vifgage – Bristol Centre for Law and History Research

Inside the British Legal History Conference 2024: the organisers in conversation

Posted on August 29, 2023August 29, 2023 by vifgage

Corn Exchange Clock, Bristol.

In July 2024, the University of Bristol Law School and the Centre for Law and History Research will welcome legal historians from the UK and the world, as Bristol hosts the 26th British Legal History Conference. This is a major gathering of those working on histories of law, held every two years at a different UK university, and returning to Bristol for the first time since the early 1980s. The academic organisers are Gwen Seabourne and Joanna McCunn, and here they are, ‘in conversation’, to share a few thoughts on the conference.

GS: Well, less than a year to go (see clock above for clunky visual allusion to passing of time): a little bit scary, but we have made quite a lot of arrangements already. I am especially pleased with the conference theme. Will you tell the nice people on the internet about it, Joanna – what it is, and what sorts of things we hope to hear about?

JM: Yes – it’s all very exciting! Our theme is ‘Insiders and Outsiders in the History of Law’, which was really inspired by the legal history of Bristol itself. Bristol has been a significant gathering place for legal ‘insiders’, like lawyers and merchants, for centuries, but it’s also been an important site for legal ‘outsiders’, who have been involved in protesting, reforming or resisting the law.

We’re hoping to bring these two sides of Bristol’s history together, and to hear about powerful legal actors as well as those who have been marginalised by the law: enslaved people, women, LGBTQ+ people and so on. We’re also interested in how the law draws dividing lines more broadly, and in whether there might be ‘insiders’ and ‘outsiders’ in the study of legal history itself.

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Goose Thievery and the Threat of Australia: Insights into Local Community Life Provided by 18th and 19th Century Criminal Trials at the Old Bailey.

Posted on August 21, 2023August 29, 2023 by vifgage

[GS: I am very pleased to include this blog post from Matthew Parish, one of our former legal history students. Matthew is currently completing his LL.M. at the University of Bristol, having graduated from the LL.B. last year. His interest in legal history was sparked by the legal history unit, and, in his own words, he was ‘hooked by tales of goose thievery, witch trials, and clandestine marriages, and became increasingly aware of the historical contingency of contemporary law and the importance of understanding the social, cultural, and intellectual forces that shaped it’. After the LL.M., he is off to work at the Law Commission as a Research Assistant for 2023/24 – and then hopes to return to academia and undertake a PhD, pursuing his passion for all things legal history. Many thanks for this, Matthew, and now, on with those geese …]

Awaking early on the morning of the 8^th of September 1866, Thomas Clark, a farmer of Lewisham Village, opened his stable doors and witnessed a scene that horrified him. The stable, which had just the night before been alive with much squawking, clucking, and avian merriment, now lay silent. His 14 geese had vanished! Later that same day, in the Earl Grey pub of Lewisham Village, 3 men happened to be selling geese. “Six for a sovereign”, they cried. Evidently hungrier than James Ware – the other bystander present to the tantalising offer (who had decided to reject the bargain) – Fredrick Haynes accepted and paid 3s for a goose. Fortunately, this is not the opening to Sherlock Holmes’s shortest and dullest adventure. Instead, it is a criminal case, held at the Old Bailey on the 22^nd of October 1866. Indeed, the mind of a great detective was not required. Local policeman John Moore possessed facilities enough to link the disappearance of geese from a local farm in the morning, to the sale of geese in the local pub in the evening. Guilty verdicts for animal theft were secured for 2 of the 3 men.

What to 21^st-century readers may seem to be the least cunning criminal plot imaginable may provide historical insight into 19^th-century England. If nothing else, the case of the 14 missing geese highlights the centrality of the local village community to 19^th-century life. John Hibbert, one of the convicted goose thieves, was well known within the community, and, according to a local villager, regularly demonstrated his hard-working character in the neighbourhood. Thus, the entire scope of the crime was within the boundaries of a small community; the geese were stolen by local men from a local farm and sold at the local pub. One explanation for such a locally situated and blatant crime may be the weak intellectual prowess of the thieves. Alternatively, and perhaps cumulatively with the former explanation, the locality of the crime may indicate the centrality of the local community to the lives of those living within it, with individuals unable to conceptualise, and unwilling to pursue, a broader world of criminal and non-criminal enterprise beyond the narrow boundaries of their community.

