First Steps in Legal Historical Research, Mainly for Law Students
Whether you are interested in ‘tracing back’ a particular point, or doing a more in-depth piece of writing on legal history or the law as it stood at a particular time, you will probably be aware that you are moving into new territory, intellectually and practically. This short guide (which is a work in progress, and will be updated from time to time) is intended to help you avoid some of the more obvious pitfalls, and to point out some of the useful resources for this sort of research.
The dangers of apparent familiarity
As a law student, you have been drilled in researching the law using formal legal sources – statutes and cases – perhaps with the aid of textbooks. Travelling backwards in the history of the law in England and Wales, you will find that roughly equivalent sources exist, but the differences really do need to be borne in mind. Thus, the further back you go, the less like modern law reports you will find ‘law reports’ to be. Prior to the mid-nineteenth century, they are ‘unofficial’; they may be short and they may not give you the information you are looking for. If you get back before the 1700s, you will find that some original legal materials are not in English, but in ‘law French’ or Latin. Even after that, they may be peppered with terms in these languages. As far as statutes are concerned, there are disagreements or uncertainties about the texts of many early statutes, and, again, they are in Latin (and sometimes French) before the Tudor period. The idea of writing a comprehensive textbook on a particular branch of law, of the sort you would recognise from, say, Tort, or Contract, was, on the whole, a relatively late development. There are certainly important treatises and attempts to describe large swathes of the law – you may encounter names like Glanvill, Bracton, Coke and Blackstone but these are not quite what you would expect, if you are looking for a modern-style text book. They may be concerned more with procedure than with substantive law, and their legal categories may not be those with which you are familiar.
The dangers of ‘time-hopping’
A very tempting way of starting off in this sort of research is to take a modern case on the point in which you are interested, and to trace back via the authorities used in argument. That is not wrong, but it needs to be approached with care. You need to bear in mind that lawyers in a later case are not interested in historical truth, in giving the most accurate possible picture of the older case in its own legal context: in an adversarial system, they are interested in using the text of the report to the advantage of their present client. This will not necessarily amount to the same thing. Even leaving aside the distortions likely to come from the use of historical materials within the adversarial context, modern lawyers do not always appreciate important points about older legal materials. In particular, I have observed a lack of understanding of the relevance, in interpreting older records and reports, of forms of action (writs etc.) and of the very different position with regard to jurisdictions, hierarchies and appeals, which prevailed before the late 19th century.
A particular cautionary tale of coming to historical legal sources and using them without paying attention to those who have been there before is provided by the recent misinterpretation by Naomi Wolf of records relating to execution for homosexual offences.
A certain circumspection, and a degree of humility, are, therefore, required in moving into territory which is co-owned with scholars from a historical background. There is a lot of wonderful work in legal history (including ‘recent’ legal history, which lawyers may sometimes think of as not history at all): it is surprising how often it is not consulted.
Actually doing it
All of those warnings having been given, it is time for the positive part. There is no reason that a good law student cannot do good legal historical research. Just do some preliminary reading on the legal system and law of the period in which you are interested, and approach the sources with a degree of caution.
It is wise to make sure you have a good secondary text to hand – there is nothing quite so comprehensive as J.H. Baker’s Introduction to English Legal History (5th edn, Oxford, 2019). This is not really an ‘introduction’ – it runs to about 600 pages – though its coverage of different topics is at different levels (much more detail on land law than crime and family, for example). For later periods, the Oxford History of the Laws of England vols 11-13 are very useful.
Once you have got the basic idea of your area, you will want to find out what others have written about it. Baker has good references at the end of each chapter. Beyond this, you can approach this via the usual Law databases and catalogues, but also consider using the Bibliography of British and Irish History or more specialised historical bibliographies. I include a starter-list for several different areas at the end of this guide.
The next logical step is to engage with some primary sources. Here are some notes and thoughts on that process.
The classical sources: cases, statutes, treatises
See Baker c. 11 for a run-through of types of legal literature. Older statutes can be approached via the Statutes of the Realm volumes (though these have their faults) and cases via a variety of sources, from original manuscripts, through edited collections by organisations like the Selden Society, to electronic databases. Online searches are a very good place to start, since, in the past few years, a large amount of information relating to legal history has been made available on the internet.
