death (in that case, through the intervention of proto-saint Thomas de Cantilupe: see Bartlett, The Hanged Man: a story of miracle, memory and colonialism in the Middle Ages (Princeton University, 2006), most cases are not quite on that model. In more ‘secular’ sources, a few of those who survived excited talk of miracles, but even these instances do not seem to have been regarded as full resurrections.

They may be seen as miraculous escapes, or, at times, the result of blunders by others. Ropes breaik or people revive after having been taken down from the gallows. It is generally impossible to know whether there were interventions meant to defeat the intention of killing the convict – interference with ropes, or deliberate early removal from the gallows – as opposed to blunders and mistakes (certainly, there are other, clear, examples of deliberate rescue), but some, at least, of the stories suggest genuine surprise at the survival of a condemned person, as well as a lack of reliable testing for the expiry of life.

These cases certainly underline the important observation made by Henry Summerson: “It may be a sign of the extent to which present-day society has distanced itself from the realities of capital punishment that the word ‘execution’ is commonly misused to describe a killing that has been carried out in a manner quick, clean and efficient. A medieval execution at least was commonly a messy business, unskilfully carried out.” (H. Summerson, ‘Attitudes to capital punishment in England 1200-1350’, in M. Prestwich, R. Britnell and R. Frame (eds), Thirteenth Century England VIII (Woodbridge, 2001), 123-34, 132). Aside from the fact that modern systems generally do not allow their blunders to affect the ultimate outcome, by tending to reprieve those who have somehow managed to survive, the criticism is applicable to modern death-dealing legal systems as well.

GS

19th April, 2017.

Easements update: Regency Villas in the Court of Appeal

Regency Villas v. Diamond Resorts [2017] EWCA Civ 238

Regency Villas was one of those rare cases to engage with  the law students’ favourite question, ‘can a certain right be an easement?’ – a chance to use the Ellenborough Park test on something other than parking rights or storage. It concerned certain rights  for those occupying one piece of land to go onto a neighbouring piece of land (Broome Park Estate, Barham, Canterbury) for a variety of recreational and sporting reasons (including swimming, golfing, tennis and squash playing). This brought up the issue of whether rights which were ‘merely’ recreational could be said to accommodate the dominant tenement, as required by In Re Ellenborough Park [1956] Ch. 131, and whether they were too vague to ‘lie in grant’. It gave lecturers a chance to bring the concept of ius spatiandi out from the back of the cupboard. The upshot of the case was that the rights in question were allowed, and the sensible deduction from it was that the objection to something as merely recreational would be unlikely to work in future. Unusually for such a case, it went up to the Court of Appeal, and the judgment has just been reported, so what has the Court of Appeal  done with it?

Reminder of the facts

The dispute centred on a grant made in 1981,

“for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis  courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities … on the   Transferor’s adjoining estate”

This was held at first instance (HH Judge Purle QC) to amount to a grant of an easement or easements. The ‘servient owners’ appealed, claiming that the rights in question could not be easements because of (a) the expense involved in maintaining the factilities, and (b) the change of facilities since 1981. If some of the rights involved were easements, they contended that others were personal rights only, and that the judge should not have allowed them as a ‘bundle’ of easements as he did.

Over to the CA: (judgment delivered by Sir Geoffrey Vos)

  1. Yes (again) to recreational easements

First of all, the CA agreed with the first instance judge that the fact that a right may be classed as recreational is not a bar to its qualification as an easement.  Care was taken to deal with one of the most frequently-cited snubs to such rights, and to affirm (i) that the list of easements is not closed and (ii) that the list must move with the times (as interpreted by CA judges).

