The Journal of Legal History

Abstracts of articles in Issue 24.2

English Trade Mark Law in the Eighteenth Century: Blanchard v Hill Revisited – Another ‘Case of Monopolies’? by Norma Dawson

The decision of Lord Hardwicke LC in Blanchard v Hill in 1742 is the earliest reported case on the equitable jurisdiction to grant injunctive relief against trade mark piracy. The ambiguous manner in which the case was reported led to the decision being interpreted as either the basis of equitable jurisdiction or a denial of jurisdiction. This article seeks to establish the background to the case, what actually happened, and the immediate impact of the decision. The scene is set, however, in a parallel symbolic universe – heraldry – because in 1740, the officers of arms were confronted with a trade mark case.

New Light on Steane’s Case by G.R. Rubin

R. v Steane (1947) is regularly cited in modern textbooks on criminal law on the distinction between motive and intention in respect to mens rea. In that case the conviction of the defendant for having broadcast enemy propaganda from Berlin during the Second World War was quashed by the Court of Appeal on the basis of the trial judge’s misdirection. Steane himself claimed that he had been forced to broadcast for the Nazis as a result of threats to himself and to his family. The present article looks at new evidence, including that from MI5 sources, which, it is submitted, now casts serious doubt on Steane’s credibility and which suggests that the question of his loyalty as a British subject was at least ambiguous during the war.

Legal Protection of the Mentally Incapable in Early Modern Scotland by R.A. Houston

This article deals with legal means of protecting the person and property of those who suffered from an absence of, or defect in, their reason. Topics considered include the appointment and functions of tutors and curators; alternative means of protecting the weak minded or deranged; and how the dangerously insane were prevented from harming themselves and others. The article focuses on Scotland, but also offers comparisons with England, America and the Continent. Approaches to the care of the mentally incapable are used to enhance broader understanding of the individual, family and community in a legal and historical context.

Lord Cottenham and the Court of Chancery by Fiona R. Burns

Lord Cottenham was a significant legal figure in nineteenth- century Britain. He was a Lord Chancellor and Keeper of the Great Seal in both Lord Melbourne’s and Lord Russell’s administrations. Yet compared with his peers he has faded into obscurity, because his contribution to the reform of the Court of Chancery and the development of the law, particularly equity, has not been fully appreciated. It will be argued that Lord Cottenham was not as successful as his successors in reforming Chancery because his attempts to do so were flawed by the view that incremental reform would redress the problems which beset the Court. However, he made some highly significant contributions to equitable doctrine, sometimes taking a practical approach to judicial decision-making and laying the foundation for some modern doctrines.

Abstracts of articles in Issue 24.1

Six and Out? Bolton v Stone after 50 Years by Mark Lunney

Bolton v Stone is one of the best-known cases in the common law of tort. Fifty years after the decision of the House of Lords, this article considers the historical context in which the decision was given. One important factor in this context was the fact that, contrary to the usual practice, the defendants did not have liability insurance. Another was the importance attached to the playing of cricket. By finding that these defendants were not in breach of duty the House of Lords gave pre-eminence to the latter of these factors. However, by stressing that the facts of the case were unusual, it was made implicit that future cases (where the defendant would in all probability be insured) might well attract a different result. Thus, whilst Bolton v Stone is cited for the proposition that the cricket club was not negligent by not taking greater steps to prevent the ball hitting Miss Stone, it remains the only reported case where a cricket club has escaped liability in such circumstances.

Dr Codex Silenced: Middleton v Crofts Revisited by George R. Bush

Edmund Gibson, bishop of London was an able canonist, a High Churchman and ironically the key ecclesiastical personality associated with Walpole’s Whig and Hanoverian administration. In an irreverent age, Gibson was a keen supporter of the reformation of manners. Anticlericalism and a series of parliamentary reverses made Gibson’s position untenable by 1735. In the following year Lord Hardwicke in the King’s Bench in judgment in Middleton v Crofts settled the position of the laity as not bound by the canons of the Church of England. This controversial judgment went unchallenged and has been thoroughly endorsed by later opinion. This paper seeks to examine Gibson’s manuscript objections to the judgment and to wonder at the judgment’s significance for ecclesiastical law today.

Nineteenth-Century Lawyers and Railway Capitalism: Historians and the Use of Legal Cases by Sybil Jack and Adrian Jack

The railway was a key factor in nineteenth-century economic development. R.W. Kostal considered the interaction of the industry with lawyers in his book Law and English Railway Capitalism 1825–1875. Yet his conclusion that the law coped badly with the new industry is vitiated by his failure properly to analyse the way the courts applied legal doctrine. In areas such as pre-incorporation liability for railway companies’ debts, rating and compulsory purchase, the courts applied well-established principles. Even new law in cases like Priestley v Fowler can only be understood in terms of common law principles.

Review Article: Adversarial Culture, Adversarial Doctrine: Cross-Examination and Leading Questions in The State Trials on CD-ROM by T.P. Gallanis

The State Trials, 1163–1858, on CD-ROM

This review article has two purposes. First, it introduces and evaluates a new electronic resource: The State Trials, 1163–1858, on CD-ROM. This product was released recently and has not yet had the chance to gain much attention from legal historians. Secondly, the article provides one example of how The State Trials CD can contribute to historical research by showing how it raises questions about the received wisdom on an aspect of the history of our adversarial system: the limitation on leading questions in the examination of witnesses.

