JOURNAL: The Journal of Legal History XLVI (2025), No. 3

 

A New Manuscript Witness of William Fleetwood’s ‘Instruccions coment et en quell maner Statutes serrount expoundes’ (c. 1578) (Jonathan McGovern) 

DOI 10.1080/01440365.2025.2535581
Abstract:

This article introduces and transcribes a hitherto unidentified manuscript witness of William Fleetwood’s ‘Instruccions coment et en quell maner Statutes serrount expoundes’ (Folger Shakespeare Library MS X.d.656). It proposes a revised account of Fleetwood’s work on statutory interpretation. Scholars have failed to distinguish between two separate works on statute law composed by Fleetwood. The first is ‘A discourse upon the exposicion & understandinge of statutes’, written in English between 1557 and 1571, and edited by Samuel E. Thorne in 1942. The second is ‘Instruccions coment et en quell maner Statutes serrount expoundes’, a digest from Plowden’s Reports written in Law French in c. 1578. Both texts were later combined into a single English treatise, printed in 1657. This later act of compilation has confused later scholarship by occluding the fact that the two texts were originally independent compositions.

The Archival Sources and the Administration of Criminal Justice: Using the Scottish Justiciary Court Records (Stephanie Dropuljik) (OPEN ACCESS)
DOI 10.1080/01440365.2025.2561571

Abstract:

This article examines the records of Scotland's early modern criminal court, the justiciary court, which sat in Edinburgh. The focus is on the JC2, JC6, and JC1 series of records. While some of these records have been selectively published, their formation, compilation, and custodial practices have not been thoroughly studied before. This study represents the first in-depth investigation into these records and draws several significant conclusions. By analyzing the court's administrative practices, this study sheds new light on criminal justice administration, the court's clerking and record-keeping traditions, and how these records were created. It also identifies a previously unrecognized change in practice – the discontinuation of minute books. By revisiting these archival records, this article aims to reveal valuable insights into the justiciary court's practices and to enhance our understanding of its record-keeping traditions.

The Satsuma Mutiny and the Inter-colonial Origins of the Fugitive Offenders Act 1881 (Ivan Lee)

DOI 10.1080/01440365.2025.2530429
Abstract:

This article explores the origins of the Fugitive Offenders Act 1881, which regulated the surrender or ‘rendition’ of fugitives between British territories until 1967. Notable as the precursor to modern laws regulating extradition between independent Commonwealth nations – laws that still exist today – the 1881 Act was enacted after a mutiny on the Satsuma, a British merchant ship, in 1874. The story of this mutiny and its legal context has never been told. Recorded in court depositions, newspaper reports, and official correspondence, the Satsuma case involved five seamen who, after mutinying at sea, fled to Melbourne, London, and Hong Kong. Imperial and colonial officials struggled to bring the mutineers to justice, as the case exposed the inadequacies of existing laws for arresting and trying fugitives who crossed the many internal borders of the nineteenth-century British Empire. Earlier attempts to reform the law had failed owing to official inaction, parochialism, and deference to the imperial repugnancy doctrine. Where those attempts failed, the Fugitive Offenders Act succeeded in creating a new rendition regime, anchoring the imperial history of international criminal law.

Book reviews:

• Execution, State and Society in England, 1660–1900 by Simon Devereaux, Cambridge, Cambridge University Press, 2023, 19+ 378 pp., £100 (hardback), ISBN 978-1-009-39215-0 (James Gregory)
• The Immigration of Irish Lawyers to Australia in the 19th Century: Causes and Consequences by the late Dr John Kennedy Mclaughlin AM, Sydney, Federation Press, 2024, v-xxv, 292 pp, AU$79.95 (hardback), ISBN: 978-1-76002-453-6 (Mark Lunney)

Read all articles here.

JOURNAL: The Journal of Legal History XLVI (2025), No. 2

 

 

The Principle of Punishment in Classical English Law (Nicholas Sinanis) (OPEN ACCESS)

DOI 10.1080/01440365.2025.2511590
Abstract:

Much of the nineteenth century is well-known to have been a period in which fundamental principles of English private law first came to be subjected to scientific treatment. Such was the significance of this period that it was assigned the epithet ‘classical’. Among the principles to have first been subjected to such treatment were those specifically concerned with the recovery of civil damages in actions at common law. This article systematically traces the process by which modern private law’s most controversial civil recovery principle – that of punishment in tort – came to be treated scientifically during this classical period. In doing so, it sheds new light on how a substantive common ‘law’ of punitive damages first actually arose.

