Larsen and McSweeney on the Judicial Use of Medieval Treatises

Alli Orr Larsen and Thomas McSweeney, William & Mary Law School, have posted Medieval Treatises and the Judicial Search for a Usable Past, which is forthcoming in the Stanford Law Review:

Bracton (HLS)

The Supreme Court’s recent turn to history and tradition has prompted a renewed interest in the far distant past – the laws and customs of the Middle Ages. But medieval treatises are full of traps for the unwary. This article – a joint enterprise between a medieval legal historian and a Supreme Court scholar – carefully explores what makes these treatises uniquely complicated and easy to get wrong. To start, they are written in Latin and, sometimes, Old French. In many instances, the underlying medieval decisions they reference are destroyed and gone forever. Because there was no photocopier or even printing press back then, treatises often come in competing versions reflecting not only multiple authors but also successive copyists who made substantive changes. And legal texts were just different in the thirteenth century. Treatises were used for purposes as diverse as passing on cultural values, advising rulers on how to govern, and even teaching people the ideals of friendship. Put simply: medieval law is hard to find, hard to read, and even harder to put into context.

For the American judge or law clerk who is strapped for time but wants to make a point about a long tradition, the understandable temptation is to reach for an authority like a medieval treatise that feels familiar. After all, modern legal treatises (think Wright and Miller) are recognized as trustworthy authorities to cite. And today translated versions of medieval treatises are easy to find digitally. But that ease of access and familiarity of authority are illusory. Often the very things that make these medieval texts feel familiar to modern readers would have made them idiosyncratic to thirteenth century audiences. Our goal in this article is to raise the caution flag for judicial consumption of medieval treatises: a user-friendly useable past can lead modern lawyers and jurists astray and should not be consumed without scrutiny and care. 

--Dan Ernst 

Christensen-Nugues on Forced Marriages and the Apostolic Penitentiary

Charlotte Christensen-Nugues, Lund University, has published, open-access,  Consent and Coercion: Forced Marriages in Supplications to the Apostolic Penitentiary, 1484-92, in the Journal of Medieval History:

In the late Middle Ages, hundreds of Christians from all over Europe sent supplications to the Papal Curia to be freed from promises made under duress. This article analyses the supplications about forced marriages that were submitted to the Apostolic Penitentiary during the pontificate of Pope Innocent VIII (1484–92). The study is based on mainly unedited source material that has not been investigated before. The article examines who turned to the Penitentiary for annulment because of force (age, gender, and social status), who was designated as the compelling party, and, finally, what kind of coercion the petitioners had been subjected to. Particular focus is given to the narrative strategies of the petitioners and how their stories relate to legal theory and cultural norms in late medieval society.

--Dan Ernst 

JLH 45:2

The Journal of Legal History 45:2 (2024) has been published open access online.  With a hat-tip to ESCLHblog, here is the TOC.  DRE]

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

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

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

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 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

Weekend Roundup

• On November 25, 2025, Susanne Brand delivered the annual lecture of the Centre for English Legal History at the University of Cambridge. Her topic was "Outlawry and its Consequences in Later Medieval English Law and Practice."  View it here. 

• Trump v. Slaughter Roundup: Christine Kexel Chabot (Notice & Comment).  “What do you do when the Supreme Court says its decisions are supported by history, but history doesn’t support the Supreme Court?” asks Craig Green, in an article quoting a number of other legal historians (Bloomberg Law).  The Yale Law bench memo (Just Security). Jed Shugerman and Gary Lawson reply to Richard Re (Divided Argument).  And a blog version of “Quasi-Judicial”: A History and Tradition, a paper that Beau J. Baumann and Jed H. Shugerman posted on SSRN yesterday (Notice & Comment).

• National Guard Deployment Roundup: Bernadette Meyler (SLS Blog).  What about the Whiskey Rebellion? (Lawfare).

• Vanderbilt Law's notice of Sara Mayeux's appointment to its Mildred Prescott Miller Chair. 

• Fordham Law's notice of Jamie Grischkan, a legal scholar and historian of financial regulation and antimonopoly law and policy. 