Migrations of Manuscripts by J.H. Baker

Book Reviews

Abstracts of articles in Issue 23.3

An Empty Shell? Rethinking the Usury Laws in Medieval Europe by Elaine S. Tan

Many historians have argued that the usury laws were a dead letter and that usurious practices were widespread during the Middle Ages. This review of canonical rule formation in Europe shows that many contracts were outside the prohibition and that the laws were highly effective. The popularity of financial instruments depended on obtaining the Church’s approval, and ecclesiastical tribunals pursued usurers relentlessly. Although it is not possible to measure with any precision the incidence of usury or the effectiveness of the prohibition, arguments of a high incidence of usury do not stand up in the light of evidence from the contemporary legal context.

Bills of Custody in the Reign of Henry VI by Susanne Jenks

In contrast to views put forward by Marjorie Blatcher, it is argued here that the impact of Bills of Custody on business in the court of King’s Bench in the late fifteenth century can only be judged if all custodial bills are counted and only if special attention is given to those bills dealing with matters which would otherwise have been outside the court’s normal jurisdiction. It is shown that the increase in the numbers of such cases is too modest to support Blatcher’s claims of a massive increase in business since the 1450s, that the extension of the notion ‘in custody’ to people on bail did not happen in 1452, as she stated, but 20 years earlier, that it was extended to people on mainprise as well, at least for some time, and finally that fictitious Bills of Middlesex and writs latitat were not as important in connection with custodial bills as Blatcher thought.

An Early Treatise on Peace Treaties: Petrus Gudelinus between Roman Law and Modern Practice by Randall Lesaffer

Most of the published works of Petrus Gudelinus (1550–1620), professor at the Louvain Civil Law Faculty, concern the public law. In his ‘commentaries’ on the Novellae and the Libri feodorum, he did not limit himself to the learned law and classical examples but also discussed the laws and customs of his own days. The same is true of his little-known De jure pacis commentarius, which, though formally presented as a commentary on the Pax Constantiae from the Authenticum, is a treatise on issues from current peace-treaty practice. In the most interesting part, Gudelinus addresses the problem of private property and compensation for damages. On this point, his work is more concucrrent with contemporary practices than Grotius’ De jure belli ac pacis libri tres (1625).

‘A Commonwealth of Commonwealths’: Late Nineteenth-Century Conceptions of Federalism and Their Impact on Australian Federation, 1890–1901 by Nicholas Aroney

This article utilizes the Australian experience of federation, 1890–1901, as a vehicle for the discussion of the leading conceptions of federalism extant in the late nineteenth-century English-speaking world. In particular, the article examines the federal theories of James Madison, James Bryce, Edward Freeman, Albert Dicey and John Burgess in the context of many others, and seeks to show that the idea of a ‘Commonwealth of commonwealths’, although controverted by contending theories, remained a central theme in late nineteenth-century conceptions of federalism.

Major Accessions to Repositories in 2001 Relating to Legal History by Historical Manuscripts Commission

Book Reviews

The Welsh King and his Court edited by T.M. Charles Edwards, Morfydd E. Owen and Paul Russell
The Fee Tail and the Common Recovery in Medieval England 1176–1502 by Joseph Biancalana
Human Rights and Legal History: Essays in Honour of Brian Simpson edited by Katherine O’Donovan and Gerry R. Rubin
The History of Law in a Multi-Cultural Society: Israel 1917–1967 edited by Ron Harris, Alaexandre Kedar, Pnina Lahav and Assaf Likhovski

Abstracts of articles in Issue 23.2

Social Roles and Legal Rights: Three Women in Early Nineteenth-Century India by Raymond Cocks

In the early decades of the nineteenth century the small European societies in Madras (now Chennai) and Bombay (now Mumbai) were divided by disputes of such intensity that the authorities in London feared for the future of British power in India. The divisions were legal and social. In law, the Governors and the Supreme Courts of both cities contested the scope of their respective roles with the arguments focusing on the rights of Indians. Again and again, government took alarm at the ‘pro-Indian’ views of reforming judges. The debates were reflected in European social divisions, thereby making them all the more intransigent; legal allegiance became linked to social allegiance. It was this mixture of the legal and the social which gave the wives and other female relatives of the judges a role in the process of reform. Normally confined to multiple pregnancies and restrained social functions, the divisions in European life gave these women an opportunity to influence legal change. Without making official public statements they took part in the development of ideas about Indian rights.

The Law of Nations in The Federalist Papers by Tara Helfman

This article explores the influence of prevailing legal and political theories of inter-state relations on the formation of early American constitutional thought. Emphasis is placed on the manner in which the authors of The Federalist Papers built a legal argument against the Articles of Confederation and for the Constitution of 1786 by invoking principles of treaty law and the law of nations. It is argued that the Articles themselves resembled contemporary international treaties in format and in force. The Federalist’s reliance upon such authors as Grotius, Locke, Montesquieu, and Vattel is examined in this light.

