Category Archives: Legal History

Stavros Brekoulakis, ‘The Historical Treatment of Arbitration under English Law and the Development of the Policy Favouring Arbitration’

Abstract The article examines the judicial attitude and the development of the policy of English law favouring arbitration. It suggests that, contrary to the prevailing narrative in legal literature, English judicial attitudes in the 18th and 19th centuries never reflected a hostility to arbitration. As is demonstrated, a policy favouring arbitration was introduced by the […]

‘Sherman on Cy-Près’

‘Caroline R Sherman, Catholic University of America, has published The Uses of the Dead: The Early Modern Development of Cy-Pres Doctrine with the Catholic University of America Press. From the publisher: “Cy-près doctrine, which allows the purpose of a failing or impractical charitable gift to be changed, has been understood since the eighteenth century as […]

‘Savagery, civilization, and property II: Civilization and its discontents’

“The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents), of what would come to be known as ‘stadial theory’ or ‘four-stages theory’. This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New […]

Martin Minot, ‘The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries

Abstract This Note challenges William Blackstone’s modern position as the ‘oracle of the law’ in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This […]

Lloyd Bonfield, ‘Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship’

Abstract This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence […]

Mark Coen and Niamh Howlin, ‘The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries’

Abstract Jury riders are statements that accompany verdicts. This article examines the use and contents of jury riders in Ireland and England in the nineteenth and twentieth centuries. It reveals the wide variety of contexts in which jurors appended statements to their verdicts and suggests a typology of jury riders in order to better understand […]

Louis Hensler, ‘Moses’ Restatement of Torts: Modern Principles of Justice and Efficiency in the Mishpatim’

Abstract Nineteen verses from the mishpatim (Exodus 21:18-22:6) address a surprisingly wide variety of tort doctrines such as the privilege of discipline, transferred intent, proximate cause, premises liability, punitive damages, self-defense, defense of property, trespass to chattels, conversion, trespassing livestock, and abnormally dangerous activities. While some of this passage from the mishpatim focuses on non-tort […]

‘Art and Copyright: what can we learn from the past?’

“Who does the modern law of copyright seek to protect? We are familiar today with the claim that artistic copyright protects artists and, perhaps, users of copyright works. Roll back 150 years, to the nineteenth century, and artistic copyright was also understood in a number of other ways, which are long forgotten today. For instance, […]

Burrell and Kelly, ‘Myths of the medical methods exclusion: medicine and patents in nineteenth century Britain’

Abstract 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 […]

Greenleaf, Chung and Mowbray, ‘Speaking Notes: Launch of the Foundations of the Common Law Library (1215-1914)’

Abstract It is now more than 800 years since the Magna Carta of 1215, soon after which English law started to document its history. In some ex-colonies of the British Empire, the common law has been part of their legal history for over 200 years. This presentation sets out the background to the Foundations of […]