Bracton Centre for Legal History Research Summer Symposium 2019

If you would like to attend, please email R.J.Probert@exeter.ac.uk by Friday 12 July

Programme

Friday 19 July

12-1           Lunch

1-2             Getting started
                  Roundtable discussion of how to develop a legal history project

2-2.15        Break

2.15-3.45   Criminal law: prosecutors and defendants

Rachel Gimson (Exeter), ‘The Mutable Defendant: From Penitent to Rights-Bearing and Beyond’
Contemporary criminal justice is premised on a rights-bearing defendant safe-guarded from arbitrary state punishment by due process. However, pressures on the criminal trial can threaten this notion of a rights-bearing defendant. Through a legal history analysis, this article demonstrates that the role of the defendant has previously changed in response to historical pressures. Broadly, there have been three conceptualisations of the defendant; the penitent Anglo-Norman defendant, the advocate defendant of the English jury trial, and the rights-bearing adversarial defendant. Importantly, in each case the shift from one conceptualisation to the next has occurred gradually and often without commentary or conscious effort to instigate change. Today, a hyper-competitive news media, social media commentary, and eyewitness footage appears to be facilitating an increasing rhetoric that a criminal trial is something that needs to be deserved, rather than being a right. Such rhetoric goes against the rights-bearing defendant and raises the risk that contemporary pressures could once again be changing the role of the accused.
Cerian Griffiths (Lancaster), ‘The Prosecution of Naval Fraud in the Eighteenth Century’
England did not get a Director of Public Prosecutions until 1879. Prior to this, prosecutions were primarily brought by lay prosecutors, with police prosecutions becoming more common from the early nineteenth century. Much research has been carried out regarding the emergence of state prosecutors, with a particular focus upon the significance of the Bank of England. However, no attention has been paid to the significant role of the navy as a public prosecutor.
This paper explores the role of the navy as a prosecutor and more significantly, to demonstrate that the navy was one of the first state agencies to systematically pursue prosecutions against the wider public. During the eighteenth and early nineteenth centuries, the navy had a complicated and sometimes problematic approach to the payment of wages and prize monies. This pay system exposed the navy to potential frauds committed by both employees of the navy and people external to the institution.
Between 1760 and 1820, nearly 20 percent of fraud prosecutions at the Old Bailey were brought by the navy. These prosecutions were well organised, utilised legislation drafted by naval agents, and almost always resulted in a capital sentence. This paper will explore the ways in which the navy introduced and shaped the role of the public prosecutor and will conclude by opening up some potential future avenues for research of this topic.

3.45-4.15         Break

4.15-5.45         The Victorians and social reform

Laura Lammasniemi (Warwick), ‘“I was standing between her and ruin” – Regulating age of consent in late nineteenth-century England’
This paper will focus on age of consent reform efforts in late Victorian England. The age of consent for girls for sexual activity outside marriage was reformed through different statutes in the late Victorian period, most notably in 1885 when the Criminal Law Amendment Act raised the age of consent to sex outside marriage from thirteen to sixteen. All these measures applied exclusively to girls and there was no minimum age of consent for boys as such outside marriage, indicating that whereas sexual desire and consent for boys and men were constant, girls had to be protected by law. The paper argues that the various age of consent reforms are not simply a way to create boundaries of maturity. These reforms must also be seen in the context of wider social reform initiatives that focused on working-class families, and they were driven by concern over lack of moral fabric within working-class families. The paper draws form earlier work of Judith Walkowitz and Deborah Gorham in particular on sexual danger, and shows that the notion of sexual danger has to be also understood in the context of social class and family relations. Drawing from archival records, case law, and parliamentary papers, the paper adds to scholarship on legal and women’s history of moral regulation.

Rachel Pimm-Smith (Lincoln), ‘Assumption and reality: Victorian misconceptions about child poverty’
Victorian lawmakers made numerous assumptions about why poor parents admitted their children to state-run children's institutions during the late-nineteenth century. Lawmakers proceeded to rely on these assumptions in order to justify the first restrictions on parental rights. Assumptions about the motivations of poor parents were premised on entrenched middle-class beliefs that the poor were lazy and desperate to avoid parental responsibility. Child custody rights were successfully curtailed on the basis that the state could do a better job of raising poor children than their biological parents. This paper discusses the main claims advanced by nineteenth-century lawmakers to justify changes to parental rights along with empirical data drawn from institutional sources that shows these justifications lacked empirical backing.

