Posted by Krista J. Kesselring, 15 December 2019
In case you’re looking for holiday reading, here’s a list of a few new or imminently forthcoming books in legal history (very broadly defined) that I hope to read over the coming months, along with a couple I have managed to read this term that I’d highly recommend.
Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England. Cambridge University Press, 2019.
‘This book explores the role of mens rea, broadly defined as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors’ determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word ‘felony’ itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, was willed in a way not constrained by necessity, and was evil or wicked in its essence.’
Thomas J. McSweeny, Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals. Oxford University Press, 2019.
‘Priests of the Law tells the story of the first people in the history of the common law to think of themselves as legal professionals. In the middle decades of the thirteenth century, a group of justices working in the English royal courts spent a great deal of time thinking and writing about what it meant to be a person who worked in the law courts. This book examines the justices who wrote the treatise known as Bracton. Written and re-written between the 1220s and the 1260s, Bracton is considered one of the great treatises of the early common law and is still occasionally cited by judges and lawyers when they want to make the case that a particular rule goes back to the beginning of the common law. This book looks to Bracton less for what it can tell us about the law of the thirteenth century, however, than for what it can tell us about the judges who wrote it.
Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia. Harvard University Press, 2019.
‘To many observers, European law seems like the endpoint of a mostly random walk through history. Certainly the trajectory of legal systems in the West over the past 2,500 years is far from self-evident. In A Short History of European Law, Tamar Herzog offers a new road map that reveals underlying patterns and unexpected connections. By identifying what European law was, where its iterations could be found, who was allowed to make and implement it, and what the results were, she ties legal norms to their historical circumstances, and allows readers to grasp their malleability and fragility.
Herzog describes how successive European legal systems built upon one another, from ancient times through the establishment and growth of the European Union. Roman law formed the backbone of each configuration, though the way it was understood, used, and reshaped varied dramatically from one century and place to the next. Only by considering Continental civil law and English common law together do we see how they drew from and enriched this shared tradition.
Expanding the definition of Europe to include its colonial domains, Herzog explains that British and Spanish empires in the New World were not only recipients of European legal traditions but also incubators of new ideas. Their experiences, as well as the constant tension between overreaching ideas and naive localism, explain how European law refashioned itself as the epitome of reason and as a system with potentially global applications.’
Lindsay R. Moore, Women Before the Court: Law and Patriarchy in the Anglo-American World, 1600-1800. Manchester University Press, 2019.
This book offers an innovative, comparative approach to the study of women’s legal rights during a formative period of Anglo-American history. It traces how colonists transplanted English legal institutions to America, examines the remarkable depth of women’s legal knowledge and shows how the law increasingly undermined patriarchal relationships between parents and children, masters and servants, husbands and wives. The book will be of interest to scholars of Britain and colonial America, and to laypeople interested in how women in the past navigated and negotiated the structures of authority that governed them. It is packed with fascinating stories that women related to the courts in cases ranging from murder and abuse to debt and estate litigation. Ultimately, it makes a remarkable contribution to our understandings of law, power and gender in the early modern world.
Michael Lobban, Joanne Begiato, and Adrian Green, eds., Law, Lawyers and Litigants in Early Modern England: Essays in Memory of Christopher W. Brooks. Cambridge University Press, 2019.
‘Written in memory of Christopher W. Brooks, this collection of essays by prominent historians examines and builds on the scholarly legacy of the leading historian of early modern English law, society and politics. Brooks’s work put legal culture and legal consciousness at the centre of our understanding of seventeenth- and eighteenth-century English society, and the English common law tradition. The essays presented here develop a number of strands found in his work, and take them in new directions. They shed new light on central debates in the history of the common law, exploring how law was understood and used by different communities in early modern England, and examining how and why people engaged (or did not engage) in litigation. The volume also contains two hitherto unpublished essays by Christopher Brooks, which consider the relationship between law and religion and between law and political revolution in seventeenth-century England.’
Colin Rose, A Renaissance of Violence: Homicide in Early Modern Italy. Cambridge University Press, 2019.
‘Based on a close examination of more than 700 homicide trials, A Renaissance of Violence exposes the deep social instability at the core of the early modern states of North Italy. Following a series of crises in the early seventeenth century, interpersonal violence in the region grew to frightening levels, despite the efforts of courts and governments to reduce social conflict. In this detailed study of violence in early modern Europe, Colin Rose shows how major crises, such as the plague of 1630, reduced the strength of social bonds among both elite and ordinary Italians. As a result, incidents of homicidal violence exploded – in small rural communities, in the crowded urban center and within tightly-knit families. Combining statistical analysis and close reading of homicide patterns, Rose demonstrates how the social contexts of violence, as much as the growth of state power, can contribute to explaining how and why interpersonal violence grew so rapidly in North Italy in the seventeenth century.’
Tawny Paul, The Poverty of Disaster: Debt and Insecurity in Eighteenth-Century Britain. Cambridge University Press, 2019.
‘Eighteenth-century Britain is often understood as a time of commercial success, economic growth, and improving living standards. Yet during this period, tens of thousands of men and women were imprisoned for failing to pay their debts. The Poverty of Disaster tells their stories, focusing on the experiences of the middle classes who enjoyed opportunities for success on one hand, but who also faced the prospect of downward social mobility. Tawny Paul examines the role that debt insecurity played within society and the fragility of the credit relations that underpinned commercial activity, livelihood, and social status. She demonstrates how, for the middle classes, insecurity took economic, social, and embodied forms. It shaped the work that people did, their social status, their sense of self, their bodily autonomy, and their relationships with others. In an era of growing debt and the squeeze of the middle class, The Poverty of Disaster offers a new history of capitalism and takes a long view of the financial insecurities that plague our own uncertain times.’