The Judicial Interpretation of Lord Hardwicke’s Act 1753 by Rebecca Probert

It has been claimed that the courts interpreted Lord Hardwicke’s Act strictly and that any deviation from the form prescribed by the statute rendered the marriage void. A closer examination of the cases reveals that the courts in fact took a more purposive approach. There was a strong presumption in favour of marriage. Where the marriage was one that had subsisted for a long time, the courts’ approach made it difficult to prove non-compliance with the terms of the Act. Where the parties had married without parental consent, a stricter approach was taken, reflecting the aim of preventing clandestine marriages.

The nisi prius Trial Notes of Lord Chancellor Hardwicke by Henry Horwitz

The trial notes of Chief Justices William Mansfield and Dudley Ryder have proved to be rich sources for the study of common law judicial process in the decades after 1750. Equally valuable, but hitherto unanalyzed, are the trial notes of Philip Yorke, Lord Hardwicke, compiled when he was Chief Justice of King’s Bench in the mid-1730s. This study provides an account of Hardwicke’s notes, comparing and contrasting their style and substance to those of Mansfield and of Ryder, thereby enlarging our appreciation of the character and treatment of civil litigation in the royal courts under George II and George III.

Book Reviews

Il processo contro Gesù. Quaestiones 2 edited by F. Amarelli and F. Lucrezi
Las Siete Partidas translated by Samuel Parsons Scott edited by Jonathan Harris
Verfassungspolitik und Verfassungswandel: Deutschland und Grossbritannien im Vergleich edited by Gert-Joachim Glaessner et al. Crime, Justice, and Discretion in England 1740–1820 by Peter King

Abstracts of articles in Issue 23.1

The Writ and Exception de odio et atia by Susanne Jenks

In this article it is argued that the purpose of the writ de odio et atia did not change after 1215 but that it remained a means of preventing the imprisonment of the innocent for a long time pending trial. Historians have confused references to the writ de odio et atia with references to the exception de odio et atia and have thus come to false conclusions. Moreover, the decline of the writ de odio et atia noticeable in the fourteenth century has nothing to do with the jury system, but seems to be the result partly of the statutes which were made to prevent false accusations from being made in the first place and partly of the increasing numbers of Gaol Deliveries as well as the initiative taken by the king’s bench to release people accused of homicide on bail during trial, all of which served the same purpose as the writ de odio et atia and eventually made it obsolete.

Warranty and Surety in Medieval Hungarian Land Law by Martyn Rady

Substantial restrictions existed in medieval Hungarian law with respect to the alienation of noble land. Since all relatives of a landholder had rights of inheritance to his estate, alienation of the estate or of its parts required their prior consent. The difficulties involved for the individual landholder in obtaining this consent – particularly from distant cousins, minors and the unborn – made it almost impossible to ensure that any transaction was free from challenge and that it might not subsequently be rendered void by a relative’s protest. Although Hungary was familiar with the institution of the warranty, warranties given at the time of alienation were not inheritable and they did not act as a bar on recovery by the alienor’s relatives. In order to discourage relatives from contesting an alienation, alienors of land often ‘assumed the burdens’ of their kinsmen and made them liable to the payment of a substantial sum in the event of their protesting against the transaction. Since this device might be employed unscrupulously, its use was severely restricted in the early sixteenth century and it subsequently fell into desuetude.

The Nature of the Tenancy by Statute Merchant by Christopher McNall

The tenancy by statute merchant was an interest in the lands and tenements of certain defaulting debtors taken pursuant to the provisions of the Statute of Merchants (1285). This article considers the nature of the statutory tenancy, given that the statute made the assize of novel disseisin available to the tenant, and also discusses the question of how closely the tenancy resembled a lease.

Discretion and the Rule of Law: The Licensing of Drink in England, c.1817–40 by Stuart Anderson

Publicans’ pressure for relaxing licensing control, and the free-trade campaign that culminated in the Beer Act had different roots, but both rejected magisterial discretion and shared a commitment to an adjudicatory model with strong ‘rule of law’ values. Subsequent inquiries suggested that for adjudication to replace discretion successfully, freedom to trade should be restricted to the respectable, and that the ‘rule of law’ required modern policing and modern courts. Licensing reforms thus illustrate a shift to modernity which served the interests of both the victuallers who defended their ‘property’ and the free-traders who denied it.

Migrations of Manuscripts by J H Baker

Review Article – Bentham Reviewed by Mary Sokol
Catherine Fuller (ed.), The Collected Works of Jeremy Bentham: Correspondence, Volume 11: January 1822 to June 1824
Philip Schofield and Jonathan Harris (eds.), The Collected Works of Jeremy Bentham: Legislator of the World
Michael James, Cyprian Blamires and Catherine Pease-Watkin (eds.), The Collected Works of Jeremy Bentham: Political Tactics

Abstracts of articles in Issue 22.3

The Bill of Middlesex and the Chancery, 1556–1608 by N G Jones

It has been known for some time that injunctions were issued out of the Elizabethan Chancery to stay proceedings by bill of Middlesex in the court of King’s Bench on the ground of non-payment of the fine upon an original writ. This article shows that such injunctions were issued from the mid-1550s until the 1590s, when their issuing ceased in consequence of Lord Keeper Egerton’s Chancery reforms. The article discusses the nature, scope and function of the injunctions, their implications in understanding litigants’ reasons for proceeding by bill, and their role in the time of James I in the establishment of an office in the King’s Bench to collect fines in bill of Middlesex cases.

