Fishman on Trollope's Lawyers

James Fishman, Pace University School of Law, has posted A Random Stroll Amongst Anthony Trollope’s Lawyers:

Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society.

Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized.

This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides.

Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth.

As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change.

Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.

--Dan Ernst

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Happold on the Magna Carta Myth

Matthew Happold, Université du Luxembourg, has posted Magna Carta Past and Present: A Speech given to the Oxford University Society of Luxembourg, 10 September 2015:

LC

A speech given to the Oxford University Society of Luxembourg to celebrate the 800th anniversary of Magna Carta.  Looking at Magna Carta - how it came about, what it was, what it achieved, and what it came to represent - it argues that the myth of Magna Carta has been much more powerful than the reality. It concludes that invocations of Magna Carta can be double-edged. One the one hand, they extol the rule of law, but on the other they eulogize English exceptionalism. So it is no surprise that the British Government has seen no contradiction in celebrating 800 years of Magna Carta whilst exploring the possibility of denouncing the European Convention on Human Rights in favour of a British Bill of rights and responsibilities.

--Dan Ernst

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Cromwell Dissertation Prize to Tycko

We have word that the William Nelson Cromwell Dissertation Prize, awarded by the trustees of the William Nelson Cromwell Foundation on the recommendation of the Advisory Committee on the Cromwell Prizes of the American Society for Legal History, has gone to Dr. Sonia Tycko, Oxford University,  for “Captured Consent: Bound Freedom of Contract in Early Modern England and English America.”  From the recommendation of the ASLH committee:

In an extraordinarily creative and imaginative dissertation, "Captured Consent: Bound Service and Freedom of Contract in Early Modern England and English America," Sonia Tycko explores the repeated appearance of consent as part of the meaning of compulsory service in the early modern period. … Tycko forces us to reconsider the very foundations of consent and contract and makes a signal contribution to the historiography on contract, labor, and freedom. Tycko also offers nuanced readings of an impressive array of primary sources and reveals the social realities against which a vocabulary about contract arose in particular labor relationships, from indentured servitude to military impressment to kidnapping. She mines documents that others might skim and brings to the surface the way in which the very words betray underlying power dynamics. The important transatlantic lens persuasively establishes her argument as part of larger seventeenth-century English assumptions, in Great Britain and the British colonies. This dissertation rewards the reader on every page-and, impressively, becomes even more interesting on rereading. Tycko's dissertation serves as a model of the well-crafted and carefully executed dissertation in legal history.

–Dan Ernst

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Duggan's Essays on Medieval Canon Law

We’ve recently learned of the publication of A. J. Duggan, Popes, Bishops, and the Progress of Canon Law, c.1120–1234, ed. T.R. Baker (Brepols, 2020).   Anne J. Duggan is Emeritus Professor of Medieval History and Fellow of King’s College London; Travis R. Baker (D.Phil, Oxford, 2017) is a private scholar living in the Diocese of Orange:

This book considers the role of popes and bishops in the development of the law of the Church between 1120 and 1234. Although historians have traditionally seen the popes as the driving force behind the legal transformation of the Church in the twelfth and thirteenth centuries, the primary argument of this book is that the functioning of the process of consultation and appeal reveals a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia.

Bishops have always played a central role in the making and enforcement of the law of the Church, and none more so than the bishop of Rome. From convening and presiding over church councils to applying canon law in church courts, popes and bishops have exercised a decisive influence on the history of that law.

This book, a selection of Anne J. Duggan’s most significant studies on the history of canon law, highlights the interactive role of popes and bishops, and other prelates, in the development of ecclesiastical law and practice between 1120 and 1234. This emphasis directly challenges the pervasive influence of the concept of ‘papal monarchy’, in which popes, and not diocesan bishops and their legal advisers, have been seen as the driving force behind the legal transformation of the Latin Church in the twelfth and early thirteenth centuries. Contrary to the argument that the emergence of the papacy as the primary judicial and legislative authority in the Latin Church was the result of a deliberate programme of papal aggrandizement, the principal argument of this book is that the processes of consultation and appeal reveal a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia, in which the ‘papal machine’ evolved to meet the demand.