Rescuers or Pirates? The Steamship Lomonosoff’s Escape from Murmansk and the 1920 Trial (Jeff Eden) 
DOI 10.1080/01440365.2025.2511591
Abstract:

In February 1920, as the Russian White Army fled from Arkhangelsk and Murmansk, a group of British and Belgian soldiers jumped aboard the Russian steamship Lomonosoff and escaped to safety. The group later claimed they had saved the ship. Suing for a salvage award in a British court, their case would become a touchstone in the annals of maritime law. But was the Lomonosoff really saved from Russia, or was it stolen? If it was stolen, from whom was it stolen – from its non-Bolshevik Russian owners, or from the government in the Russian north? Did the north have a government at the time the ship was stolen, or was it in a state of anarchy? If it had a government, was it a Bolshevik one? And if the Bolsheviks had been in control, was their government recognized by the British courts? Finally, there was the question of whether saving oneself by using others’ commandeered property is really an act of ‘salvage’. These questions and others were at stake in the momentous court case, which this paper explores using newly uncovered documents from British and Belgian archives.

The exclusion of the Dáil courts and the Privy Council appeal from the creation of the courts of the Irish Free State, 1922–1924 (Thomas Mohr) 
DOI 10.1080/01440365.2024.2447003
Abstract:

This article compares the attitude of the Irish government in power in the early 1920s towards two differing judicial institutions that were omitted from the Courts of Justice Act 1924. This pioneering legislation created the system of courts that largely persists in the modern Irish State. The first object of comparison concerns the attitude of the Irish government of this period towards the ‘Dáil courts’ that had been created by Irish nationalist authorities in 1920 in opposition to the official courts of the United Kingdom in Ireland. The second concerns governmental attitudes towards the appeal from the Irish courts to the Judicial Committee of the Privy Council, the final appellate court for most of the British Commonwealth and Empire. This article argues that the sidelining of these differing institutions by this important legislation has more shared features than is immediately apparent. Both institutions were influenced by the 1922 Constitution of the Irish Free State. The Irish government accused both judicial institutions of incompetence and bias in interpreting Irish law. Their common marginalization by the Courts of Justice Act 1924 also reflects dual political challenges facing the Irish government in the early 1920s.

Scottish Legal History Group Report 2024 

Migrations of Manuscripts 2024 (John Baker)

Read all articles here.

JOURNAL: The Journal of Legal History XLV (2024), No. 2

The Common Law and Civil War in Fourteenth-Century England: The Prosecution of Treason and Rebellion Under Edward II, 1322–1326 (Sophie Thérèse Ambler) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2369416
Abstract:

What did it mean for poor and middling men and women to take up arms against their government? How did they negotiate competing claims for their participation in civil war and what consequences confronted them? This article analyses the crown’s investigation of its opponents following the 1321–22 civil war, comparing its predecessor of the Montfortian civil war (1263–67), to examine how the king, justices and juries tackled these questions. It demonstrates how the crown rooted the summary conviction and execution of Thomas of Lancaster and other noble insurgents in common law procedure; then, at the King’s Bench and a special inquiry in the Welsh Marches, re-framed treasonous offences to tackle non-noble insurgents; then, fearing a new uprising, instrumentalised the common law’s machinery to gather military intelligence. The crown recognized the agency of subjects across society in civil war and juries were ideally placed to investigate it; they also weighed subjects’ culpability, balancing obligation to the king against the mitigating realities of coerced participation in war. Thus, juries and the communities who informed their verdict were invited to engage with the ethical and legal dilemmas of civil war. This article thus presents a people’s history of treason.

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts: The Van Diemen’s Land Dog Act Controversy of the 1840s – Part One (Ian Loveland) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2369421
Abstract:

By 1865 British Imperial governments had accepted that colonial courts had the authority to invalidate colonial statutes which contravened the relevant colony’s constitution. This situation arose notwithstanding the lack of any express grant of such jurisdiction to colonial courts in Imperial or colonial legislation. This paper evaluates the first instance of a colonial court asserting that jurisdiction, during the Dog Act crisis in Van Diemen’s Land (Tasmania) in the 1840s. Part one of the paper charts the background to, conduct of and judgment in the relevant litigation. The second part, which will appear in a future issue of this journal, explores the consequential attempts of the colony’s Governor to remove the judges from office and to re-enact the invalidated colonial law. The suggestion made is that the Dog Act controversy provides considerable insight into how, despite the absence of any explicit statutory grant of such jurisdiction, the power of judicial review of colonial legislation by colonial courts became established as an orthodox element of British colonial constitutional law in the latter nineteenth century.