• Carl Landauer reviews Lauren Benton's  They Called It Peace: Worlds of Imperial Violence (2024) in the European Journal of International Law.  

• The American Historical Association will host a congressional briefing on the history of federal funding of science on Thursday, December 11, at 9:00 a.m. ET in Rayburn House Office Building Room 2075. 

• A recording of the National Constitution Center's "town hall" on amending the U.S. Constitution may be viewed here.   And tune in Monday at noon for another town hall, in which John Q. Barrett, joins Gerard Magliocca, and G. Edward White to discuss Robert H. Jackson's "influential concurrence in Youngstown Sheet & Tube Co. v. Sawyer, his approach to constitutional interpretation, and the lasting legacy he left on debates over presidential power." 

• A briefing on Bush v. Gore and the State of U.S. Elections sponsored by the Brennan Center for Justice on Tuesday, December 9 from 2–3 p.m. ET.

• John Lennon's lawyer recalls Lennon's and Ono's deportation case (ABA Modern Law Library). 

• The University of Nebraska-Lincoln's notice of the receipt by its "Petitioning Freedom" project of the Mary Dudziak Prize in Digital History from the American Society for Legal History. 

• ICYMI: The history of the University of Memphis School of Law. Tracing the roots of modern international refugee law (SCC Times).  The South Carolina Supreme Court Historical Society (Columbia Metropolitan). 

• Update: "Feds Grant Nearly $1 Million to Develop Second Amendment History Curriculum" (Reload).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Samuel's "Principia Iuris"

Geoffrey Samuel, Professor Emeritus, Kent Law School, has published Principia Iuris: A Historical and Comparative Introduction to the English Common Law (Edward Elgar):

This book provides a strong introduction to the principal domains of legal knowledge by examining a structured list of legal maxims, many originating in medieval Roman and canon law. Oriented by historical and methodological approaches, it explores legal thought and reasoning through a comparative lens.

Geoffrey Samuel explains the differences between common law and civil continental traditions, outlining preceding works on regulae iuris across the centuries. With an emphasis on English law, the book analyses basic principles and addresses the law of obligations, the law of actions and the law of property and public law. Delving into fundamental legal remedies, substantive law and legal institutions, Samuel questions whether some maxims are more memorable or indisposable than others and shows the impact they have had on legal theory. Exploring historical developments, the book also maps the original sources of key theories, utilising a civil law taxonomical plan to classify them.

Principia Iuris is an invaluable resource for students and academics in law, legal theory and legal history. Its unique insights into common law mentalities will also greatly benefit legal educators and practising lawyers. 

--Dan Ernst.  H/t: ESCLHblog

Chapman on Fines and Common Bench

New online from Law and History Review: Fines and the Common Bench, 1218–1226 by Douglas R. Chapman, University of Cambridge:

The years immediately following the issue of Magna Carta and the death of John were of fundamental importance in determining the trajectory of the nascent common law legal system. Although the existence of the Bench had functionally been permanently established under chapter seventeen of Magna Carta, the central royal court faced an uncertain future under conciliar rule and in the aftermath of extensive civil conflict. The extensive extant records of the common law fines made to initiate actions in the Bench as recorded the Fine Rolls offer a window into the roles played by the court in relation to litigants, within the wider structure of royal governance, and in relation to a rapidly evolving legal system. An analysis of these sources can therefore both illuminate the early workings of the common law legal procedures and characterize the demand for royal justice that survived the First Barons’ War before continuing to grow across the thirteenth century. What emerges is a picture of a judicial system at the onset of a period of rapid development and widespread demand that would come to lay the foundation for the massive expansion of royal justice that was to follow throughout the reign of Henry III and beyond.