–Dan Ernst.  TOC after the jump.
Chapter 1: Jura sua unicuique tribuat: Innocent II and the advance of the learned laws
Chapter 2: ‘Justinian’s Laws, not the Lord’s’: Eugenius III and the learned laws
Chapter 3: Servus servorum Dei: Adrian IV’s contribution to canon law (1154-9)
Chapter 4: Alexander ille meus: The Papacy of Alexander III
Chapter 5: The Effect of Alexander III’s ‘Rules on the Formation of Marriage’ in Angevin England
Chapter 6: The Nature of Alexander III’s Contribution to Marriage Law, with special reference to Licet preter solitum
Chapter 7: Master of the Decretals: A Reassessment of Alexander III’s Contribution to Canon Law
Chapter 8: Making Law or Not? The Function of Papal Decretals in the Twelfth Century
Chapter 9: ‘Our Letters have not usually made law (legem facere) on such matters’ (Alexander III, 1169): a new look at the formation of the canon law of marriage in the twelfth century
Chapter 10: Manu Sollicitudinis: Celestine III and Canon Law
Chapter 11: De Consultationibus: the role of episcopal consultation in the shaping of canon law in the twelfth century
Chapter 12: The English Exile of Archbishop Øystein of Nidaros (1180-83)

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Leeming on Lawyers' History and Entick v Carrington

Mark Leeming, Justice of the Court of Appeal of the Supreme Court of New South Wales and Challis Lecturer in Equity at the University of Sydney Law School, has posted Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police, published as (2020) 49 Australian Bar Review 199:

John Entick (wiki)

Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.

--Dan Ernst

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Laske's "Law, Language and Change"

Caroline Laske, a research fellow at the Ghent Legal History Institute (Belgium) and the holder of a Heinz Heinen fellowship at the Bonn Centre for Dependency and Slavery Studies (Germany), has published Law, Language and Change: A Diachronic Semantic Analysis of Consideration in the Common Law (Brill, 2020):

In this monograph, Caroline Laske traces the advent of consideration in English contract law, by analysing the doctrinal development, in parallel with the corresponding terminological evolution and semantic shifts between the fourteenth and nineteenth centuries. It is an innovative, interdisciplinary study, showcasing the value of taking a diachronic corpus linguistics-based approach to the study of legal change and legal development, and the semantic shifts in the corresponding terminology. The seminal application in the legal field of these analytical methodologies borrowed from pragmatic linguistics goes beyond the content approach that legal research usually practices and it has allowed for claims of semantic change to be objectified. This ground-breaking work is pitched at scholars of legal history, law & language, and linguistics; and is of importance to scholars of private law working on promises and contract.

–Dan Ernst

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Weekend Roundup

• Rowan Williams on “Saving our Order: Thomas Becket, Henry II and the Law of Church and State,” 10 December 2020, 17:30 - 19:00.  H/t: LPK
  

• 
  The Smithsonian’s Lemelson Center for the Study of Invention and Innovation announces the webinar series, Black Inventors and Innovators: New Perspectives.  It is free and open to the public and will convene daily November 16–20, 2020 from 1:00-2:30pm ET. “This week-long program will draw renewed attention to historic and contemporary inventors of color and Black technology consumers, while discussing strategies for building a more equitable innovation ecosystem. Through presentations by an interdisciplinary group of thought leaders and engaged discussions with our online audience, this 'state of the field' workshop will identify critical questions, seek out new case studies, and articulate theories, concepts and themes to inform the next generation of research, archival collecting, museum exhibitions, and invention education initiatives.”  Kara W. Swanson, Northeastern University, is on Thursday’s panel. 
  

• Lawbook Exchange has released its catalogue on Law and Literature.
  

• Ronald K. L. Collins reviews Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical by Drexel University law professor Lisa A. Tucker (WaPo).

• Over at the Legal History Miscellany: Krista Kesselring on the hardships of 18th-century English law on wives

• And at Nursing Clio: Melissa E. Blair and Christopher Ferguson ask why so many scholarly fellowship programs are still residential.