Crime, Trade Marks and Soft Trade Policy in the Interwar Era: Market Realities and the Merchandise Marks Act 1926 (Elena Glover) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2369420
Abstract:

This article explores a facet of the relationship between trade marks and the criminal law in the UK in the interwar era, a pivotal period of transition in UK economic policy from free trade to a more managed economy. Drawing together insights from legal, business and economic history, we show that, in the interwar years, the context of domestic politics and wider international trade policy, produced a greater focus on the relationship between trade marks and market-place understandings of the national origin of manufactured products. This context included the passage of the Merchandise Marks Act 1926, a criminal law statute that stipulated the circumstances in which imported goods were to be marked with an indication of national origin, and included a criminal offence regulating trade marks enforced by prosecutions brought by the Board of Trade. We argue that the criminal law regulating trade marks became entwined with ‘soft’ trade policy, i.e. a means of protecting the domestic/Empire market falling short of tariff protection. Drawing on substantial original archival research, we explore the problems that confronted the Board of Trade when it enforced the 1926 Act in view of market realities.

Book reviews:

• Contractual Relations: A Contribution to the Critique of the Classical Law of Contract by David Campbell, Oxford, Oxford University Press, 2022, xxiv + 438 pp (including index), £95 (hardback), ISBN 9780198855156 (Warren Swain)
• Subversive Subversive Legal History: A Manifesto for the Future of Legal Education by Russel Sandberg, Oxford, Routledge, 2021, 6 p+234 pp., £109.44, ISBN 9780367191290 (hardback) (Susan Bartie)

Read all articles here

JOURNAL: The Journal of Legal History XLV (2024), No. 1

The Prosecution of Heresy in the Henrician Reformation (Paul Cavill) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2320968
Abstract:

At the beginning of Henry VIII’s reign, the prosecution of heresy was based on three statutes of the late fourteenth and early fifteenth centuries. Under this system, the Church tried the crime with the assistance of secular authority. Juries presented suspects, whose cases were then transferred to the church courts for determination. In 1532, the Supplication against the Ordinaries challenged the conduct of heresy trials. It invoked common-law principles about due process and standards of proof. Two years later, a new statute modified the system, although less drastically than had been proposed. The royal supremacy and new religious policies changed the context in which heresy was prosecuted. Up until 1539, however, the church courts still determined accusations. Thereafter, in the case of specified heresies, the Act of Six Articles made lay juries responsible for determining guilt or innocence. Commissions under this act combined elements of canon law and common law. These reforms were, however, not seen to have improved the conduct of heresy trials. It proved easier to criticize the traditional method of prosecution than to devise a better one.

More Than a Species of Larceny: Fraud Laws and Their Uses in the Eighteenth Century (Cerian Griffiths) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2320967
Abstract:

This article explores the under-researched area of fraud in the eighteenth and early nineteenth centuries. Fraud offences rarely feature in criminal law historiography, and where they do, they are positioned as an afterthought to theft and forgery. This article redresses this oversight and presents an in-depth analysis of eighteenth-century jurisprudence around frauds, providing a long-overdue mapping of the most common offences within this diffuse area of law. This article reveals the ways in which fraud offences were situated in the wider criminal law, and how frauds interacted with other property offences. This article maps the contours of the emerging modern offence of fraud, and in doing so makes the case for a rethinking of the significance of the criminal law of fraud and its place in the development of the modern criminal law. Finally, by assessing the ways in which fraud straddled the line between felony and misdemeanour, this article provides a lens through which to better understand eighteenth and early nineteenth century criminal procedure.

