Networks and Connections in Legal History

Just out from Cambridge University Press: Networks and Connections in Legal History, edited by Michael Lobban, London School of Economics and Political Science, and Ian Williams, University College London:

Network and Connections in Legal History examines networks of lawyers, legislators and litigators, and how they shaped legal development in Britain and the world. It explores how particular networks of lawyers - from Scotland to East Florida and India - shaped the culture of the forums in which they operated, and how personal connections could be crucial in pressuring the legislature to institute reform - as with twentieth century feminist campaigns. It explores the transmission of legal ideas; what happened to those ideas was not predetermined, but when new connections were made, they could assume a new life. In some cases, new thinkers made intellectual connections not previously conceived, in others it was the new purposes to which ideas and practices were applied which made them adapt. This book shows how networks and connections between people and places have shaped the way that legal ideas and practices are transmitted across time and space.

TOC after the jump. [DRE]

Qvortrup on the referendum

Out in 2019 with Hart Publishing, we missed The Referendum and Other Essays on Constitutional Politics by Matt Qvortrup (Coventry University). From the press: 

Until recently, referendums were little used. After the Scottish independence and Brexit referendums, they have come to the fore as a mechanism with the potential to disrupt the status quo and radically change political direction. This book looks at the historical development of the referendum, its use in different jurisdictions, and the types of constitutional questions it seeks to address. Written in an engaging style, the book offers a clear, objective overview of this important political and constitutional tool.

Table of Contents after the jump:

Kelly and Burrell on British Patent Law

Catherine Kelly, University of Bristol, and Robert Burrell, University of Melbourne Law School, have posted two relatively recent articles from their backlist.  One is Myths of the Medical Methods Exclusion: Medicine and Patents in Nineteenth Century Britain, published in Legal Studies 38 (2018): 607-626:

This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process. 

The other is Parliamentary Rewards and the Evolution of the Patent System, which appeared in the Cambridge Law Journal 74(1915): 423-449:

This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors; a model that made public disclosure of the invention a precondition for assistance from the State. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way the reward system helped establish the framework under which the State would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the State to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way the reward system recognised the contribution of the ‘heroic inventor’, whilst leaving the core of the patent system undisturbed.

--Dan Ernst

The Strange Symbiosis of Libel and the Popular Press

My thanks once more for the opportunity to be your guest blogger this month. This will be my final post.

The Strange Symbiosis of Libel and the Popular Press

In late 1920, London daily newspapers had a field day recounting the scene before the King’s Bench and a special jury. A slander case pitted writer Marguerite Radclyffe-Hall against St. George Lane Fox-Pitt, son of famed archeologist Augustus Pitt-Rivers. Fox-Pitt had recently learned from Admiral Troubridge that Radclyffe-Hall had taken up with the Admiral’s estranged wife. Fox-Pitt used this information to discredit Radclyffe-Hall at the Society of Psychical Research, purportedly calling her a “grossly immoral woman.” In court, Fox-Pitt denied that he had ever called the plaintiff “immoral.” Or, he equivocated, if he had done so, he had not meant it maliciously. Indeed, if he meant it at all, the claim pertained to her work, not to Radclyffe-Hall herself. According to the Daily Mirror, the courtroom burst into laughter as Fox-Pitt attempted to describe the immorality implicit in Radclyffe-Hall’s psychic account of a “spook horse” bathing in heaven. Not even the judge seemed able to move past the strangeness of spiritualist study to follow Fox-Pitt’s point [1]. Radclyffe-Hall won her slander suit, receiving £500 damages, a decision upheld on appeal in 1921 [2]. She won thanks to the little-known 1891 Slander of Women Act that allowed women (and only women) in England and Wales to sue for sexual slander without having to prove damages. The law would remain on the books until 2013.

I have been thinking quite a bit about this Act since starting research on reputation. It gets mentioned regularly in legal primers as one of the few caveats in British defamation law. Whereas the law generally requires proof of financial damages in cases of oral slander, the 1891 Act exempted women, since the quintessential middle-class Victorian woman presumably had no market income to lose. There are only a few hits when one searches for cases in the law reports, not leaving the historian much to draw from. If one shifts one’s view from law reports to the newspapers, however, one finds several dozen cases over the law’s 122-year life, the bulk of them taking place between its 1891 passage and 1940. With each expansion of the online British Newspaper Archive, I find more. Some of the stories are set up as general-interest stories, while other slander of women cases were less visible. Editors clearly deemed Radclyffe-Hall’s trial to be good entertainment for readers, and covered it on the first or second pages of their papers.   