At [56], there is a decisive rejection of the ‘mere recreation’ Baron Martin’s view in the Exchequer case of Mounsey v. Ismay (1865) 3 H. & C. 486 at page 498, that there could not be easements for “mere recreation or amusement”:

“… [A]n easement should not in the modern world be held to be invalid on the ground  that it was “mere recreation or amusement” because the form of physical exercise it    envisaged was a game or a sport.  To be clear, we do not regard Baron Martin’s  dictum as binding on this court, and we would decline to follow it insofar as it suggests that an easement cannot be held to exist in respect of a right to engage in recreational physical activities on servient land.”

The idea of moving with the times is emphasised at [1]: “‘Since [the time of Ellenborough Park], the culture and expectations of the population of England & Wales have radically changed.  This case has to be considered in the light of those changes.’ and at [54]: “…[T]the views of society as to what is mere recreation or amusement may change …”

The way in which the CA thinks that societal views have changed, indicating the need for a change in the rules about what qualifies as an easement, relates to the regard in which  physical exercise is held:

[54]: “…Physical exercise is now regarded by most people in the United Kingdom as  either  an essential or at least a desirable part of their daily routines.  It is not a mere recreation or amusement.  Physical exercise can, moreover, in our modern lives, take    many forms, whether it be walking, swimming or playing active games and sports. We cannot see how an easement could … be ruled out solely on the grounds that the form of physical exercise it envisaged was a game or a sport rather than purely a walk in a garden.” [54]

This might appear to be good, healthy and unobjectionable, but there are certainly some things to think about as well.

As is the way with property law decisions, this is presented as the product of a process of deduction and analogy, using both previous decisions and supposedly ‘common sense’ assumptions about life and land use.

I am not sure, for example, how many people would find the inclusion of justifications based on the allowance of profits a prendre for hunting and fishing purposes a very appealing argument.  In addition, judges do leave themselves open to a certain amount of questioning when they use some sort of normality criterion or implication when working out whether something passes the test for qualification as an easement. We may feel a little bemused, for example, by the inclusion of the information that [66] “The utility and benefit to a dominant dwelling or timeshare property of the ability to use a next-door tennis court is obvious to any modern owner.  Many country homes these days have their own tennis court or courts precisely as a benefit for the occupants.”  or [71] “…[T]he utility and benefit to the dominant tenement of the ability to use a next-door swimming pool is obvious.  As with a tennis court, some modern homes have their own pools as a benefit and a utility for the occupants.”  We may also feel that there is a certain unreality in the suggestion at [76] that “We are all familiar with the teams of groundsmen and greenkeepers that [high quality golf] courses need to employ to maintain them to the high standard that players frequently desire.” (my emphasis and disbelief).

  1. What’s in and what’s out?

The CA did think that the rights ought to have been split up and considered individually, rather than as a bundle [51]. They proceeded to look at nine different potential easements, ranging from use of the ‘formal Italianate garden’, through golfing, to use of post-1981 facilities.

So it was yes to: use of the ‘formal Italianate garden, croquet lawn, putting green and golf course but no to the right to use the reception, billiard room and TV room and other facilities within a building on the servient tenement, or a restaurant. This rejection was justified in very property-law terms, as [79] “the right granted is really not in the nature of an easement at all.  It is not about the use of any land, but the use of facilities or services that may for the time being exist on the land.”

While one may be glad to hear that “A restaurant is not like a toilet…” [79] there is food for thought in the distinctions being made here between different activities, and who is most likely to be in a position to benefit from them (so – yes to golf and tennis, no to TV, billiards, eating). Although the steps of the decision are often explicitly linked to the particular wording of the grant or facts on the ground, or realty and personalty (except when using an example based on profits, which certainly mix these concepts), there must also be an issue about the paradigmatic landowner or occupier of a dominant tenement who is lurking in some of this thinking. What does it mean for those who are not physically able (or who just prefer billiards to golf)? Is there a gendered aspect to any of this?