 

Subversion Down-Under: Innovation, Ambition and the Introduction of Survival of Causes of Action Legislation in South Australia and Victoria (Mark Lunney) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2320964
Abstract:

For much of the twentieth century, the standard characterization of the relationship between the English common law metropole and the Dominion periphery has been one of the subservience and deference of the latter to the former. While the relationship was hierarchical, such characterizations undersell the innovation and ambition that the periphery, working within imperial legal constraints, could bring to the shared common law of the empire. This article considers the introduction of survival of actions legislation in two Australian jurisdictions, South Australia and Victoria, in the early 1940s. While based on the antecedent English legislation, both jurisdictions toyed with – and in South Australia’s case delivered – a much wider reform than took place in England. Rather than being mechanical recipients of law crafted in the metropole, Australian jurisdictions were well able to decide whether the English model was the best reform for their common law.

Scottish Legal History Group Report 2023 

Migrations of Manuscripts 2023 (John Baker)

Book reviews:

• Common Law, Civil Law, and Colonial Law: Essays in Comparative Legal History from the Twelfth to the Twentieth Centuries edited by William Eves, John Hudson, Ingrid Ivarsen and Sarah B. White, Cambridge, Cambridge University Press, 2021, x + 338pp, £85.00 (hardback, also available as Open Access on Cambridge Core and in paperback), ISBN: 978-1-108-92512-9 (Joyman Lee)
• Going the Distance: Eurasian Trade and the Rise of the Business Corporation, 1400–1700 by Ron Harris, Princeton, Princeton University Press, 2020, xi + 465 pp. (including index), £40 (hardback), ISBN 9780691150772 (Jonathan Hardman)
• Lawyers at Play: Literature, Law, and Politics at the Early Modern Inns of Court, 1558–1581, by Jessica Winston; Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe, by Julie Stone Peters; Libel and Lampoon: Satire in the Courts. 1670–1792, by Andrew Benjamin Bricker, Oxford, Oxford University Press, 2022, vii & 270 pp., £20 (paperback), ISBN 9780192872326; Oxford, Oxford University Press, 2022, xiv & 350 pp., £70 (hardback), ISBN 9780192898494; Oxford, Oxford University Press, 2022, xii & 326 pp., £70 (hardback), ISBN 9780192846150 (Ian Ward)
• Palles: The Legal Legacy of the Last Lord Chief Baron, edited by Oonagh B. Breen and Noel McGrath, Dublin, Four Courts Press, 2022, 256 pp (including index), €55.00/£50.00 (hardback), ISBN 9781801510356 (Richard McBride)

Read all articles here

JOURNAL: The Journal of Legal History, XLII (2021, nr. 3)

(Image source: Taylor&Francis online)

ARTICLES

The Requirement of a Deed in the Action of Covenant (David Ibbetson) / DOI: 10.1080/01440365.2021.1996037

The origin of the rule that an action of covenant required a deed is something of a mystery, although its consequences were of the greatest importance in the development of the common law. The most recent contribution to the debate has even doubted whether it was a rule of the action of covenant at all. The present article aims to cast as much light on this as possible given the surviving evidence. It restates the traditional view that it was indeed a rule of the action of covenant, dates its appearance, and tentatively suggests that it had may have had a legislative or quasi-legislative origin.

Confessors’ Manuals and the Practice of Law in Medieval Ecclesiastical Courts (J. S. Kirkland) / DOI: 10.1080/01440365.2021.1996039

This article suggests that confessors’ manuals are key to understanding the practice of law in the late medieval ecclesiastical courts. Using court records from fifteenth-century England, it suggests that the courts may have used the ideas found in confessors’ manuals in their application of the law. Court scribes seem to have included information in the court records which was vital to confessors’ manuals, but inconsequential from the perspective of the official canon law. If confessors’ manuals were deemed acceptable sources of law by medieval ecclesiastical courts, then it would add yet another layer to the complexity to medieval law.

Summary Jurisdiction and the Decline of Criminal Jury Trial in Victorian England (Conor Hanly) / DOI: 10.1080/01440365.2021.1996032

Trial by jury was the standard dispositive mechanism for felony trials in England at the start of the nineteenth century. By the end of the century, the summary courts were dealing with a large number of formerly felony cases. This change came about as a result of the inefficiencies of the jury process, which resulted in a push to expand the jurisdiction of the summary courts. Three statutes – the Juvenile Offenders Act 1847, the Larceny Act 1850, and the Criminal Justice Act 1855 – enacted in the middle of the century transferred jurisdiction to deal with the great majority of larcenies from the courts of Quarter Sessions to the Petty Sessional courts. To enact these statutes, reformers had to overcome considerable opposition. The consequence of the new legislation was to initiate a decline in the use of the criminal jury that continues to this day.