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

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Goldsworthy on History of British Constitutional Theory

Jeffrey Denys Goldsworthy, Monash University Faculty of Law, has posted A Brief History of Constitutional Theory in Britain, which is forthcoming in The Cambridge Constitutional History of the United Kingdom (Cambridge UP):

This paper surveys the development of constitutional theory in England, and later Britain, from the Twelfth Century until today. It shows how contending theories attempted to reconcile the need for strong central authority to maintain order and justice, with the need to control that authority - either through law or political struggle - to prevent its misuse. It describes a gradual transition from theories of monarchical rule to those of mixed government and finally parliamentary democracy, and how they understood the place or role of the Church, the law, “the community” and “the people”.

--Dan Ernst

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English Manuscript Law Reports: A Query from Sir John Baker

[We have the following query from Professor Sir John Baker.  H/t: Michael Widener.  DRE.]

English Manuscript Law Reports

Over the course of my professional life as a legal historian, I have become aware both of the immense importance of unpublished law reports in the history of the common law and of the difficulty in finding them for want of adequate catalogues. The Selden Society has commissioned a descriptive catalogue, and work is under way to assemble and edit the descriptions of the thousand or so items of which we are currently aware. I have compiled lists over the years for my own use, and, since they include volumes found in librarians’ cupboards and on uncatalogued shelves, I am sure there must be other manuscripts which have not come to my attention in this rather random way. It would be a great service to scholarship if librarians could draw our attention to any manuscripts which might be included and which are not noticed in my English Legal Manuscripts in the U.S.A. The catalogue will cover the period 1500 to 1800 and will be limited to original reports of legal arguments, excluding trials, precedents of pleading, and commonplace books derived solely from printed sources. In cases of doubt, I will be glad to help with identification. Please send any information which might be helpful, including questions, to me at jhb16@cam.ac.uk.

John Baker
(Professor Sir John Baker, Cambridge)

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Selden Society Prizes to Papp-Kamali and Kennefick; Honorable Mention to McSweeney

[We have the following announcement from the Selden Society.  DRE] 

David Yale Prize

Instituted in 1998, this biennial prize is awarded for an outstanding contribution to the history of the law of England and Wales from scholars who have been engaged in research in the subject for not longer than about ten years.  Since 2017, separate prizes have been given for the best book and the best article published  in the preceding two years. The prize is named in honour of Mr David Yale, QC, FBA, then President of the Society and formerly Literary Director.

The 2019 David Yale Book prize was awarded to Elizabeth Papp Kamali for Felony and the Guilty Mind in Medieval England (Cambridge University Press, 2019). The prize committee said of this work:

Papp-Kamali’s Felony and the Guilty Mind in Medieval England is a wide-ranging and deeply researched contribution to the history of criminal law. In seeking to understand what ‘felony’ meant in medieval England, Papp-Kamali takes on a question which Maitland considered unanswerable. This book changes our existing understanding, using a challenging methodology which uses a much wider range of sources than is often the case in legal history scholarship. In doing so she places legal history within the history of wider cultural norms and influences to produce perceptive and valuable conclusions.

The committee also recommended that an honourable mention be given to Thomas J. McSweeney for his book Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (Oxford University Press, 2019)

The 2019 David Yale article prize was awarded to Ciara Kennefick for ‘‘The Contribution of Contemporary Mathematics to Contractual Fairness in Equity, 1751-1867’ in the Journal of Legal History 39 (2018), pp.  307-339. The prize committee said of this article:

Kennefick’s ‘The Contribution of Contemporary Mathematics to Contractual Fairness in Equity, 1751-1867’ is a genuinely novel re-examination of an important part of English legal history, highlighting the interaction between questions of law about contractual fairness, and mathematics. Interest in legal questions drove interest in the study of probability, while developments in the mathematics of probability came to resolve legal questions. The article changes the way we look at the history of this area of law.

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Sackar on Lord Devlin

Out this month by Justice John Sackar (Supreme Court of New South Wales) is Lord Devlin with Hart Publishing. From the press:

Lord Devlin was a leading lawyer of his generation. Moreover, he was one of the most recognised figures in the judiciary, thanks to his role in the John Bodkin Adams trial and the Nyasaland Commission of Inquiry. It is hard then to believe that he retired as a Law Lord at a mere 58 years of age. This important book looks at the life, influences and impact of this most important judicial figure. Starting with his earliest days as a school boy before moving on to his later years, the author draws a compelling picture of a complex, brilliant man who would shape not just the law but society more generally in post-war Britain.

Further information is available here.

--Mitra Sharafi

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