As far as the swimming pool was concerned, things were slightly more complex. In principle, an easement would have been legitimate in this area, but there was a problem – the servient owners had filled in the original outdoor pool and built another, indoor one. Because of the time factor and the change in location, no easement was allowed over the new pool. It was not [80] a ‘direct substitute’ for the original pool  [Crystall ball – look out for disputes over the difference between substitution and improvement on the one hand and extension on the other]. The ‘dominant tenants’ might, however, still have an easement over the (now-non-existent) original outdoor swimming pool. (The sometimes almost whimsical area of ‘non-abandonment despite non-existence’ is one of my favourite parts of easements). The court left that to be sorted out separately.

Misc.

A specific issue with regard to this case was that the slightly odd way in which the original transfer dealings were carried out might have led to particular rights being lost within 24 hours. This was something which seems to have weighed in favour of construction of the rights as easements at first instance (since this would tend to mean that they would survive), The CA was keen to keep separate the questions of qualification as an easement and acquisition of an easement: [62] “the parties’ intentions cannot ultimately validate an attempt to grant an easement of a facility that cannot in law be the subject of an easement”. A good model for law students to follow.

 

Conclusion and musings

On the specific facts of the case, this judgment showed a narrowing of the rights allowed as easements, compared to the first instance decision. Nevertheless, from a law student’s point of view, the most important thing is the reaffirmation of the fact that it will not be possible to challenge the legitimacy of  an easement simply because it is ‘recreational’.

For those who would like to take it further, there are a few things to ponder here. This does seem to be an area in which rather a lot of value judgments about land use and recreation can be brought in under cover of black letter property law principle. Arguments by analogy from the paradigm of the private right of way do seem to be rather creaky, particularly when the facts are far removed from the original context of the law of easements. Whereas many familiar easements cases involve individual landowners, this was about something rather more commercial. There are property companies and groups of companies involved. There is golf rather than ‘taking out small children in prams or otherwise’. Does Ellenborough Park, even with extensions (or improvements) really work in this context? The ways in which property lawyers consider these matters (including a sadly glossed-over ‘rather academic’ debate as to the nature of water in a swimming pool as realty or personalty – [71]) may well seem to many people to be as baffling as the words ‘incorporeal hereditament’ themselves.

GS 5/4/2017

No longer waiting for Ilott: preliminary thoughts

 

The Supreme Court heard Ilott v Blue Cross [2017] UKSC 17 before Christmas, and has now published its decision in this, one of the biggest cases on succession law in several years:

https://www.supremecourt.uk/cases/docs/uksc-2015-0203-judgment.pdf

It was a case about a will, and, specifically about an adult daughter’s challenge to her mother’s determined efforts to leave her nothing of her (relatively modest) estate. The mother in question, Mrs Melita Jackson, had instead favoured a group of charities, and had left specific instructions that any attempt by her daughter, Heather Ilott, to upset this arrangement should be resisted. Heather did indeed mount a challenge, based on the Inheritance (Provision for Family and Dependents) Act 1975. This allows a range of relations and connections of a deceased person to claim reasonable financial provision from the estate, under certain circumstances.

The case had gone through several stages before this, with judges interpreting the Act, and their own task under it, in rather different ways. While most seemed content to accept that Heather Ilott should be given some sort of support from her mother’s estate, there were varying views as to what sort of an award she should receive – how much, and in what form, and what should it represent?

The (unanimous) Supreme Court decided to allow the appeal of the charities in this case, which, as far as Heather Ilott was concerned, meant that the provision she would be getting from the estate went back to £50,000, the sum fixed on by DJ Million, rather than the substantially higher figure which the Court of Appeal had decided upon.

In real life, Heather Ilott’s loss may not be as large as it appears from these bald facts: the SC judgment makes it apparent that some sort of arrangement has been made between the charities and Heather Ilott, presumably to soften the blow of this decrease in provision. From the point of view of the charities, this was clearly a difficult case to handle, since they risked looking extremely, well, uncharitable in trying to reduce the award made to a woman who was, clearly, in unfavourable financial circumstances. Nevertheless, it was clearly important to them not to concede ground in the area of challenges to money left to them by will, given that this is one of their major sources of income.