The Assumption of Jurisdiction: Parliament, the King’s Council and the College of Justice in Sixteenth-Century Scotland by Mark Godfrey

This article considers how the Scottish Court of Session developed out of the restricted jurisdiction of the medieval King’s Council, and achieved recognition as a supreme civil court during the sixteenth century, thereby assimilating the main judicial role of the medieval Scottish Parliament. It argues that the change resulted not from any particular legislative or judicial decision but from a gradual assumption of jurisdiction concealed within an expansion of the scope of traditional remedies. It is argued that the most decisive step occurred when the pleading of actions on heritable title to land began to be seen as within the ambit of those remedies. It is argued that this assumption of jurisdiction had occurred by the time of the foundation of the College of Justice in 1532, precluding any development along English lines of equitable remedies outside the procedures of the common law in Scotland.

Doctor in Trouble: Anderson v Gorrie and the Extension of Judicial Immunity from Suit in the 1890s by Patrick Polden This article explores the case of Anderson v Gorrie (1894) in which the Court of Appeal completed the immunity of judges from suit for actions whilst ostensibly sitting judicially and within their jurisdiction. They subsequently rejected an argument for an extension of the ambit of the decision in Dimes v Grand Junction Canal Company to judges sitting in a case in which they had an interest. The strength of the fortifications the judiciary had built around itself, erected on the bones of Anderson and others, must have been influenced by the concerns the judges felt – concerns with the influx of litigants in person, who sometimes pursued their cases all the way to the Lords, benefiting from the in forma pauperis procedure.

Notice – Major Accessions to Repositories in 2000 Relating to Legal History by the Historical Manuscripts Commission

Review Articles

The Court of Exchequer and Equity by Mike Macnair
Henry Horwitz, Exchequer Equity Records and Proceedings 1649–1841
Henry Horwitz and Jessica Cooke (eds.), London and Middlesex Exchequer Equity Pleadings, 1685–6 and 1784–5: A Calendar W. Hamilton Bryson (ed.), Samuel Dodd’s Reports 1678–1713 and Miscellaneous Exchequer Cases 1671–1713
Northern Lights by Lord Hope of Craighead
Kenneth Reid and Reinhard Zimmerman (eds.), A History of Private Law in Scotland, Volume I: Introduction and Property and Volume II: Obligations

Book Reviews

Abstracts of articles in Issue 22.2

The Role of the Judge in the Formulary Procedure by O E Tellegen-Couperus

In this article it is argued that in the formulary procedure the judge played a much more important role than is generally taken for granted. First, judges decided not only on factual matters but also on legal issues. Second, they were not ‘laymen’ but, considering their social position, they must have been well-versed in contemporary law. Third, their judgment could be very important for the development of Roman law, for instance when it involved the interpretation of a particular formula. On the basis of these arguments a new interpretation is given of Iav. D. 24.3.66 pr.

Thirteenth-Century Custodia by Joseph Biancalana

Thirteenth century custodia were arrangements – agencies or bailments – that served the same purposes as were later served by uses or trusts. The article presents evidence of the range of such arrangements and of how the common law protected the parties to those arrangements. Popular Perceptions of Income Tax Law in the Nineteenth Century: A Local Tax Rebellion by Chantal Stebbings

The Exeter tax rebellion of 1871 is taken as a model to examine popular perceptions of income tax law at a time of national discontent. The discontent was with the administration of the tax rather than its substance. In a complex commercial society the statutory system of local lay Commissioners, possessing neither sufficient time nor expertise, was inadequate to make assessments or determine appeals. In practice the expert Crown official, the Surveyor, dominated the process, though the law gave him merely a supervisory role. The popular resentment of the Commissioners paradoxically confirmed the desire to retain that body as an independent buffer between the State and the taxpayer. The rebellion reflected the tensions of the age, illustrating the confidence of the Victorian middle class and its questioning of the traditional property-owning classes in the lay administration of justice.

Book Reviews

Abstracts of articles in Issue 22.1

‘Deserving’ and ‘Undeserving’ Wives: Earning and Forfeiting Dower in Medieval England by Paul Brand

Under the rules of the medieval common law, widows were normally entitled automatically to a third share of their late husband’s lands as their dower. A series of case beginning in the middle of the thirteenth century indicates, however, that widows were only entitled to their dower if they had been old enough to ‘earn’ their dower by the time their husbands died and that this meant being old enough to engage in full sexual intercourse. Under the provisions of chapter 34 of the statute of Westminster II (1285) it also became possible for wives to forfeit their claim to dower for adultery. The following two decades provide evidence of around 100 cases in which these provisions were invoked. These two developments suggest that during the second half of the thirteenth century there was a significant shift away from seeing dower as an automatic entitlement arising out of any valid marriage to seeing it instead as a ‘reward’ for service rendered by the wife during marriage.