--Dan Ernst 

ASLH's Virtual New Books Series

[Here's another reason to join the American Society for Legal History: Members can virtually participate in this series on great new books in the field.  DRE]

Making Connections: New Works in Legal History Series, 2025-2026 

All sessions will be on Zoom Wednesdays from 6:00-7:00 pm (Central Time).  We will send an email two weeks in advance of each event.  You must RSVP to receive the zoom link.  RSVP messages will be sent to membership approximately 1 week before the event.  ASLH Members can watch videos of previous events on our members page
 
September 17, 2025 – Esther Liberman Cuenca, The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press, 2025) with interlocutor Sara M. Butler
 
October 22, 2025 – Sonia Gomez, Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (NYU Press, 2024) & Kathryn Schumaker, Tangled Fortunes: The Hidden History of Interracial Marriage in the Segregated South (Basic Books, 2025)
 
December 10, 2025 – Marla A. Ramírez, Banished Citizens: A History of the Mexican American Women Who Endured Repatriation (Harvard University Press, 2025) with interlocutor Kevin R. Johnson
 
January 21, 2026 – Omar Youssef Cheta, How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press, 2025) with interlocutor Nurfadzilah Yahaya
 
February 25, 2026 – Tadashi Ishikawa, Geographies of Gender: Family and Law in Imperial Japan and Colonial Taiwan (Cambridge University Press, 2025) with interlocutor Jisoo M. Kim
 
March 25, 2026 – Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025) with interlocutor Margot Canaday
 
April 15, 2026 – Kevin Arlyck, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press, 2025) with interlocutor Alison LaCroix

Bugaric on Fulgosius on Just War

Max Kuhelj Bugaric, a Ph.D. candidate in the Department of Government and a student in the Law School at Harvard University, has posted Raphael Fulgosius on Just War: Papal Adjudication of Conflicts and War as Judgment.  The paper was awarded the 2025 Irving Oberman Memorial Award in Legal History of the Harvard Law School. 

While Raphael Fulgosius (1367–1427) does advance a seemingly revolutionary notion—that in certain cases, the outcome of a war is itself a just verdict—it must be read in light of the overall framework he develops. But in what has been written on this topic, the emphasis rests almost entirely on his argument about the impossibility of judging the different sides’ claims to justice in a formal bellum. This paper attempts to correct the historical record and offer a more fully contextual interpretation of his claims. Fulgosius was willing to set aside the rigid theory of the just war framework and instead label conflicts between Christians “dissensions” (dissensiones) precisely in order to preserve the diplomatic power of the papacy. But the conclusion Fulgosius reaches in effect allows for an even stronger statement of the unilateral rights of war, as it is the pope himself who acts as judge in such disputes. There can be no appeal to his sentence, which also resolves the problem of potential ambiguity and doubt. Even if he thought papal adjudicative power should not be completely unconstrained in such scenarios, he likely would have wanted to preserve the general prerogative, motivated at least in part by the desire to rein in the constant warfare that characterized the Italian city-states in this period.

--Dan Ernst 

Bemmer on Early Irish Law in Helsinki Seminar

Jaqueline Bemmer, a Marie S. Curie Fellow with the Research Group Medieval History at Leuven, will present in the  Helsinki Legal History Series seminar on Thursday, May 22, from 3 pm - 4:30 pm in P673, Porthania, University of Helsinki.  You may attend via Zoom.  She will speak on "Rethinking the Margins: Early Irish Law and the Post-Roman Legal Landscape":

The early Irish laws, sometimes referred to as fénechas, constitute the largest extant body of vernacular legal writing in Europe outside the Graeco-Roman world – yet they remain largely unknown beyond a small specialist audience. Unlike the roughly contemporary Germanic edicts, these texts were not issued by kings but preserve the customary laws (or socio-legal customs) of the local population in early medieval Ireland. Committed to parchment in the 7th and 8th centuries by scholars trained in Irish and early Church law, grammar and poetry, this legal material reflects an oral tradition transmitted and transformed within monastic scriptoria. Notably, these jurists chose to write in Old Irish – a Goidelic Celtic language – rather than Latin, a decision paralleled only by the Anglo-Saxons who wrote in Old English.

The resulting legal texts are extraordinarily rich, and cover a wide array of social and legal topics. My current Marie Sklodowska-Curie project places these Irish laws in dialogue with contemporary post-Roman edicts from the Continent (often labeled ‘leges barbarorum’), to explore continuities and contrasts in legal thought across the early medieval West. In this talk, I will present aspects of this ongoing research and highlight the comparative potential of the Irish material in relation to developments in Francia, Lombardy, and beyond.