Legislation and records of government activity
Pre-1215 laws are being placed online via Early English Laws project.
Statutes of the Realm (to 1713) can be found via Heinonline > English Reports.
British History Online has some content available free, (including the Victoria County Histories, Calendar of Papal Registers, parts of Rymer’s Foedera and journals of the early modern houses of parliament). Other items, such as the Parliament Rolls of Medieval England and the Calendars of Close Rolls, however, are only available with the ‘premium’ subscription service.
Calendars of Fine Rolls from the reign of Henry III have been made available free as part of the Fine Rolls Project.
The National Archives website gives links to freely downloadable images of its class SC8 (‘Ancient Petitions’) which include many petitions to the king, his council, Parliament and royal officers. These documents are usually in Norman French. The National Archives catalogue, Discovery, is itself a useful resource, with helpful descriptions of documents and classes of documents, and a number of research guides.
A search for parliamentary debates and papers can be started here.
A major project led by R.C. Palmer and E.K. Palmer at the University of Houston has made available, free of charge, high-quality images of the rolls of the royal courts of medieval and early modern England (and, to a limited extent, Wales): Anglo-American Legal Tradition. There are King;’s Bench, Common Pleas, Exchequer, eyre records and other categories. This material is not, however, particularly ‘user-friendly’, since there is no index or search facility, and in order to understand it, some knowledge of Latin and palaeography is required.
Another American project, led by D.J. Seipp at Boston University, has catalogued and cross-referenced all of the Year Books (lawyers’ reports of the pleading in notable cases in the central courts in medieval and early-modern England). Links to images of the printed ‘black letter’ Year Books are included where appropriate. The search facility is particularly good. This resource is mainly in English, though the original records themselves are in ‘Law French’ – a version of Norman French. A working knowledge of modern French and recourse to J.H. Baker, A Manual of Law French (1979) usually suffices for their translation.
Bracton’s Note Book (thirteenth century cases, Latin) is available in HeinOnline’s Legal Classics Library.
The English Reports, the great collection of ‘nominate’ law reports covering cases from medieval times to the Victorian period, are available via Westlaw and as part of the Library’s subscription to HeinOnline. Note that some of the earlier English Reports are, in fact, in Law French, with occasional formulaic Latin.
An important resource for criminal law is the Old Bailey Project, with many reports of criminal trials from the seventeenth to the early-twentieth century
Miscellaneous records from a variety of courts (especially London’s local courts) are available in British History Online.
Twentieth century cases are found in the normal series of law reports, many of which can be found online.
Bracton is available (Latin and English) here.
Many other treatises, including Blackstone’s Analysis and Commentaries, and Coke’s Institutes are included in HeinOnline’s Legal Classics Library. Note that the versions of ‘classics’ on HeinOnline are not necessarily either the earliest or the latest version, nor, in the case of works originally not in English, are they necessarily the best translation available.
Newspapers, pamphlets, periodicals can be good sources – lively and opinionated, if not always reliable. These are published online in various ‘packages’ to which university and some civic libraries will subscribe. I have found the collection 19th Century British Periodicals, to which my library subscribes – particularly helpful for teaching purposes, particularly for pictures and satirical accounts from periodicals like Punch, Funny Folks and Judy, the Conservative Comic.
The Oxford Dictionary of National Biography is available, and fully searchable, online. This gives biographies of many law-makers and lawyers as well as some notorious criminals and victims of crime. It has an unsurprising focus on ‘great men’, but includes much useful material.
The Bibliography of British and Irish History is a good place to start for all British and Irish historical monographs and articles. Also at this address are specialised medieval international bibliographies.
The major legal history journals, such as Journal of Legal History and Law and History Review are available online.
Relevant articles also appear in ‘straight’ history journals (many available online), though these are overwhelmingly about the history of criminal law rather than other aspects of legal history.
The Internet Text Archive is worth a look if you are after older (printed) public records, local records or chronicles. Whether or not a book is here is somewhat random, but I have used it a lot, when there are issues with library provision.
Blogs: legal historians are slowly moving into the blogosphere. Unsurprisingly, crime is a popular area, but there is other material out there. See, e.g., Law and History Review and Legal History Miscellany. The National Archives also publish a lot of relevant material, and, like many scholars working on legal history, they are active on Twitter.
revised July 2021.