Enforced Creativity: Noel Hutton and the New Law for Development Control, 1945–47 by Raymond Cocks

The British Labour Government of 1945 was committed to a major programme of legislation which included the reform of planning law. When debating these planning reforms, politicians focused on contentious political issues of the day such as the rights of landowners to compensation. They did not devote as much attention to the principles and mechanisms of a new system for controlling development. This task was usually left to departmental civil servants, but the latter were not given sufficient time to produce appropriate policies for all the new legislation. In practice this meant that numerous problems were passed on to the one group of people who could not pass them on to anyone else. The Parliamentary Counsel responsible for drafting the Act were given a creative role which they did not seek, and which they could not avoid, and this was to be significant for the content of the new law. One Parliamentary Counsel in particular came to take on a dominant role. In a real sense, it may be said that the anonymous people who drafted this important law were also the people who made it. The unsystematic process by which important law reforms may come under the control of a few particular civil servants in Whitehall can be relevant in determining the content of legislation.

South Australia’s Judicature Act Reforms of 1853: The First Attempt to Fuse Law and Equity in the British Empire by Greg Taylor

In South Australia in 1853, 20 years before the judicature system was introduced in England, legislation was passed to fuse the administration of law and equity. This article first describes the South Australian reform and then considers the sources from which it might have emanated and the motives behind its enactment. It shows that, however boldly the reform may have been conceived, the practical impact of the reform on the administration of justice in South Australia was very slight. Reasons suggested for this fact include the predominance of English ideas in nineteenth-century Australia and the sudden but at the same time voluntary nature of the change introduced by the legislation.

Migrations 2000: Migrations of Manuscripts by J H Baker Book Reviews

Abstracts of articles in Issue 21.3

Oaths and Affirmations of Public Office under English Law: An Historical Retrospect by Enid Campbell

This article charts the history of England’s laws and customs regarding the oaths and declarations required of those appointed or elected to public office, and in particular parliamentary office and offices under the Crown. It provides a brief account of medieval law and practice from the mid-thirteenth century and a fuller account of changes effected by statute over the centuries which followed England’s break with the Church of Rome during the reign of Henry VIII. The article shows that well into the nineteenth century the statutes were effective to exclude from many important public offices persons who were not communicants of the Church of England, and that the reforms achieved in that century were achieved in a piecemeal fashion. The article concludes with an account of changes made in the twentieth century in the law and practice regarding oaths to be sworn and declarations to be made by the monarch on accession to the throne.

Coke in Context: Early Modern Legal Observation and Sir Edward Coke’s Reports by Damian Powell

Our understanding of Sir Edward Coke's Reports turn upon an appreciation of his methodology as a reporter; the strengths and limitations of the Reports as a source of legal and political commentary have implications for our reading of the early Stuart constitution. This paper locates Coke's Reports within the broader habits of record-keeping and observation employed by common lawyers in the early seventeenth century. It argues that a conflation of personal observation and professional opinion, promoted through the educational techniques of English law, provided Coke with a unique opportunity to place his own views at the heart of the profession.

Thomas Craig, Sir Martin Wright, and Sir William Blackstone: The English Discovery of Feudalism by John W Cairns and Grant McLeod

F W Maitland claimed that Sir Martin Wright propagated among English lawyers the view that English law had a feudal origin and was part of a European family of law and that Wright’s opinions were popularized by Blackstone. This article demonstrates that Wright’s opinions on feudal law, its history, and its impact on English law owed a considerable amount to the Scottish author Thomas Craig, who, through Wright, Blackstone, and others, as well as independently, had a significant impact on English lawyers’ understanding of their legal history and in overturning theories of the ‘immemorial’ nature of the common law. The infusion of Craig’s European learning on feudalism into discussion of English law helped English legal history to develop. Court-Martial Jurisdiction and ex-Service Personnel: The ‘Boydell Gap’ (1948) Revisited by G.R. Rubin The ‘Boydell gap’ remedy in modern military law, which was prompted by a Divisional Court ruling in 1948, has been seen as authorizing the trial by court martial of those who, within the previous six months, had ceased to be subject to military law. The present article argues, however, that Captain Boydell’s case exposed primarily a territorial rather than a time-limitation obstacle to proceedings against ex-service personnel. Moreover, the case is historically significant in illuminating how the authorities wrestled with the problem of instituting criminal proceedings against military offenders such as black marketeers overseas when rapid demobilization was taking place.

Research Notes and Notices:

Bestiality in late-Victorian England by A D Harvey
Major Accessions to Repositories in 1999 Relating to Legal History by the Historical Manuscripts Commission
The Scottish Legal History Group
Review Article: Casting Down Imaginations: Politics and Poetry in the English Republic by Ian Ward

Book Reviews

Index to Volume 21

Abstracts of articles in Issue 21.2

The Sins of the Fathers: A Neglected Constitution of Diocletian on Incest by Simon Corcoran

‘Swimming the Witch, Pricking for the Devil’s Mark’: Ordeals in the Early Modern Witchcraft Trials by Heikki Pihlajamäki The article focuses on the problem of why ordeals returned to use in the early modern European witchcraft trials after they had been prohibited in 1215. The problem is approached comparatively and in context of the law of proof, with special focus on Scandinavia. The main argument of the article is that the use of ordeals in the early modern period was dependent on the degree of professionalisation of the legal profession and of the ‘scientification’ of the procedural system. This explains why ordeals were used more in France, Germany and Switzerland than in Scandinavia. The study also sheds some light on the rarity of ordeals in England, Spain and Russia.