--Dan Ernst

A Conference for Charles Donahue

[Congratulations to Professor Donahue.  We wish we could be there!  DRE]

The Learned and Lived Law: A Celebration in Honor of Charles Donahue, May 19, 2025, Lewis 214, Harvard Law School.

Please join us for a celebration honoring Professor Charles Donahue and marking the publication of The Learned and Lived Law:  Essays in Honor of Charles Donahue.  We will have a day of presentations by chapter authors as well as a display of medieval manuscripts in the Harvard Law Library in the early afternoon.

Welcome
8:45 – 9:00 am
Interim Dean John C.P. Goldberg
Saskia Lettmaier and Elizabeth Papp Kamali

Panel 1: Roman Law
Chair: James Townshend
9:00 – 10:00 am

Charles Bartlett, Roman Property, Corporate Personhood, and the Politics of Natural Law in Medieval and Early Renaissance Italy: Venice, Baldus, and the res communes omnium

Wim Decock, “For the Sake of Mental Health and Mutual Peace”: The Transactio-Agreement in Early Modern Law and Theology

Panel 2: Medieval and Early Modern Law
Chair: Elizabeth Papp Kamali
10:15 – 12:15 pm

Samantha Kahn Herrick, Getting Ahead in a Twelfth-Century City: The Ambitious Monks of Saint-Clément, Metz

Ryan Rowberry, The Papal Constitution Execrabilis (1317) and Clerical Justices in the English Royal Courts

Elizabeth Mellyn, Suicide in Early Modern Italy

Carol Symes, The “Desire of Deeds”: On Cherishing Medieval English Charters

12:15 – 1:15 pm
Lunch available in Lewis 202

Medieval Manuscript Display
Harvard Law Library, 4th floor, Caspersen Room
1:15 – 2:15 pm
Arranged by Sarah Wharton, Historical & Special Collections
Co-Hosts: Carol Symes and Charles Bartlett

Panel 3: American Legal History
Chair: Ryan Rowberry
2:30 – 3:30 pm

Sally Hadden, Lawyers and Their Book Collections: Notes from the Eighteenth Century

Amalia Kessler, The American Importation of the Comparative Accusatorial/Inquisitorial Divide: Francis Lieber’s Failed Transplant and Its Early Twentieth-Century Resurgence

Panel 4: Literature and Legal Theory
Chair: Saskia Lettmaier
3:45-4:45 pm

Anton Chaevitch, Faust: Goethe’s Guide to Legal Progress

Bharath Palle, Wesley Hohfeld’s Modernist Imagination

Closing Reflection
Mary Elizabeth Basile Chopas, De Magistro eruditissimo et beneficentissimo

When Law Left the Lawbooks in Medieval Europe

[We have the following announcement.  DRE.]

When Law Leaves the Lawbooks: Legal Diffusion and Normative Instability in Medieval Europe.  Rowan Dorin, Stanford University, April 23, 2024, 06:00 PM (Local Time Germany).  Contact: Benedetta Albani, albani@lhlt.mpg.de

Like medieval jurists, modern scholars frequently rely on the authoritative, codified versions of legal norms when considering the relationship between legal developments and social change in the European Middle Ages. Too rarely have medievalists followed the lead of early modernists in emphasizing the multi-sited production and translation of legal knowledge. Yet just as in the early modern era, medieval law did not circulate only in its codified forms; knowledge of its language and provisions could also be transmitted and transformed through other written genres, to say nothing of oral renderings and visual representations. Using a thirteenth-century conciliar decree as a starting point (and building on a newly available online database of medieval ecclesiastical legislation), this talk will accordingly explore the paths by which legal innovations moved from medieval council chambers and university classrooms into local contexts, undergoing significant textual and interpretative transformations along the way.