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‘Escapades’ and Labour: Chaucer, Chaumpaigne and Legal History

Posted on May 9, 2023May 26, 2023 by vifgage

Wills Memorial Building, Bristol, which may or may not be the location of our conference ... oh go on University of Bristol, be fair ...

In the first half of this academic year, a lot of interest was generated by discussion of newly-discovered documentary evidence relating to the life of medieval English poet and author, Geoffrey Chaucer. This was explored in a special edition of a literary journal, The Chaucer Review. Something new about Chaucer was of great interest to scholars of medieval literature, of course, but the subject-matter of the new evidence also drew in a wider audience, since it dealt with an episode in Chaucer’s life which was not primarily connected to his writing: an apparent accusation of rape. As somebody who has taken an interest in the issue of rape and sexual misconduct in medieval common law, I was keen to see the new evidence, and to think through its implications for Legal History, as well as the possible contributions which a legal historian could make to scholarship here. This post sets out some preliminary thoughts.

First of all, let me give a quick outline of the ‘Chaucer/Chaumpaigne episode’, for those who are not familiar with this, or with the heated debates which have surrounded it. In the 1870s, Frederick Furnivall, a Chaucer scholar, turned up a record from 1380 which seemed to suggest that Chaucer had been accused of rape by a woman called Cecily Chaumpaigne. This record was the release of Chaucer, by Chaumpaigne, from all proceedings de raptu meo, a Latin phrase which may – or may not – be translated ‘relating to my rape’. This led to much discussion, as to whether Chaucer should or should not be regarded as potentially having been a rapist, and to a number of literary scholars engaging with the issue of just what raptus meant in this context. Different views were possible, since the word was used to cover not only what we now understand ‘rape’ to include, but also other offences focusing on abduction or removal (often called ‘ravishment’) rather than sexual violation. Further connected material was found in the 1990s, stoking the fires of debate once again, and then we had the find in very recent times, which was ‘launched’ in late 2022.

The new material showed that Chaucer and Chaumpaigne had been on the same side in other legal action not long before the ‘Chaumpaigne release’, when they were defendants in an action relating to employment. A certain Thomas Staundon proceeded against both of them for an offence under the Ordinance and Statute of Labourers (1349 and 1351). The nub of the case was that Chaumpaigne was, and should, by law, have remained in, the employment of Staundon until the end of her contract, but had (by some means) moved from that employment to work for Chaucer. The word raptus could have been used here, whether the leaving of Staundon was in accordance with Cecily’s will, or against it. The reasonable deduction from the new material is that the ‘Chaumpaigne release’ was part of this ‘labourers’ case concerning the removal of a contracted worker from the employer to whom she was bound.

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Subject to Time

Posted on January 17, 2023May 26, 2023 by vifgage

The law has a long memory – forget elephants, it looks far beyond any ordinary mortal span. Technically speaking, its memory kicks in on 3 September 1189.[i] But even the best memories suffer from deterioration. With such a lengthy span to cover, it is an inevitable commonplace of legal history that facts become lost. Records of rules or events might never be made. Or, if records are made, these might not survive or survive only partially. Those versed in the law also pass on, and might be replaced by others who sing the verses rather differently.

Sometimes, though, knowledge can be lost surprisingly quickly, without any of the standard traumas of intervening centuries. And this sort of loss can occur even in the modern context.