As a historical repository of courtroom drama, newspapers are unparalleled sources. But they are far from being neutral parties, of course. It is perhaps hard to find an area of research in which this is more the case than in questions surrounding defamation. Members of the press were outspoken in their critique of libel law at every stage. Nevertheless, journalist critics of libel laws rarely advocated the outright abolition of defamation law. Radclyffe-Hall’s case and Kelly v. Sherlock (see my previous post) offer useful ways of thinking about newspapers’ relationship with defamation cases and how historians might take the relationship into account.

Radclyffe-Hall’s case was a society case. It was entertaining, and it would sell well. Thanks to amendments to the libel laws in the 1880s, news outlets could report on court proceedings so long as the reporting was done accurately and without malice. Targeting an ever-wider readership, especially among women, mass newspapers could bank on the appeal of a social celebrity like Radclyffe-Hall. The seeming ridiculousness of the whole affair likely made the courtroom drama all the more appealing. The laughter in the courtroom stood in for newspaper editorializing, which would have been off limits—or, rather, open to libel charges in turn. Indeed, the entire scene underscores an implicit agreement about the bounds of civility in the period. It was permissible to laugh at Fox-Pitt for his unchivalrous and inept condemnation of Radclyffe-Hall. His inhibitions about addressing her sexuality in the courtroom can be attributed to the Slander of Women Act’s blanket prohibition on criticism of a woman’s virtue. But the courtroom and wider public also seemed remarkably at ease with Radclyffe-Hall’s well-known lesbianism a decade before she published her seminal (and censored) Well of Loneliness. It helped, of course, that the case involved a psychical society, not politics; the stakes were lower. This could not be said about Kelly v. Sherlock. 

Sherlock got into trouble not because he published about Kelly but because of the manner in which he discussed Kelly. Kelly was indeed fair game. He’d made himself a target of public interest, as Baron Bramwell ruled in the trial at the Manchester assizes in August 1865. While there might be a privilege in sermonizing to one’s flock (Bramwell was doubtful, but upheld it), there was no pastoral privilege to criticize civil officials. By so doing, Bramwell held, Kelly opened himself to public rebuke [3]. Sherlock’s infraction, then, was not criticizing Kelly, but doing so in an overly vitriolic manner. It was a contemptuous attack on his professional persona. Newspapers that reported on Kelly and Sherlock could do so without feeling that they were betraying their profession or inviting trouble themselves because, to them, the case helped clarify the boundaries of legitimate journalistic practice. Journalists were not unqualified defenders of journalistic latitude, and saw no reason to be so. They were comfortable with a legally-enforced code of journalistic civility.

It is significant when even those with an interest in criticizing a norm assent to it in principle, since this reflects the power of a social norm. On my bus ride home today, I was reading the 1967 Report of the Joint Committee on Censorship of the Theatre. In his testimony to the committee, Kenneth Tynan, then fighting to have Hochhuth’s Soldiers staged, demanded the end of censorship. His phrasing early in his testimony is of note: “there should be no restriction short of libel on the presentation of historical characters living or dead” [4]. 

[1] Daily Express, November 19, 1920, p. 1; Daily Mirror, November 19, 1920, p. 2. 

[2] "Court of Appeal." Times, March 16, 1921, p. 5.

[3] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686, 689.

[4] Testimony of Kenneth Tynan January 24, 1967, as found in the Minutes of Evidence appended to the Joint Committee on Censorship of the Theatre, p. 80.

--Caroline Shaw

Potter on prisons in British history

Harry Potter (barrister) has published Shades of the Prison House: A History of Incarceration in the British Isles with Boydell Press. From the publisher:

Shades of the Prison House explores the history of imprisonment in the British Isles from Anglo-Saxon times to the present day. Over the centuries, prisons - from castle dungeons to "lockups" to "penitentiaries" to gaols - have changed radically in name, conditions, attributes and functions, as well as in their character and rationale. Prisons have served many aims: detention, deterrence, punishment, reformation and rehabilitation, all in varying degrees. Yet while prisons and their purposes have been transformed, the same debates on imprisonment have continually recurred. Concerns about overcrowding and over-pampering, security and safety have been expressed from the very beginning, and modern notions that prison might serve a purpose other than containment or punishment were espoused long before the eighteenth century.

Drawing on letters, treatises, personal accounts, histories, legal and official reports and studies of prison architecture and design, this book tells the story of prisons, prison life and those who experienced it, be they prisoners, governors, chaplains, warders, reformers or advocates. As entertaining as it is informative, the book examines the nature and quality of imprisonment over the last fifteen hundred years, before surveying present problems and concluding with thoughts on future directions.

 Further information is available here.

--Mitra Sharafi