Matrimonial Law in the English Ecclesiastical Courts at the End of their Jurisdiction (1828-1857) by S M Waddams

The Irish Court of Appeal in Chancery, 1857–77 by J A Dowling

The Irish Court of Appeal in Chancery was established in 1856 and began work in 1857. From then until the end of 1877 when the Courts of Common Law and Equity were replaced by the new Supreme Court established under the Judicature (Ir) Act of that year the Court sat to hear appeals against decrees made by the Lord Chancellor, Master of the Rolls or Vice-Chancellor in the Court of Chancery, against decisions of the Incumbered Estates Court or its successor the Landed Estates Court, and against decisions of the Courts of Probate, Bankruptcy and Insolvency, Admiralty, and Matrimonial Causes and Matters. The Court was the counterpart of the Court of Appeal in Chancery established a few years earlier in England, but the chain of events by which the Irish Court came into existence, along with the membership of the Court and its consequences, make the history of the Irish Court unique. The purpose of this article is to explore those issues.

Research Notes:

Occidit ... inter brachia sua: Change in a Woman’s Appeal of Murder by Susanne Jenks
Migrations of Manuscripts by J H Baker

Book Reviews

Abstracts of articles in Issue 21.1

Themed Issue: Suicide in Mediaeval England

Proceedings of a Colloquium held at Magdalen College, Oxford July 1999

When Suicide Became Felony by Roger D Groot

In their book, Royal Justice and the Medieval English Countryside, the DeWindts note a case from 1286 in which the royal justices ordered forfeiture of the chattels of an insane suicide. They cite Bracton for the proposition that the chattels of insane suicides were not subject to forfeiture, describe the noted case as ‘abnormal’, and challenge historians to investigate the matter. I have taken up the challenge and have concluded that the DeWindts are right about Bracton but are wrong about what was normal.

The Law on Suicide in Medieval England by Gwen Seabourne and Alice Seabourne

This article considers medieval English secular law on suicide. Using information in treatises and in court and inquest records of the thirteenth and fourteenth centuries, we examine the reasons why suicide was regarded as an offence, the definition of felonious suicide in terms of conduct and intention and the mechanism for detection and reporting of suicide. The picture of the law which emerges from court and inquest records has some important differences from that in medieval legal treatises. In terms of enforcement of the law, we question assumptions that juries and communities were reluctant to co-operate with what was regarded as a harsh regime driven by unforgiving religious precepts or royal revenue raising.

Suicide and the Fear of the Gallows by Henry Summerson

The law of suicide as set out in Bracton gives an important place to those who kill themselves to escape conviction for felony. Such cases were in fact few. There are interesting similarities between the way the courts treated suicides and their attitude towards suspects who stood silent in court, preferring to die under peine forte et dure, in both cases there was stress upon the deliberate nature of the act, and consequent forfeiture of chattels. But death by peine was not in practice equated with suicide, and the Bractonian doctrine which might have caused it to be so was disregarded.

Suicide in Canon Law by Eltjo Schrage

It seemed to be a simple question: ‘No doubt there must be a noticeable ecclesiastical influence on the birth of the secular legislation concerning suicide. Are you prepared to give an overview in just 20 minutes?’ The organisers of the colloquium were aware of the existence of a little guide to the sources of Medieval Learned Law and consequently they approached the author of that little guide. Soon, however, the first problem arose: where to start? Do you know a Latin noun meaning suicide? My Dutch–Latin dictionary gives only the verb: sibi mortem consciscere, which does not exactly open the gates to the sources, nor does the term manus sibi inferre. The dictionaries of Albericus, Brissonius and Calvinus suggest the word mors as a starting point, but the expression mors voluntaria seems to be used only in C. 6.22.2 and in Lactantius, Epitome 34. It is only in the seventeenth century that the substantive autochereia was coined, but the Bibliotheca realis by Lipenius and Jenichen does not refer to the earliest Canonists. Again: where to start? I am pleased to report my discoveries.

Book Review

Abstracts of articles in Issue 20.2

Russian Peasant Wills in the Decisions of the Governing Senate, 1861–1906 by Gareth Popkins

This article investigates the law of testation as it applied to the peasantry of late Imperial Russia. After a summary of the main features of the written law of wills, there follows an outline of the special position of the villagers. They had distinctive rights over property, granted as part of the emancipation legislation 1861, and also access to a simplified procedure for making a will. The investigation then turns to the case law of the high court or ‘Ruling Senate’. It emerges that Senate decisions generally emphasised and reinforced the distinctiveness of the peasantry’s legal position. However, it is also clear that the ambiguity inherent in the status of the post-emancipation peasants meant that their use of wills became a cause of controversy in the village, in the courts, and amongst academic lawyers. While comparative jurists will be interested in the description of tsarist laws on inheritance, wills, the peasant estate, and the court system per se, the subject is also of wider historical relevance on several counts.