The decision itself, although it is in favour of the charities involved, and has been welcomed by the charity sector more generally, is relatively cautious. It is hedged about by the familiar reluctance to define terms, insistence that cases turn on their own facts, and comes complete with a Lady Hale critique of the current state of the law (and the failure of the Law Commission to deal with its problems). It was not to be expected that one case could deal with the genuine and longstanding tensions between a feeling that a person should be able to do as she wishes with her own property, a power extending even after death, and an instinct that there is an obligation to support and maintain particular close relations, if found ‘deserving’ (or at least ‘not undeserving’). (It is often suggested that ‘testamentary freedom’, unaffected by the latter obligation, had a relatively short life-span, but that is to ignore the centuries of exploitation of a variety of devices – particularly, but not only, those involving uses and trusts – to achieve control beyond death in the pattern of succession to land and personal property.) On top of that ancient tension, there are large issues of principle in relation to the relevance of tax and benefits considerations in these sorts of decision, deserving of more rounded and thorough consideration than would be possible on one individual set of circumstances. No doubt both the implications of Ilott itself and the wider issues will be considered in detail by succession law commentators in the coming months.

It has been a long drawn out case for those involved. For those of us watching it unfold, it has been interesting in many ways. The Supreme Court case before Christmas was the first televised SC case I have ever watched (and yes, I did watch it all the way through!), which was quite educational, if not especially dynamic. I have also found it instructive to look at the press coverage of the case. There is a lot of criticism of the deceased mother, Melita Jackson, who is characterised as spiteful and unreasonable. This draws upon comments by counsel, claimant and judges. It may or may not be fair – Mrs Jackson is not around to give her side of the story, or to object to the way in which she has been portrayed. The lack of an opportunity to answer back is inevitable in wills cases, but it can be rather uncomfortable: I find it rather disturbing seeing such one-sided contentions about deceased people (I found the airing of the alleged delusions of a woman with Alzheimer’s in Lloyd v Jones [2016] EWHC 1308 (Ch) particularly sad: I don’t think any of us would like to think that the general public would one day hear the claim that we had had delusions involving aliens, witches, dead people and being burgled or poisoned by Saddam Hussein, and were incontinent). It would also be interesting to examine the comments in Ilott and in comparable cases to see whether certain types of criticism are more likely to be applied to female as opposed to male testators: that’s going on my list of ‘one of these days’ projects. (At least one very gendered ‘below the line’ comment here sums up the case as entrenching ‘the human right to be a b***h’ – their stars, not mine: http://www.legalcheek.com/2017/03/supreme-court-backs-three-animal-charities-over-struggling-daughter-on-benefits-in-a-row-about-her-dead-mums-will/#comment-1009330 ).

It has been interesting to observe the Telegraph, and, in particular the Daily Mail, as they make very apparent the tensions noted above. Although Heather Ilott (despite having claimed various benefits and tax credits over many years, and thus not being the sort of person they usually favour) is generally portrayed in a fairly sympathetic light, there is also a clear concern with testamentary freedom (particularly when defence of testamentary freedom can be combined with a dig at ‘out of touch’ judges: http://www.dailymail.co.uk/debate/article-3178080/MAX-HASTINGS-judges-tell-leave-money-wills.html ), and, when wider conclusions are drawn from the litigation, the reader tends to be cast in the role of testator, rather than badly-off IHA claiman (e.g. http://www.telegraph.co.uk/news/uknews/law-and-order/11766651/Your-will-can-be-ignored-say-judges.html )

(If anyone wants to see a somewhat lower level of commentary, then the ‘below the line’ comments on the Express article on the case are a good (in the sense of predictable and depressing) place to start: http://www.express.co.uk/news/uk/779633/Supreme-Court-rules-award-woman-left-mother-will-charity-payout).

