George Treby's 'Cases in the King's Bench, 1667-1672' at the Middle Temple Library provides a unique, behind-the-scenes glimpse of both proceedings and personalities in the Westminster law courts. These detailed manuscript reports include proceedings from other courts (such as the landmark Bushell's Case [1670], in Common Pleas), as well as substantial shorthand insertions and marginalia. Treby's carefully coded annotations range from commonplace editorial explanations and observations to irreverent and gossipy asides about Restoration judges such as Kelynge, Vaughan and Hale and even include some pointed criticisms of Charles II and his entourage. The shorthand thus sheds new light both on the broader legal and political culture of late seventeenth-century England and the views and preoccupations of a future Whig MP and chief justice, while he was a law student and newly-minted barrister.
This article investigates, with direct testimony, the development and passage of the Procurators (Scotland) Act 1865, which emerged from a grassroots movement of sheriff court practitioners led by the Ayr procurator James Murdoch. Despite some success in political lobbying, bringing support from government and the judges, what emerged was compromised and flawed legislation not quite meeting Murdoch's vision of an improved profession. Part of this was the result of a critical approach to the enterprise, which was undertaken by the nascent legal periodical press in Scotland, but also the conservatism of the lord advocate in whose charge the Bill was placed. The process surrounding the reform of the law was nonetheless important in stimulating the development of a Scotland-wide professional association, the Incorporated Society of Law Agents, and helped bring the members of an atomized lower branch of the profession into a national force united by their common interests.
This article considers the fragmented and contested law and practice of marriage in colonial NSW. The first part first addresses marriage law, both in a positivist sense, and in the sense of what people believed the law was. Countering recent revisionist work, it argues that many people in New South Wales believed, however wrongly, that English statute law applied in the colony. It also considers the implications of R v Millis in New South Wales. The next part then traces a popular shift away from early ambivalence towards official marriage. It suggests that judicial dampening of coverture and targeted emigration schemes to rectify the sex imbalance helped generate a mid-nineteenth century shift in favour of the Victorian marital ideal, with a corresponding increase in rates of marriage.
This article uncovers a convention on foreign judgments, negotiated between Britain and Italy in 1887. The Prime Minister, Lord Salisbury, saw it as 'the most practical first step towards the attainment of complete uniformity': proof that the civil and common law worlds could agree on common private international law rules. It was Britain's first such agreement with a civil law country, half a century before much narrower agreements with France and Belgium. It remained unratified amid Italian political instability and perceived German influence (similar concerns scuppered negotiations in the 1930s). The convention was the high-water mark of British attempts to take a leading role in pan-European codification. By the 1890s, under Dicey's influence, Britain had abandoned its grand ambitions for a truly global regime. The common law was left to its own devices for another generation, with Britain standing aloof from the codification projects it had once sought to lead.
This study delves into the socio-economic landscape of the Kingdom of Poland subsequent to its establishment in 1815 under the auspices of the Congress of Vienna, during which the Napoleonic Code of 1804 prevailed. Despite the legal framework, disparities persisted in property relations, wherein feudal ownership retained practical significance. Over time, societal and economic evolutions catalyzed the emergence of a novel form of real estate ownership, which can be described as pre-factory private property. This paradigm was characterized by a synthesis of feudal vestiges and attributes engendered by the nation's industrialization. Notably, this ownership model found manifestation within so-called factory settlements, which were industrial zones established in some cities.
This Article offers the first historical analysis of patent law in British Mandate Palestine (1917-1948), examining 4,395 patent applications through a reconstructed registry and archival sources. It develops Colonial Patents as a framework for analysing legal transplantation in colonial contexts. The analysis reveals Britain's hybrid imperial patent policy: rejecting empire-wide unification while creating preferential procedures for British patents. Palestine's 1924 Patent Ordinance emerged from London-Jerusalem negotiations, including London's rejected proposal to abolish local patents. The registry shows profound participation asymmetries: while foreign and local inventors each filed approximately half of the applications, Jewish inventors comprised nearly all local applicants, with scant Arab Palestinians filings. Archival sources confirm British engagement with Jewish patent agents but no Arab involvement. This disparity reflects patent law's ideological foundations in Enlightenment progress and industrial capitalism, which resonated with European-educated Jewish immigrants but remained peripheral to Arab Palestinian society, demonstrating how nominally neutral colonial institutions operated differentially.
The arbitration courts organized by local groups in diverse parts of Ireland between 1917 and 1920 have not received the scholarly attention that they deserve. Despite their importance to the Irish revolution these local courts are often presented as a prelude to the succeeding systems of national arbitration courts and the courts of law known as the 'D & aacute;il courts'. This article provides the first dedicated history of these local arbitration courts that evaluates their contribution to Irish history without being overshadowed by their better-known successors. It argues that local arbitration courts were better suited to weather the storm of revolutionary conflict than succeeding systems. This article also argues that many of the successes often attributed to succeeding systems actually belong to the period of the local arbitration courts. These include publicity outside Ireland, displacement of rival courts, the prospect of women presiding over courts and a reputation for fair treatment of minorities.