Britain, Rhodesia, and the Law of Treason, 1964–1980 (Hugh Pattenden) / DOI: 10.1080/01440365.2021.1996043

This article explores the law of treason in relation to the run up to and unfolding of the Rhodesian Unilateral Declaration of Independence crisis of 1965–80. It considers how contemporaries debated the applicability of the treason laws to the unique situation created by the actions of the Smith government, and shows how it was unclear exactly who was culpable, and under what laws they would be so. In doing this it demonstrates how accusations of treason came to be used as a political tool, and the extent to which treachery was still a concept within the national mindset in the late 1960s and 1970s. Finally, it suggests that the law was arguably in need of serious reform, but that the unusual circumstances of the Rhodesian rebellion served to obscure how far this was the case.

RESEARCH NOTE

Edward Coke, William West, and the Law of Libel (Joseph Mansky) / DOI: 10.1080/01440365.2021.1996042

This note uncovers a new source for Edward Coke’s seminal account of the law of libel in his 1605 report De libellis famosis: the second part of William West’s Symboleography (1594). West adapted much of his popular English law book, including his definition of libel, from the work of the German civilian Hermann Vulteius. Coke in turn borrowed wholesale from West. That borrowing not only underscores the sixteenth-century roots of Coke’s law of libel but also suggests the difficulty of disentangling common law practice from civil law precept in late sixteenth- and early seventeenth-century England.

BOOK REVIEW

• Loving Justice: Legal Emotions in William Blackstone’s England by Kathryn D. Temple, New York, New York University Press, 2019, ix + 265 pp., (including index), $ 45, (hardback), ISBN 9781479895274 (Andrew J. Cecchinato). DOI: 10.1080/01440365.2021.1996027

Read the whole issue with Taylor & Francis Online.

JOURNAL: The Journal of Legal History, XLI (2021, nr. 2)

(Image source: Taylor&Francis online)

ARTICLES

Tithe Personal and Praedial (Andrew Lewis) / DOI: 10.1080/01440365.2021.1946198

Tithe was a personal charge levied on the Christian community to support the church. From the twelfth century AD canon lawyers distinguished tithe raised from the more valuable product of the land, praedial tithe, from that due from other, less valuable sources, personal tithe. This generated a third, mixed category. The origin of the distinction was an attempt to prevent tithe being diverted from the parish to monasteries but as it became permanent it effectively changed both the juridical and practical nature of tithe. Although personal tithe remained due in principle, especially in England, it was always difficult to enforce.

Dower Ex Assensu and Trial by Jury and Trial by Witnesses in the English Medieval Common Law (Paul Brand) / DOI: 10.1080/01440365.2021.1946174

When widows claimed dower they were normally claiming part of the lands which their husband had possessed during their marriage. But the medieval common law also allowed widows to claim lands which the husband had never held if they had been in the possession of a close relative of the husband at the time of the marriage provided the relative had been present at the marriage and given consent to the endowment made by his or her heir apparent. This paper analyses the sixty or so actions of dower ex assensu found on the plea rolls for the period down to 1307 and in associated law reports. That assent was recorded in a written charter in relatively few cases. In most the court relied in part or in whole on the evidence of witnesses present at the ceremony. Sometimes their evidence alone was decisive. More commonly witnesses were added to a jury which gave a collective verdict on whether consent had been given. These cases provide a valuable reminder that witness evidence was already in the thirteenth century a regular and accepted feature of at least one form of common law action.

Mandamus and Borough Political Life, 1615 to 1780 (Kevin Costello) / DOI: 10.1080/01440365.2021.1946184

By the early seventeenth century, about 180 cities, towns and townships in England and Wales were administered as self-governing boroughs. In 1615, in Bagg's Case, Coke CJ announced that the King's Bench possessed a jurisdiction to judicially review misgovernment in the boroughs. Coke CJ's claim to remedy ‘any manner of misgovernment’ was denounced by Lord Chancellor Ellesmere, and the King's Bench was encouraged to disregard the idea. The King's Bench quietly ignored this advice and, through what would evolve into the writ of mandamus, implemented Coke's vision of a process of judicial review of misgovernment in the boroughs. This article reviews the uses to which Coke's remedy was put within the political life of the seventeenth- and eighteenth-century chartered corporation.