Renaud Morieux, The Society of Prisoners: Anglo-French Wars and Incarceration in the Eighteenth Century. Oxford University Press, 2019.
‘In the eighteenth century, as wars between Britain, France, and their allies raged across the world, hundreds of thousands of people were captured, detained, or exchanged. They were shipped across oceans, marched across continents, or held in an indeterminate limbo. The Society of Prisoners challenges us to rethink the paradoxes of the prisoner of war, defined at once as an enemy and as a fellow human being whose life must be spared. Amidst the emergence of new codifications of international law, the practical distinctions between a prisoner of war, a hostage, a criminal, and a slave were not always clear-cut. Renaud Morieux’s vivid and lucid account uses war captivity as a point of departure, investigating how the state transformed itself at war, and how whole societies experienced international conflicts. The detention of foreigners on home soil created the conditions for multifaceted exchanges with the host populations, involving prison guards, priests, pedlars, and philanthropists. Thus, while the imprisonment of enemies signals the extension of Anglo-French rivalry throughout the world, the mass incarceration of foreign soldiers and sailors also illustrates the persistence of non-conflictual relations amidst war. Taking the reader beyond Britain and France, as far as the West Indies and St Helena, this story resonates in our own time, questioning the dividing line between war and peace, and forcing us to confront the untenable situations in which the status of the enemy is left to the whim of the captor.’
Hilary M. Carey, Empire of Hell: Religion and the Campaign to End Convict Transportation in the British Empire, 1788-1875. Cambridge University Press, 2019.
‘This revisionist history of convict transportation from Britain and Ireland will challenge much that you thought you knew about religion and penal colonies. Based on original archival sources, it examines arguments by elites in favour and against the practice of transportation and considers why they thought it could be reformed, and, later, why it should be abolished. In this, the first religious history of the anti-transportation campaign, Hilary M. Carey addresses all the colonies and denominations engaged in the debate. Without minimising the individual horror of transportation, she demonstrates the wide variety of reformist experiments conducted in the Australian penal colonies, as well as the hulks, Bermuda and Gibraltar. She showcases the idealists who fought for more humane conditions for prisoners, as well as the ‘political parsons’, who lobbied to bring transportation to an end. The complex arguments about convict transportation, which were engaged in by bishops, judges, priests, politicians and intellectuals, crossed continents and divided an empire.’
And on this subject, I’ll slip in one older title to which I came late. I only just finished reading it for class prep, but I would highly recommend it as a fascinating, beautifully written account of a particularly horrific moment in the history of transportation — one about which I’d known almost nothing: Emma Christopher, A Merciless Place: The Lost Story of Britain’s Convict Disaster in Africa. Oxford University Press, 2011.
‘This is a story lost to history for over two hundred years; a dirty secret of failure, fatal misjudgement and desperate measures which the British Empire chose to forget almost as soon as it was over.
In the wake of its most crushing defeat, the America War of Independence, the British Government began shipping its criminals to West Africa. Some were transported aboard ships going to pick up their other human cargo: African slaves. When they arrived at their destination, soldiers and even convicts were forced to work in the region’s slave-trading forts guarding the human merchandise.
In a few short years the scheme brought death, wholesale desertions, mutiny, piracy and even murder. Some of the most egregious crimes were not committed by the exported criminals but by those sent out to guard them. Acts of wanton desperation added to rash transgressions as those whom society had already thrown out realised that they had nothing left to lose.
As jail and prison hulks overflowed, and as every other alternative settlement proved unsuitable, the British Government gambled and decided to send its criminals as far away as possible, to the great south land sighted years before by Captain James Cook. Out of the embers of the African debacle came the modern nation of Australia.
The extraordinary tale is now being told for the first time – how a small band of good-for-nothing members of the British Empire spanned the world from America, to Africa, and on to Australia, profoundly if utterly unwittingly changing history.’
But above all, I’m looking forward to seeing the newly released book from a fellow contributor to this blog: Katherine D. Watson, Medicine and Justice: Medico-Legal Practice in England and Wales, 1700-1914. Routledge, 2019.
‘This monograph makes a major new contribution to the historiography of criminal justice in England and Wales by focusing on the intersection of the history of law and crime with medical history. It does this through the lens provided by one group of historical actors, medical professionals who gave evidence in criminal proceedings. They are the means of illuminating the developing methods and personnel associated with investigating and prosecuting crime in the eighteenth and nineteenth centuries, when two linchpins of modern society, centralised policing and the adversarial criminal trial, emerged and matured. The book is devoted to two central questions: what did medical practitioners contribute to the investigation of serious violent crime in the period 1700 to 1914, and what impact did this have on the process of criminal justice? Drawing on the details of 2,600 cases of infanticide, murder and rape which occurred in central England, Wales and London, the book offers a comparative long-term perspective on medico-legal practice – that is, what doctors actually did when they were faced with a body that had become the object of a criminal investigation. It argues that medico-legal work developed in tandem with and was shaped by the needs of two evolving processes: pre-trial investigative procedures dominated successively by coroners, magistrates and the police; and criminal trials in which lawyers moved from the periphery to the centre of courtroom proceedings. In bringing together for the first time four groups of specialists – doctors, coroners, lawyers and police officers – this study offers a new interpretation of the processes that shaped the modern criminal justice system.’