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Courtesy, curtesy and houses of cards

Posted on February 4, 2022May 26, 2023 by vifgage

In a few weeks, I will be amongst the speakers at an online launch for the collection of papers by the late David Sellar, edited by Hector MacQueen. My job is to give some thoughts about the importance of Sellar’s work and ideas, from the perspective of English legal history.[i] There is a great deal in the book which would be of relevance to this theme, but the first thing which leapt out at me, looking over the collection, was an old friend – his article on courtesy.[ii] Courtesy, or ‘tenancy by the courtesy of Scotland’ was the life interest (liferent) which a widower might acquire in land brought to a marriage by his wife, on certain conditions, and was part of Scots common law from the medieval period onwards (only finally being removed in the twentieth century). A very similar institution existed in the common law of England: ‘tenancy by the curtesy of England’. The reason this Sellar article is an ‘old friend’ is that it is something I have consulted in at least two different projects of my own. The first of these was work leading to an article on medieval English curtesy; the second a very recent project – a chapter on intractable factual uncertainty in the early stages of life, for a collection on intractable factual uncertainty more generally. Sellar’s article was very useful for both of these. I think that it also has implications for the way in which those working on English legal history conduct their research.

The central focus of the article is a particular dispute at the highest levels of fourteenth-century Scots society, and, as one would expect from an expert on the genealogy and heraldry of Scotland, we get a good account of the characters involved. The opposing parties were James Douglas and Thomas Erskine. James Douglas (JD), one of the many holders of that name who crop up in the history of Scotland, would later be known as Sir James Douglas of Dalkeith. He was nephew and heir-male of William Douglas of Liddesdale (WD: there are quite a few William Douglases to deal with as well, our William was killed by another William Douglas, one who would later be first earl of Douglas). The fact that JD was heir-male meant that on WD’s death, he acquired the lands which were limited to the male line. The other lands went to WD’s daughter, Mary. Mary’s marital history is quite interesting (there was an annulment in there) but the key fact for these purposes is that she was married to Thomas Erskine (TE), at some point before 1367. Mary died giving birth to their child, and the child – to put it neutrally – did not survive. JD was Mary’s nearest heir (and if this took full effect, he would ‘scoop the pool’, taking all of the land previously held by WD. TE, however, had different ideas.

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Considering the appeal of mayhem

Posted on October 25, 2021November 10, 2021 by vifgage

At the moment, I have the great privilege of a year’s research leave from my job in the Law School. It is wonderful to be able to make some progress on a number of projects which have been gathering metaphorical dust during the last couple of years, during the constraints of the pandemic and the challenges of life and teaching in this period. So far, I have spent time working on ‘bastardy’ and ‘petty treason’, and will be writing up that work more formally later in the year. Now, though I am turning my research energies in another direction, looking at the medieval appeal of mayhem. As I do so, I thought it might be appropriate to write a quick blog post giving an outline of the area, and a few thoughts on why I think this is something worth examining.

So … explain the appeal of mayhem

Well, the appeal of mayhem was a legal action like this one, from a 1491 legal record, in which (to summarise) Walter Chapman prosecuted Thomas Preston and three others for having attacked him with staves and ‘clubbes’, hitting his legs (specifically his lower legs) and causing him to ‘lose the use’ of them. Assuming that there was such an attack, Walter, clearly, survived it (he alleged that it had happened ten years before). Now, he was seeking compensation for his injuries.[i]

The appeal of mayhem was a particular sort of legal procedure, for a particular sort of non-fatal injury. It was not an attempt to overturn a decision (a more modern understanding of ‘appeal’), but an individual prosecution. This appeal procedure was available in relation to serious criminal offences, including mayhem. The consequence of a successful appeal of mayhem was, a financial penalty, and a compensation payment to the successful accuser, though sources from the thirteenth century onwards are rather fond of noting that, in even earlier law, the principle of ‘member for member’ applied, condemning the convict to a mutilation fitting the crime.

So much for ‘appeal’; what is ‘mayhem’? It is now a word with a broad scope. It can suggest general violent disorder. Sometimes it is also used in a slightly softer sense, to indicate fictitious and twee transgression (see the sneering term ‘Mayhem Parva school’ for rural murder mysteries). Moving even further to the unthreatening end of its spectrum of meaning, it doesn’t strike us as inappropriate for use in the naming of the house band on The Muppet Show (Dr Teeth and the Electric Mayhem for anyone not versed in high culture), or a contestant on RuPaul’s Drag Race (one Mayhem Miller – thank you, internet). For the legal historian, however, the word also has a very specific meaning – a particular sort of non-fatal injury.