Exaggeration: Advertising, Law and Medical Quackery in Britain, c. 1840–1914 (Anat Rosenberg) OPEN ACCESS / DOI: 10.1080/01440365.2021.1946209

This article revisits the nineteenth-century debate about medical quackery in Britain, to examine its implications for the history of modern advertising. It makes two related claims. First, the prevalent view of advertising as a field prone to exaggeration, often taken as obvious, has a legal history. The circumstances of the quackery debate led to a legal elaboration and formalization of views of advertising as an epistemologically doubtful but not illegal field. Second, advertising’s status as exaggeration was part of a legally supported cultural division of labour – or legal boundary work, which carved differentiated roles for science and the market in modern Britain whereby science was increasingly defined by restraint, and the market by its lack. The analysis examines the implications, while also offering new insights on the role of law in the history of quackery, and examining untapped sources, particularly a set of libel cases that developed a legal definition of quackery.

Read the whole issue with Taylor & Francis Online.

JOURNAL: The Journal of Legal History XLIII (2022), No. 1

 

(image source: Routledge)

Contracts ‘Not for the Public Good’ and the Classical Law of Contract (Warren Swain) (DOI 10.1080/01440365.2022.2043408)

Abstract:

During the nineteenth century, legal writers began to put the law of contract into a more rationale and ordered framework. This approach reached its apotheosis in the classical law of contract, which retains some influence in modern times. At its core was the belief that contracts were formed by a meeting of wills – that is, contracts were based on consent. Historically, however, there are instances where the law refused to enforce a contract even if the parties had seemingly freely consented to it. Two major examples were contracts that were against morality or public policy. Both of these categories evolved in the nineteenth century. They came to be seen as increasingly anomalous and restricted. They did not, however, disappear altogether.

Aggravation in Tort Before 1763 (Nicholas Sinanis) (DOI 10.1080/01440365.2022.2043398)
Abstract:

According to a well-settled narrative, modern exemplary (or punitive) damages were first awarded in 1763 in two famous tort cases that arose from the publication of the controversial forty-fifth issue of the North Briton newspaper. Before these cases were decided, English juries only ever increased damages in aggravated tort cases to further compensate plaintiffs for various intangible injuries. This article presents a challenge to this narrative. It seeks to do so by systematically accounting for the place of ‘aggravation’ in the practice of litigating tort actions from the turn of the seventeenth century to the North Briton decisions. It shows that remedial judgments about how to respond to matters of aggravation in tort were fundamentally conceived as belonging to the jury’s adjudicative province, and in which judges increasingly hesitated to interfere. Ultimately, this article contends there is sufficient evidence upon which to conclude that – within this province – pre-1763 juries increased the financial liability of aggravated tortfeasors according to diverse principles, not all of which purported to repair the full extent of a plaintiff’s suffering. In select cases, juries may have applied punitive and exemplary principles.

Law and Commerce: The Fortunate Crisis of the Eighteenth Century (Aleksi Ollikainen-Read) (DOI 10.1080/01440365.2022.2043373) (OPEN ACCESS)

Abstract:

This article refines a common narrative about eighteenth-century commercial law and its relationship to economic development. It looks at a specific doctrinal strand of English common law–promissory notes–and argues that their recognition by statute without regard to common law’s requirements led to a serious destabilization and a crisis for the legal community. This crisis coincided with the South Sea crash and its aftermath, when promissory notes were most needed by the population at large. However, a fortunate effect of this crisis was that promissory notes went essentially unregulated by the courts, and their use was thereby allowed to proliferate. When Lord Mansfield effected his reforms, this brought mercantile cases back to common law courts and brought certainty to the law (albeit at the cost of common law processes). With these commercial instruments in common use and on certain legal foundation, the financial instruments and networks were in place to allow the process of economic development that eventually became modern capitalism. Therefore, instead of the narrative of the steady development of English institutions to pave the way for industrial and financial capitalism, the story of common law’s development is of institutional failures that happened to be fruitful.

 Scottish Legal History Group Report 2021

Migrations of Manuscripts 2021 (sir John Baker)

Book reviews:

• Art and Modern Copyright: The Contested Image by Elena Cooper, Cambridge, Cambridge University Press, 2018, 304 pp., £85 (hardback), ISBN: 9781107179721 (by Stavroula Karapapa)
• The Foundations of Anglo-American Corporate Fiduciary Law by David Kershaw, Cambridge, Cambridge University Press, 2018, xxix + 517 pp. (including index), £110 (hardback), ISBN 978-1-107-09233-4 (by Victoria Barnes)

Read more here.