Rowan Dorin (AB & PhD Harvard; MPhil Cambridge) is Associate Professor of History at Stanford University. In addition to his recent book, No Return: Jews, Christian Usurers, and the Spread of Mass Expulsion in Medieval Europe (Princeton UP, 2023), he has published articles on medieval canon law, Jewish-Christian relations, digital humanities, and the circulation of people, goods, and manuscripts in the premodern world.

We kindly ask those interested in participating in person or online to register here.

Tate on Magna Carta and Fundamental Rights

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Definition of Fundamental Rights, which is forthcoming in the Tulsa Law Review:

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.

--Dan Ernst

McSweeney on Magna Carta's Diverse Sources

Thomas J. McSweeney, William and Mary Law, has published Appealing Magna Carta in the online adjunct of the University of Chicago Law Review:

In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay examines one piece of evidence highlighted by Helmholz and more recently by Professor Charles Donahue: that the Articles of the Barons, a preparatory document for Magna Carta, uses a phrase borrowed from canon law, appellatione remota (without possibility of appeal). Helmholz and Donahue pointed to its use as evidence that canon law formed part of the discussion when the drafters of Magna Carta were thinking about the common law. In this Essay, I argue that the use of this phrase is not actually evidence that canon law was being brought into discussions of the common law, since the phrase is used in the context of an ecclesiastical procedure. This example is nevertheless useful for highlighting some important features of Magna Carta. First, although there is a long tradition of associating Magna Carta with the common law, Magna Carta is not a text that is primarily about the common law. Rather, it contains provisions on several different types of law, including common law, forest law, and canon law, and underscores the pluralistic nature of English law in the thirteenth century. Second, the authors of the text seem to have gone to some length to keep these different types of law “discursively separate,” using common law terminology and canon law terminology only when appropriate to the context. And finally, although Roman and canon law were likely to have been part of the conversation about the contours of royal justice, they probably would have entered into the conversation at a high enough level of abstraction that they would not be visible in the text of Magna Carta. Overall, Magna Carta does not provide conclusive evidence whether contemporaries were thinking about Roman and canon law when reforming the common law.

--Dan Ernst

Weekend Roundup

• The Ius Commune Podcast has released on Spotify the first of a two-part series on French Medieval Law with Ada Kuskowski, University of Pennsylvania.
  

• Congratulations to Tomiko Brown-Nagin upon her receipt of the 2023 the Order of the Coif award for Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (Harvard Law Today).
  

• The National Constitution Center has been busy.  A recording of From Spies to Leakers: The History of the Espionage Act, with Heidi Kitrosser and Sam Lebovic, is now available.  On Monday, December 11, at 7 PM, it will host, free and online, The Taft Court: Making Law for a Divided Nation, a discussion with Robert Post, the author of the latest volume in the the Oliver Wendell Holmes Devise History of the Supreme Court.  And on Wednesday, December 13, at 12:00 pm EST, it will host the discussion, also free and online, Loyalists vs. Patriots and the American Revolution, with Joyce Lee Malcolm and Eli Merritt.
  

• The Historical Society for the New York Courts has posted a recording of its webinar, The Struggle for Ratification: New York's Role in Shaping the U.S. Constitition.  It was Moderated by the Honorable Albert M. Rosenblatt, with John P. Kaminski, Michael J. Klarman, Richard Leffler, and Jack Rakove.
  

• Lee Wilson leads the new “legal history emphasis area” in the Department of History and Geography’s at Clemson University (Clemson News).
  

• Here is the historians' amicus brief in the free speech case, Moody v. NetChoice, in the U.S. Supreme Court.
  

• ICYMI: Saul Cornell on How the Supreme Court's Conservatives Can Solve Their Guns Dilemma Without Losing Face (Slate).  Unraveling Ulysses S. Grant’s Complex Relationship With Slavery (Smithsonian).  A six-episode, "true  crimes" podcast on the trial of Levi Weeks for the murder of Emma Sands in 1800.  (“I’m standing in this clothing store,” said the creator Allison Flom, and “see people around trying on sweaters and slacks, and mannequins everywhere, wanting to just scream, like, 'Someone was killed here!'”) (CBS News)
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Wang's "Making of Felony Procedure in Middle English Literature"