Advocates’ Hats, Roman Law and Admission to the Scots Bar, 1580–1812 by John W Cairns

The final ceremony for admission as an advocate before the College of Justice in Scotland formerly was the delivery of a speech in Latin on a text of the Corpus iuris civilis from a corner of the bench. The intrant advocate wore a hat for this ceremony. This article discusses the procedures for admission as an advocate to argue that the ritual of wearing a hat had a symbolic meaning central to the aspirations of the Faculty of Advocates. Eventually misunderstood, the ceremony was dispensed with in the early nineteenth century.

'That Exalted and Noble Science of Jurisprudence': The Recruitment of Jurists with 'Superior Qualifications' by the Middle Temple in the Mid-Nineteenth Century by Raymond Cocks

By looking at the references of those who applied for the Middle Temple Readership in Civil Law and Jurisprudence in the middle of the nineteenth century this article reveals the seriousness with which 'a great experiment' was undertaken in the years between 1846 and 1862. New courses were established for would-be barristers. Reformers at the Inns believed that lecturers should be chosen on merit, and the use of references in this context raised novel issues. More generally, the reformers believed barristers should know about English jurisprudence and continental traditions of legal thought. It was a lively episode in which common lawyers showed interest in the ideas of English jurists and, at the same time, looked for inspiration far beyond the shores of England. In the early years at least, it was a time of hope in legal education.

Ab alio ictus; misconceptions about Julian's view on causation by Jeroen Kortmann

The Roman jurists' treatment of the problem of the 'supervening cause', has been the subject of many publications in the second half of this century. In particular, an alleged controversy between Celsus and Julian has been singled out. It is suggested in this essay that the discussions have constantly erred in the translation of D.9.2.51 pr.(Julian). This has often led to a misconception of Julian's opinion on the matter. When closely read, Julian's words, as reproduced inD.9.2.51, leave room for the view that Celsus and Julian either did not disagree at all or in any case did not disagree on the matter of the 'supervening cause'.

Book Reviews

Abstracts of articles in Issue 20.1

Latin Versions of Old English Wills by Kathryn A Lowe

The basis for the study of testamentary procedure in Anglo-Saxon England is the detailed analysis of the 60 surviving vernacular wills from the pre-Conquest period. Many other wills, however, are recorded only as Latin notes in medieval cartularies, although a few exist in fuller versions, sometimes alongside their vernacular counterparts. These texts provide an insight into the methods and priorities of scribes who had to translate and summarise vernacular documents in the early Middle Ages. This article discusses these notes, summaries and translations, and considers their implications for the study of the Anglo-Saxon vernacular wills from which such texts are derived.

Anthony Hammond: ‘Mr. Surface’ Peel’s Persistent Codifier by K J M Smith

Throughout the nineteenth century dissatisfaction with the criminal law frequently centred on its disparate and inaccessible state. For many reformers, particularly of a Benthamite persuasion, the route to salvation lay in the direction of the law’s codification. This article examines the tenacious efforts of the barrister Anthony Hammond in the 1820s to expand Peel’s limited schemes for the consolidation of criminal law statutes into a more radical, wide-ranging codification programme.

Lex facit regem v. Quod principi placuit: Dramatic Symbols of Crown and Common Law by Paul Raffield

Through an analysis of three masques presented at the Inns of Court between 1561 and 1613, this article examines the relationship between the Crown and the common law, and the competing claims of each to represent and embody the incontestable source of constitutional supremacy. An examination of the texts of these masques reveals the nature of the ideal constitution sought by common lawyers, and the role envisaged for the monarch within this Utopian state. He/She is depicted as the iconic symbol of English nationhood and unity. But the overriding theme of the masques is that the common law has existed since time immemorial and is endowed with divine authority. Consequently its sovereignty cannot be challenged by any earthly king or queen.

Research Note: Artemus Jones and the Press Club by Paul Mitchell

Jones v. E. Hulton & Co. is a leading case on defamation. The proposition which it stands for is that ordinary liability is imposed regardless of the defendant’s mental state. On the facts of Jones’ case the question of liability without fault arose because the defendant claimed that the libel complained of had been written as a piece of fiction, and that he had named one character ‘Artemus Jones’ in utter ignorance of the existence of the plaintiff, a barrister who shared that name. As this brief article aims to show, the account of the facts put forward by the defendant was false: the writer of the article knew Jones and disliked him.

Migrations of Manuscripts by J H Baker

Book Reviews

Abstracts of articles in Issue 19.3

The Rule in Cradock v. Piper (1850): Exception or Principle? by Chantal Stebbings

In Cradock v. Piper (1850) the court allowed a solicitor-trustee to charge for his professional services in relation to certain litigation This was in the absence of a charging clause, and in apparent violation of a strict and general principle of the law of trusts that trustees had to act without remuneration.The rule still exists today, though it is invariably described as anomalous and lacking any rational basis.This paper examines whether the court did indeed establish an exception to the general no-remuneration rule, or whether it applied legal principle correctly The analysis of the court's judgment, of case law, and of contemporary attitudes to professional trustees, shows that the court was correct in refusing to prohibit remuneration where the connection was too tenuous to give rise to a conflict of interest.