So – lots to think about: certainly in terms of immediate effects, but also in terms of attitudes revealed by the case and its coverage, and in terms of longer historical traditions of allowing and limiting control of property beyond death. No doubt I will be coming back to this.

 

GS 15/3/2017

Further coverage

A couple of days on, we get this in the Guardian: https://www.theguardian.com/voluntary-sector-network/2017/mar/17/charities-court-disputes-contested-wills-melita-jackson?utm_source=dlvr.it&utm_medium=twitter – a condemnation of charities for ‘interfering’ in contested wills. It may be right to say that there are problems with public trust of charities, but it seems harsh to describe the charities’ conduct here as ‘interfering’, since the initial active part was taken by the daughter of the deceased, asking for an alteration in the way in which the deceased’s estate should be shared out, and then asking for a larger share than was awarded at first instance. The article plays down the idea that the case has precedent value – clearly it is very important for charities to know where they stand on the vulnerability of wills which leave them money. It also ignores the fact that there does seem to have been some arrangement to limit the actual impact of the decision on the daughter in the case. It looks to me as if the charities were very well aware of the possible PR issue. Whatever one thinks about the weight which should be attached to testtamentary freedom, this does look like an issue which needed a thorough workout in court, in an effort to sort things out for the future. Whether Ilott has done that is, of course, a different matter…

18/3/ 2017 General message that we should be able to do what we like in our wills in Janet Street-Porter’s opinion piece: http://www.independent.co.uk/voices/melina-jackson-will-charities-rspca-cut-daughter-out-supreme-court-sad-reflection-a7636056.html – though might have been an idea to read the judgment or summary a bit more carefully … suggestion here is that the will ‘stands’ and Heather Ilott gets nothing – the SC just put things back to DJ Million’s conclusion that Heather Ilott should get a lower sum than the CA awarded.

The Art of Law: update

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/ ). In a 2015 blog post, I noted the appearance of a thought-provoking study of the visual material in the CP rolls in the fifteenth and sixteenth centuries: 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. This looks at the rise of decoration and illustration in the CP rolls in this period, and explores 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?

 

 

Going back to all this for another project, it seems to me that there is still a lot to explore here. In particular, I was intrigued at the illustrations at the foot of one late 15th C roll, associated with the name Forster. A couple of the illustrations have come up in recent tweets and on the cover of a recent book, but there is room for a study on ‘the Forster hand’ and its illustrations – ranging from a female tavern worker, to a woman clubbing a man, to a self-harming chimera, a rosary, a heron/crane gobbling a snake/eel, and fish (with nostrils) – all in CP 40/840 – Common Pleas roll for Michaelmas 1471. definitely going to pursue this character through some other rolls.

Gwen Seabourne

10/3/2017

Poetic Injustice

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

A non-burning issue

A little gem from the archives …

A 1306 case from the Gloucestershire gaol delivery roll (National Archives JUST 3/105 m.9.) tells an intriguing tale: a dramatic scene seems to have taken place in court during a homicide trial at the session. Alice, daughter of John de Mercombe and wife of Richard de Sydenham, was accused of killing Richard. All homicides were felonies – and thus might end in capital punishment and forfeiture – in this period, but the killing of a husband by a wife was regarded as far worse than a run-of-the-mill slaying: classed as a form of treason (petty treason), it was seen to be deserving of particularly painful and spectacular punishment – death by burning. So Alice seemed to be in a lot of trouble. She pleaded not guilty (well, you would, wouldn’t you – no likelihood of mercy if she admitted to killing her lord and master, overturning the natural order of things etc. etc.) and I was anticipating a deeply disturbing end to the episode. But Alice had a defence: rather a good one – she said her husband was alive and was in the court. And it was confirmed that he was. On the one hand, hurrah – apparent miscarriage of justice (and hideous end) avoided. On the other hand, hmm – was she indicted by mistake or through malice (whether involving Richard or not)? Somebody clearly had questions to answer.

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.

 

 

 

 

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.

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).