Elise Wang, California State University, Fullerton, has published The Making of Felony Procedure in Middle English Literature in the Law and literature series at Oxford University Press:

The Making of Felony Procedure in Middle English Literature explores the literary inheritance of criminal procedure in thirteenth to fifteenth century English law, focusing on felony, the gravest common law offense. Most scholarship in medieval law and literature has focused on statute and theory, drawing from the instantiating texts of English law: acts of Parliament, judicial treatises, the Magna Carta. But those whose job it was to write about the law rarely wrote about felony. Its definition was left to its practice--from investigation to conviction--and that procedure fell to local communities who were generally untrained in the law. Left with many practical and ethical questions and few legal answers, they turned to cultural ones, archived in sermons they had heard, plays they had seen, and poetry they knew. This book reads the documents of criminal procedure--coroners' reports, plea rolls, and gaol delivery records--alongside literary scenes of investigation, interrogation, and witnessing to tell a new intellectual history of criminal procedure's beginnings.

The chapters of The Making of Felony Procedure guide the reader through the steps of a felony prosecution, from act to conviction, examining the questions local communities faced at each step. What evidence should be prioritized in a death investigation? Should the accused consider narrative satisfaction when building his plea? What are the dangers of a witnessing system that depends so heavily on a few "oathworthy" men? What can a jury do if the accused's guilt seems partial or complex? And what if the defendant-for whatever reason--refuses to participate in this new, still--delicate system of justice? The book argues that answers they found, and the sources that informed them, created the system that became modern criminal procedure. The epilogue offers some thoughts about the resilience and incoherence of the concept of felony, from the start of the jury trial to the present day.

The TOC is here.

--Dan Ernst

Sutherland Prize to Stattel

At its recently concluded annual meeting the American Society for Legal History awarded its Sutherland Prize for best article on the legal history of Britain and/or the British Empire to Jake Stattel “Legal culture in the Danelaw: a study of III Aethelred,” Anglo/Saxon England 49 (2022): 163-203.  Here is the citation: 

Jake Stattel

In 997 AD King Aethelred announced two law codes: one for his English kingdoms (the Woodstock code) and one for the area known as the Danelaw (the Wantage Code). While broadly similar, the two codes also contain important differences. These differences are the subject of Stattel’s erudite and impressive essay.  Historians have usually understood these provisions as markers of the uneasy integration of Danish lands into the English kingdoms. Some see the differences as Athelred’s attempt to confirm English dominion over Danelaw territories; some see it as a necessary concession to the authority of Anglo-Scandinavian elites within the kingdom. Stattel provides a fresh approach. Reframing the question to explore what these codes reveal about legal culture rather than about the political reach of the Anglo-Saxons, Stattel sketches out some of the distinctive legal assumptions of society within the Danelaw regions. These differences, he shows us, were not minor matters of procedure but rather divergent ideas about best practice.

Focusing on collective liability, access to legal recourse, and methods of proof, Stattel makes visible the distinctiveness of Anglo-Scandinavian communities long after their submission to Anglo-Saxon monarchs. He uses an array of tools, textual and material, to trace a system in which the Danelaw was both a part of and apart from the dominant society. His sources range from language to archeology to scientific insights, from charters and chronicles to bones and isotopes. Stattel persuasively argues that the Danelaw is best understood within the context of Scandinavian traditions. In the Danelaw regions, smaller communities allowed for higher standards of mutual responsibility, more stringent requirements for invoking formal law, and a preference for fact-finding over oath-taking. These practices suggest the continued influence of the Anglo-Scandinavian elites upon the broader legal structures and in some cases, they offer early examples of what would become standard English processes.  Stattel’s arguments are clearly presented and thoughtfully constructed. Moreover, he shows us that for law as for other aspects of society, balancing written and material evidence rather than favoring one over the other pays off. This essay goes far beyond a close reading of one early law code; it has important implications for how we understand law’s ability both to reinforce power and to coopt diversity.