7pm               Dinner

Saturday 20 July

9-9.45             Bankruptcy and insolvency

Fleur Stolker (Oxford), ‘Bankruptcy and insolvency in the early modern Court of Chancery: Tyffin v Hart (1619) and “bills of conformity”’
One of the fundamental principles of bankruptcy law is the formal discharge of excess debts that enables debtors to make a fresh financial start in life. In England, the notion of full financial rehabilitation is generally attributed to an eighteenth-century statutory development in the Bankruptcy Act 1705, but, in fact, the concept of financial rehabilitation existed in equity at least a century earlier.                     
In the early seventeenth century the Court of Chancery developed doctrines based on various types of debt settlements. In particular it developed a form of proceeding called a ‘bill of conformity’, according to which an insolvent debtor and a majority of his or her creditors agreed to a pro-rata reduction in their debts. They then petitioned the Court of Chancery to enforce the same reduction on ‘refractory creditors’, that is those who would not agree to any reduction. Tyffin v Hart (1619) is one of the leading cases on ‘bills of conformity’. The work builds on the existing scholarship by WJ Jones, DA Smith and J Sgard. It uses the unexplored manuscript records of the Court of Chancery between 1543 and 1628 to further develop the understanding of bills of conformity. It analyses why certain equitable settlements were accepted by Chancery, while others were not. It then compares them to the Chancery practice in relation to formal, statutory bankruptcy. It shows an early legal story of financial rehabilitation, demonstrating that this was not a product of the eighteenth-century legislature, but of a much earlier Court of Chancery.

9.45-11.15       Regulating marriage: adultery, bigamy and divorce

Rebecca Shaw (Bristol), ‘The leges Iuliae and its narratological blueprint’
The law, both ancient and modern, is ‘full of stories’ and every law has its own tale to tell. The recognition that laws and legal systems are narratively configured is not in itself new (see Friedman 1969), and the late first century BCE Augustan Marriage Legislation, the leges Iuliae, is no exception. A narrative emerges from and around these laws, constructing a story about the Augustan concept of marriage, children and adultery. The creation of the legislation saw for the first time a very clear shift towards greater regulation by the state, with financial rewards provided for marriage and childbirth, and penalties for those caught committing adultery. However, scholarship on the legislation to date has particularly favoured analyses which examine the moralising discourse of the legislation, as part of a wider programme of moral reform (see Galinsky 1996; Edwards 1993; and Milnor 2005). My paper will demonstrate that we can do more to understand how the narratological blueprint of this legislation has impacted later legislators. I will ask how a narratological approach, based on the models presented by Vladimir Propp and A.J. Greimas, might refine our understanding of the various patterns, characterisations and prejudices which appear in the Augustan Marriage Legislation, and how this has affected and shaped later laws. In particular, how is the relationship between marriage and children framed in the ancient legislation, and to what extent do modern debates about marriage reflect, or differ, from the ‘script’ engendered by the leges Iuliae?

Carol McKinven (St Andrews), ‘“Your big Scotch feet will never fit into my small English shoes”: cross-border bigamy in nineteenth-century Scotland’
The implications of multiple legal and criminal justice systems within the small geographical area of the United Kingdom were brought into sharp relief by the increased population mobility of the nineteenth century. Matters which could be considered a private affair, such as marriage, are, of course, greatly affected by the laws of the land, and with Scotland’s distinctive arrangements for marriage - in particular, the continued legal recognition of irregular marriage long after other Anglophone countries – divorce, and even the bigamy law itself, very similar circumstances could result in different outcomes, depending on jurisdiction.
Some 85 English-born individuals were prosecuted for bigamy in Scotland between 1837 and 1901, with at least another fifteen discharged before trial. This paper presents new research findings to highlight the challenges that ensued for the individuals involved, and for the Scottish criminal justice system. It also explores how and why these individuals ‘committed bigamy’, and the extent to which the individuals’ understanding of marriage and divorce law, subconsciously transplanted along with their belongings, contributed to their cases.

11.15-11.30     Break

11.30-12.15     Getting published
                        Roundtable discussion with insights from editors!

12.15-1.00       Lunch and close