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Research leave and supervening events: a conversation with Dr Chathuni Jayathilaka

Posted on August 22, 2021November 10, 2021 by vifgage

This part of the academic year marks something of a ‘changing of the guard’, as some colleagues finish a year of research leave, and others begin their own period of research leave. One person from the Centre of Law and History Research who was ‘away’ in 2020-21 was our resident Scots law and legal history specialist, Dr Chathuni Jayathilaka. A quick interview for the blog seemed in order, to see what she has been up to, and to document the experience of pandemic research, for the legal historians of the future. She was duly cornered and interrogated by Gwen Seabourne.

GS: How has it been, trying to do research in this oddest of years, Chathuni? What difficulties have there been, and have you found any creative ways around them?

CJ: It’s been an interesting experience! I have been surprised by how much you can do with just a laptop, a good internet connection, the university library’s subscription to various databases and the aid of resourceful librarians. But there have been limitations as well: I had to redesign my projects for this year because I realised that the projects as originally conceived would run into problems created by an inability to access key sources. I’m not sure redesigning an entire project counts as finding a creative way around the problem…

GS: What have you been researching?

CJ: I have been working on two papers, both to do with the law’s response to supervening events which render contractual performance impossible. The first paper explores why the English contract of sale for goods has both a doctrine of frustration and a rule on the passing of risk. The second paper examines the concept of fault in relation to supervening events through a historical lens.

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‘Four seas’ and an island delusion: some thoughts on ‘bastardy’ doctrine

Posted on August 11, 2021August 11, 2021 by vifgage

In August 1850, a jury in Liverpool heard the case of Wright v. Holgate. The jurors’ job was to make a decision about the ‘legitimacy’ of a child, Tom Wright. Was this three-year-old the ‘lawful’ offspring of Thomas Wright, butcher and cattle dealer, and his late wife, Susannah, or was he another man’s son, and thus a ‘bastard’ (specifically, an ‘adulterine bastard’)? The question had arisen during a dispute about property of the Holgates, Susannah’s family, who were cattle dealers of some standing in the Halifax area. If Tom was ‘legitimate’, he had a share; if he was a ‘bastard’, he did not. The jury heard a selection of views on the former spouses from acquaintances and neighbours, brought in to comment on whether they had had the opportunity to have sex at the relevant time, so that Thomas might be Tom’s biological father, and on the character of Susannah. She was portrayed, in the somewhat gossipy testimony, as ‘no better than she ought to be’, and given to entertaining a variety of men other than her husband at her house. After only a short discussion, the verdict of the twelve male jurors came back: ‘bastard’.[1]

As far as the law of the time was concerned, that was the end of Tom Wright’s importance, and, since the relevance of ‘bastardy’ in legal and social terms diminished massively over the course of the twentieth century, this case might well raise in the minds of modern legal scholars that cold dismissive phrase: ‘of no more than antiquarian interest’. Even so, I am going to use this post on our newly-launched blog to suggest that there are, in this case, and in this area, some things which are worth the attention of thoughtful legal scholars of the twenty-first century, as well as those of us who are unashamed of our antiquarian tendencies.

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Welcome to our new blog

Posted on July 1, 2021July 1, 2021 by vifgage

Hello and congratulations on finding the new blog of the Centre for Law and History Research! Based in the School of Law, University of Bristol, we are academics specialising in different aspects of the history of law, both as teachers and as researchers. We are interested in the study of law in particular eras, but also in the development of legal ideas and practices over long periods, and in matters from contractual interpretation to conscientious objection, flogging to frustration, patents to petty treason.

The Centre had its launch event early in 2020, and shortly afterwards, life and work took an unexpected turn, with the onset of the global pandemic. The extended lockdowns and restrictions have made us conscious of the importance of online communication between like-minded scholars, and we have decided to set up this blog to report on our work and activities. We have some interesting things in the pipeline, including an exciting joint venture with colleagues at the Universities of Cardiff and Exeter. All will be revealed in due course …

Gwen Seabourne (Centre Director, 2020-21).