JOURNAL: The Journal of Legal History (Volume 40, Issue 3)

(Source: T&F Online)

The Journal of Legal History has published its latest issue. Here the table of contents:

Article

The Transportation of Bigamists in Early-Nineteenth-Century England and Wales

Rebecca Probert & Liam D’Arcy-Brown

Pages: 223-252

Published online: 27 Oct 2019

Article

Lambe v Finch (1626): An Early Seventeenth-Century Expectant Heir Chancery Suit in Context

Helen Saunders

Pages: 253-269

Published online: 27 Oct 2019

Article

Construction and Execution of Trusts in Chancery, c. 1660–1750

David Foster

Pages: 270-297

Published online: 27 Oct 2019

Article

Inequality, Just Price and Bad Bargains: Contracting Attitudes after the South Sea Crash, 1720

Stephen Bogle

Pages: 298-325

Published online: 27 Oct 2019

Book review

Brands, Geographical Origin, and the Global Economy: A History from the Nineteenth Century to the Present

by David M. Higgins, Cambridge, Cambridge University Press, 2019, xi + 334 pp. (including index), £90 (hardback), ISBN 978-1107032675

Victoria Barnes

Pages: 326-328

Published online: 27 Oct 2019

Book review

Law, Lawyers and Litigants in Early Modern England, Essays in Memory of Christopher W. Brooks

edited by Michael Lobban, Joanne Begiato and Adrian Green, Cambridge, Cambridge University Press, 2019, ix + 373 pp. (including index), £95 (hardback), ISBN 97801108491723

Sally Jane Gold

Pages: 328-330

More info here

JOURNAL: The Journal of Legal History XL (2019), Issue 1

(image source: University of Glasgow)

The Emergence and Development of Statutory Process for the Compulsory Purchase of Land for Transport Infrastructure in England and Wales, c.1530–1800 (Stephen Gadd)
Abstract:

Before 1539, highway improvement in England and Wales (other than the clearance of illegal obstructions) was achieved only by crown licence following a satisfactory inquisition ad quod damnum. Magna Carta chapter 39 recorded that ‘that no free man is to be … disseised … except by … the law of the land’, but in the wake of other wide-ranging reforms in the 1530s, amid a growing sense of the common weal and desire for ‘improvement’, parliament overcame this obstacle to economic infrastructural development by adjustment of ‘the law of the land’, assuming prerogative power and delegating by statute the authority for the compulsory purchase of land. In this case it was for river navigation at Exeter, and not until 1662 was the power extended to roads. Compensation was always to be paid, but legislation rarely stipulated the explicit outright purchase of freehold. Parliament was willing to grant these powers to trustees or other public bodies, or indeed to private individuals, but only if it was considered that doing so served the public interest.

Rebutting the Presumption: Rethinking the Common Law Principle of Marital Coercion in Eighteenth- and Nineteenth-Century England (Emily Ireland)
Abstract:

While many historians refer to the legal presumption of marital coercion when discussing patterns of lenient judicial treatment of women in eighteenth-and nineteenth-century English criminal trials, few have analyzed the presumption in enough detail to ascertain the impact it genuinely had. This article undertakes close legal analysis of marital coercion. It argues that the presumption was not frequently referred to in nineteenth-century Old Bailey criminal trials for receiving stolen goods because of increasing judicial strictness as to the application of the presumption. A defendant had to prove her marriage, her husband’s presence at the crime scene, and, by the nineteenth century, evidence of her husband’s actual control. The presumption may have shifted from an irrebuttable presumption to one rebuttable upon proof that any of these requirements were absent. Therefore, women’s lenient court treatment during the modern period cannot be straightforwardly attributed to frequent successful recourse to marital coercion.

‘It is necessary that the issue be heard to cry or squall within the four [walls]’: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I (Gwen Seaborne)
Abstract:

This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower’s entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.

Scottish Legal History Group Report 2018
Migrations of Manuscripts 2018 (sir John Baker)

Book Reviews:

Commentaries on the Laws of England (Ian Williams)
A History of Tort Law: 1900-1950 (Mark Wilde)
Ecclesiastical Law, Clergy and Laity: A History of Legal Discipline and the Anglican Church (Charlotte Smith)

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