 --Dan Ernst

MacQueen's "Law and Legal Consciousness in Medieval Scotland"

Hector L. MacQueen, Emeritus Professor of Private Law at Edinburgh Law School, has published Law and Legal Consciousness in Medieval Scotland in Brill’s series, Medieval Law and Its Practice:

This book explores the rise of a Scottish common law from the twelfth century on despite the absence until around 1500 of a secular legal profession. Key stimuli were the activity of church courts and canon lawyers in Scotland, coupled with the example provided by neighbouring England’s common law. The laity’s legal consciousness arose from exposure to law by way of constant participation in legal processes in court and daily transactions. This experience enabled some to become judges, pleaders in court and transactional lawyers and lay the foundations for an emergent professional group by the end of the medieval period.

–Dan Ernst

Papp Kamali on "Judging Mind" in Medieval England

Elizabeth Papp Kamali, Harvard Law School, has published The Audacity of Judging Mind in Medieval England, in the Journal of Medieval and Early Modern Studies (2023) 53 (3): 493–518:

In medieval English texts, a common refrain, drawn from scripture, urged that only God could search the mind and heart of a sinner, and that those who judge others might face their own grave judgment on the last day. This sits uneasily with the task of issuing a felony verdict, a burden placed squarely upon the shoulders of lay jurors after the Fourth Lateran Council's effective abolition of trial by ordeal in 1215. Nevertheless, jurors did sit in judgment upon their neighbors, and evidence suggests that they were not merely assessing outward conduct but also the state of a defendant's heart and mind which, like the hand of a proband in the era of trial by ordeal, might be declared fair or foul. This essay explores how techniques for unearthing intentionality through circumstantial inquiry—techniques developed in the context of classical rhetoric and adapted for priests hearing confessions—were put to use by coroners and others tasked with investigating crimes. This, in turn, aided jurors in the perilous, even audacious, task of judging alleged felons, ultimately determining who should be acquitted and who should face the gallows.

--Dan Ernst

McSweeney, Ello and O'Brien on old universities

 Thomas J. McSweeney, Katharine Ello, and Elsbeth O'Brien (all of William and Mary) have published "A University in 1693: New Light on William & Mary's Claim to the Title "Oldest University in the United States," William & Mary Law Review (Oct.15, 2020). Here's the opening:

William & Mary has traditionally dated its transformation from a college into a university to a set of reforms of December 4, 1779.On that date, Thomas Jefferson and his fellow members of the Board of Visitors reorganized William & Mary, eliminating the grammar school and the two chairs in divinity and creating chairs in law, modern languages, and medicine. Five days after the reforms were adopted, a William & Mary student wrote that “William & Mary has undergone a very considerable Revolution; the Visitors met on the 4th Instant and form’d it into a University....” Just over three years later, when Jefferson received an honorary doctorate in civil law from William & Mary, his Latin diploma stated that it was granted by the “president and professors of the university or College” (universitatis seu collegii) of William & Mary in Virginia. In the late 1770s and early 1780s, there certainly seems to have been a campaign to broadcast William & Mary’s status as a university, and William & Mary grounds its claim to be the oldest university in the United States in that historical moment. There is a strong argument to be made, however, that William & Mary became a university long before the reforms of 1779. In fact, it was granted the status of a university in its royal charter of February 8, 1693.

 Few scholars appear to have noticed the relevant language in the charter. There are good reasons for that. The term used in the charter is not one that is familiar to us today. The drafters did not use the word “university.” Instead, they used a technical term for a university that developed in the Middle Ages, one that had gone out of regular use in the British Isles even by the seventeenth century. Moreover, it only really becomes clear that William & Mary was granted the status of a university in the Latin version of the charter. In the English version, the terminology is hidden behind an overly literal translation. In the English version of the charter, the one that is read every year at William & Mary’s Charter Day celebration, William III and Mary II declare that they are granting their license “to make, found, and establish a certain Place of universal Study, or perpetual College of Divinity, Philosophy, Languages, and other good Arts and Sciences.” The key words are “place of universal study.” In the English, they do not look significant. But they are a translation of a very significant phrase that appears in the Latin charter: studium generale.

Further information is available here.

--Mitra Sharafi