'But a New Button to an Old Coat': The Enactment of the Statute of Monopolies, 21 James I cap.3 by Chris R Kyle

The Monopolies Act of 1624 is the founding statute of copyright and patent law in the English-speaking Western world. Based upon the famous legal cases of John the Dyer and Darcy v. Allen, as well as the King's Book of Bounty, the Act has been seen as a symbol of the increasing power of a Parliament locked in a constitutional struggle with King James. This article argues that far from being a case of conflict between the monarch and the House of Commons, the Monopolies Act received the imprimatur of both the King and Commons against the wishes of powerful interests in the Lords.

Oiling the Machinery: The Lord Chancellor's Office and the County Court Bench, 1927–44 by Patrick Polden

This article makes extensive use of recently opened documents in the PRO to explore the appointment and management of the county court judiciary between the wars, with particular emphasis on the role of the permanent officials in the Lord Chancellor's Office. It concludes that during this period the selection process, having already been largely de-politicised, became bureaucratised, ensuring the officials a dominant role. As a result the county bench became more homogeneous. The officials are also shown to have engaged in more systematic and ambitious attempts to manipulate vacancies so as to fit judges to districts both in terms of aptitude and other attributes.

Justinian's Institutional Classification and the Class of Quasi-Delict by Olivia Robinson

The annual blister approaches; the time is at hand for the lecture on obligations arising as though from delict. But how to make sense of what we are told in Justinian's Institutes? The first, the most obvious, problem is the classification itself: what holds together the four forms of behaviour described in Institutes 4.5 as arising quasi ex delicto? It is my contention in this paper that we do not need to take this aspect of the problem too seriously, because much of the classification in the Institutes is bogus. For ease of teaching, a symmetrical view of the law was put forward which did not correspond to reality. After having – I hope – proved this point, I shall then look briefly at the quasi-delicts, including the most awkward case, the iudex qui litem suam fecerit.

Some Cases from the Defamation Jurisdiction of the Archdeaconry of Richmond by David Hewitt

Unusually, the archdeaconry of Richmond had two consistory courts, one in Chester and one in Richmond. This may well be the first study to be based upon the Richmond records. The mid-sixteenth century 'explosion' in the ecclesiastical defamation workload which other commentators have identified was being felt later, possibly by as much as a century, in Richmond than anywhere else in the country. The Richmond records provide the first firm evidence that the ecclesiastical courts were prepared to countenance defamation actions based upon the wrongful imputation of murder. Allegations of sexual irregularity were by far the most common subject of ecclesiastical defamation actions. Women were most likely to complain about allegations concerning their constancy; men for those touching upon their probity.

The Conclusion of Austin's 'A Note on Interpretation': Is it Missing or Misplaced? by Robert G Scofield

John Austin's essay, 'A Note on Interpretation', appears in his Lectures on Jurisprudence or the Philosophy of Positive Law. At the end of the essay is a note by Austin's wife, Sarah. The note states that the conclusion of the essay is missing. In this paper I argue that the conclusion of the essay appears 363 pages earlier as a fragment following Lecture XXXVII.

Notice: Royal Commission on Historical Manuscripts: Major Accessions to Repositories 1997

Book Reviews

Index to Volume 18

Abstracts of articles in Issue 19.2

The Antecedents of Finnish Family Laws: Legal Tradition, Political Culture and Social Institutions by David Bradley

This article examines aspects of the development of legal policy relating to the family in Finland during the period from 1809, when the country was incorporated within the Russian Empire, to the cessation of the Winter War with the Soviet Union. Its objective is to set the antecedents of contemporary Finnish family laws in the context of political culture and social policy and institutions. A dominant theme considered here is the extent of the commitment in Finland to traditions shared with Sweden.

Controlling Commercial Morality in Late Medieval London: The Usury Trials of 1421 by Gwen Seabourne

This article examines evidence from a series of usury trials which took place in London in 1421, in order to draw conclusions both about the specific matters which were being dealt with in those cases, and about the way in which usury was regarded and prosecuted in early fifteenth century England. The article also relates the London cases of 1421 to the other rules about and mechanisms for prosecution of usury in fifteenth century England, most importantly the law and practice of the church. It concludes that church courts dealt with different types of usurious conduct to that shown in the 1421 London cases. The broad conclusion of the article is that the 1421 London cases show that the law against usury was by no means a dead letter outside the jurisdiction of the church in late medieval England: in London at least, it was part of a burgeoning and increasingly sophisticated commercial jurisdiction.

An Early Tudor Debate on the Relation between Law and Equity by Georg Behrens

This paper sets out the debate about Chancery between Christopher St German and an anonymous 'Serjeant at the Laws of England', focusing on the jurisprudential problem most fundamental to the debate: whether conscience and equity can 'follow' the law while at the same time 'mitigating its rigour'. It also describes the theory of law, equity and conscience which St German develops in the effort to resolve this problem, noting that he intended this theory also to serve as an apology for the institutional separation of law from equity. Finally, it shows that the theory is ineffective in its role as an apology. Although the separate jurisdiction of Chancery was able to weather the jurisprudential challenges of the 1520s and 1530s, it did so less in virtue of the explicit doctrinal justification it received from the pens of theorists like St German, than in virtue of pragmatic considerations recognised both by the Chancellors and by the litigants who sought their help.

Research Notes: An Uncompleted Work by Henry Swinburne on Matrimony by Sheila Doyle

Book Reviews