Only a small proportion of the men and women arrested for felony in early Tudor England were eventually convicted of a crime, though that proportion grew from the mid-fifteenth to the mid-sixteenth century. Numerous factors contributed to the growth in conviction rates: one was the growing use of imprisonment as a punishment for felony, which allowed juries to convict felons they might hesitate to send to execution. The route to imprisonment lay through claims of benefit of clergy which, after 1490, required the Crown to track previous convictions and complicated the process of sentencing. Though most of the gaol delivery records from this period do not survive, the King's Bench records show us the work of a diverse group of men in the circuit courts who sought to minimize such claims by speaking for the king against them and providing the information necessary to defeat them. Their work demonstrates an active involvement in criminal prosecution on the part of the Crown and fills in our understanding of a blank period in the development of lawyers working for the prosecution.
Prior to the enactment of the Contract (Third Party Rights) (Scotland) Act 2017, Scots law permitted third parties to derive an enforceable benefit from a contract via a jus quaesitum tertio which was irrevocable from its creation. This article examines the historical reasons for the irrevocability requirement, focusing on the formulation of jus quaesitum tertio in James Dalrymple, Viscount Stair's Institutions of the Law of Scotland. A comparison is made to Roman-Dutch law, where jus quaesitum tertio was revocable before acceptance by the third party. It is argued that Stair's Calvinist natural law framework led him to adopt a different approach to the creation and revocability of third party rights from Hugo Gortius, whose own natural law ideas were developed within an Arminian framework. This is a more important explanation for the differences between the two jurisdictions than either divergences in legal practice or the influence of canonist or civilian ideas.
This article examines the modern history of the law of murder and its defining feature: malice aforethought. The main part focuses on nineteenth-century trials where, as full adversarial process took hold and societal fears about interpersonal violence grew, the meaning and scope of malice aforethought was subjected to new levels of scrutiny. Defence lawyers insisted that it required premeditation and ill-will; prosecutors sought to widen the circumstances in which it could be implied and narrow the grounds on which it could be negatived. In the first half of the twentieth century, this trial-centred perspective was subordinated to that of the new criminal appellate courts. Their attempts to reconcile conflicting decisions and accommodate an increasingly critical academic literature produced some seminal House of Lords decisions. The final part of the article examines these decisions and demonstrates the lasting influence on the modern law of homicide of canons forged in nineteenth-century trials.
This article investigates the meaning and scope of the term cognitio as it appears in Digest 50.13, a collection of excerpts addressing the judicial duties of provincial governors. The study asks whether the cognitio procedure in this context was purely passive, limited to adjudicating disputes brought before the governor, or whether it reflected an active obligation to ensure that the conduct of certain professionals aligned with Roman law. By analysing key excerpts, the article demonstrates that cognitiones were not merely reactive but often required governors to proactively investigate and regulate matters of public importance, such as the remuneration of artes liberales, liability for medical malpractice and the ethical practices of legal advocates. The discussion situates cognitio within the broader evolution of Roman legal procedures during the Principate, emphasizing its emergence as a unified judicial process replacing the Republican bifurcation of in iure and apud iudicem. The analysis further explores the administrative role of the governor as a representative of imperial authority, tasked with maintaining societal stability through judicial scrutiny. Ultimately, the article argues that Digest 50.13 reflects an expectation of active gubernatorial oversight in regulating professions deemed essential to the functioning of Roman society and governance.
Marriage bars were re-established by many employers following the end of the First World War. The 1919 Sex Disqualification (Removal) Act proved to be of no assistance as a restrictive interpretation meant that it did not prevent gender discrimination. Contemporaneous materials suggested that the re-imposition of marriage bars was meekly accepted by women. Other narratives depict feminist groups as doing little to resist due to division in their ranks. However, this piece demonstrates by use of archival research how leading Equalitarian and Difference feminist groups both prioritized this issue and worked together to establish a Committee on the Employment of Married Women ('CEMW') in February 1922 to challenge marriage bars. This article investigates the work and progress of the CEMW, including how they drafted and developed the Married Women's (Employment) Bill, which was presented to Parliament in 1927. This research illustrates that although this legislation was unsuccessful, it was not because of division between feminist campaigning groups, but due to the methods and arguments used by powerful male opponents and the male domination of marriage in that period. Ultimately, the important work of the CEMW had an indirect impact, acting as a foundation for marriage bars being overturned in subsequent decades.
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.
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.
This article considers the procedural design of the early common law action mort d'ancestor, introduced in 1176. It first considers how the action was developed to provide swift justice while also allowing the defendant (or 'tenant') adequate opportunities to appear in court. It then examines the impact of this design on litigation at the eyre from 1198 to 1228. The interaction of the procedural rules of the action with the duration of the justices' county visitations meant that, before 1215, a significant number of cases suffered postponements to later destinations on the justices' circuits. This gives further context to Magna Carta's demands for efficient local justice. Matters improved in the reign of Henry III, as county visitations tended to be longer. However, this was not the case across the whole country. Together with some localized experiments in procedure, litigants' experiences of early common law litigation may therefore have varied considerably.
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.
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.
