Tag Archives: Law

History of the Referendum

referendum-picture

It is fair to say that the result of the United Kingdom’s Referendum on continued membership of the European Union is one of the most controversial and fiercely debated topics in modern English Legal History. Rafts of previously silent Constitutional Lawyers have entered the arena to voice their opinions.

This ferocity has been an enduring theme surrounding Referendums since the earliest discussions regarding their introduction. The central pillar of controversy is that Referendums are arguably contrary to the concept of Parliamentary Sovereignty. This is the principle that Parliament, acting by its Members and Lords, can make or unmake any law whatsoever. Theoretically, if Parliament wants to pass an Act that mandates the slaughter of all blue-eyed boys, Parliament can do so. Practically this might present difficulties, but it is correct as a matter of English Constitutional Law.

The greatest advocate of Parliamentary Sovereignty was Constitutional theorist Albert Venn Dicey in 1885. Bizarrely, it was also Dicey who first advocated the introduction of Referendums in an 1890 article, a mere 5 years after the publication of his renowned text on Parliamentary Sovereignty. Dicey believed that Referendums could act as a direct democratic check against the corruption of elected parties. Dicey stated that the people could act as ‘Political Sovereign’.

Dicey wanted a Referendum on the subject of Irish Home Rule to try to defeat Ireland’s attempt to govern itself in the late 19th Century, but he was unsuccessful. In the early 1900s, Members of the Conservative party suggested using a Referendum every time the House of Commons and House of Lords disagreed on a Bill, but this was roundly rejected. Moreover, in 1903 Joseph Chamberlain unsuccessfully suggested a Referendum on the issue of tariff reform. This reform, fittingly, was to be a departure from free trade towards imposing custom duties on foreign imports.

The other main suggestion of this era (again rejected) was made by Winston Churchill in 1910 who recommended a Referendum as a means of answering the question of Women’s Suffrage.

Over the next several decades, the idea of Referendums became increasingly unpopular in England due to their use by dictators as a tool of oppression. By way of example, Hitler held a Referendum in 1934 to effectively give himself ultimate State power. Groups of people were escorted to polling stations by Nazi soldiers and then had to vote in public. Some ballot papers were pre-ticked ‘Yes’ and forgeries were so common in some regions of Germany that the number of votes cast was greater than the total number of people entitled to vote.

The next major suggestion was again made by Winston Churchill in 1945 to answer the question of whether his Second World War government coalition should continue until Japan had been defeated. In response, Clement Atlee described the concept of Referendums as ‘alien to all of our traditions’. In the decades after the Second World War, Referendums were barely mentioned; no issue seemed important enough to warrant a Referendum. Atlee’s sentiment was echoed by Margaret Thatcher in the 1970s, however this did not dissuade Harold Wilson from promising and implementing the first ever UK nationwide Referendum in 1975.

The United Kingdom has only held 3 nationwide Referendums. The first was on 5 June 1975 to decide whether to continue as a member of the European Economic Community (now the European Union) (67.23% Yes), the second was on 5 May 2011 to decide whether to adopt the Alternative Vote system (67.9% No) and, finally, on 23 June 2016, whether to continue as a member of the European Union (51.89% No).

Over the years, there have been various regional Referendums, mostly concerning the devolution of powers to Scotland, Northern Ireland and Wales (notably the Scottish Independence Referendum of 2014 – 55.3% No).

Although nationwide Referendums were firmly rejected in the early 1900s, the argument against them was not as strong for more localised Referendums and these were carried out from 1913. For example, in 1913 local areas in Scotland held Referendums on whether to implement the prohibition of alcohol. Of particular interest is that from 1881 pubs in Wales legally had to be closed on Sundays. In 1961, local areas of Wales were permitted to have a Referendum on whether they wanted Sundays to be ‘wet’ or ‘dry’ and for further Referendums asking the same question to take place every 7 years. Sadly, the Welsh pub Referendums were abolished in 2003.

Finally, since 1972 the people of local Parish areas have been able to call for a local Referendum, called ‘Parish polls’, to answer questions on community issues. These tend to be on local planning concerns and rarely have a turnout of more than a few hundred voters.

It is clear that Referendums are not new to English Legal History but are not by any means entrenched as an English democratic principle. Indeed, a system to govern Referendums was only put in place in 2000. The Electoral Commission oversees the conduct of Referendums and consults on how understandable the phrasing of the proposed Referendum question is. The recent EU membership Referendum has been so divisive that, on hearing a challenge, the High Court has held that Article 50 of the Treaty on European Union (relating to the withdrawal of a Member State from the EU) cannot be used in the UK without an affirmative vote in Parliament.

The UK Government has stated it will appeal this judgment and we will have to wait and see what the appeal decision will mean for the future of Referendums in English Legal History. One thing is certain, party leaders are going to think very carefully before including Referendum promises in their political Manifestos in the future.

Leave a comment

Filed under English Legal History

History of the University of Law

 The University of Law’s Guildford Centre (Braboeuf Manor)

Before discussing the specific history of the institution, we must look briefly to the 18th and 19th Century history of legal education in general.

An early regulator asserting some form of professional control on solicitors was the Society of Gentleman Practisers in the Courts of Law and Equity, which was established in 1729 (for a full discussion of this regulatory development and Articled Clerks in general, please see my blog post on the History of the Training Contract). This body had the aim of improving the standards and reputation of solicitors.

In 1823, several attorneys related to this group desired the establishment of the London Law Institution, again to ensure good practice amongst solicitors. The Law Institution was established in 1825 (London having been dropped), although its full formal title was the Society of Attorneys, Solicitors, Proctors and others not being Barristers, practising in the Courts of Law and Equity of the United Kingdom. By 1903, it had changed its name to the Law Society, although it had been colloquially known as this for years beforehand.

The Law Society began lectures for Articled Clerks in 1833. However, mandatory requirements as to examination before entering, and during, your Clerkship were not introduced until 1860 and practical powers to conduct these examinations were not given to the Law Society until 1877. Initially, the Law Society employed a staggering 3 lecturers who each gave between 9 and 12 lectures annually. By 1863, tutorials were offered to support smaller groups of students and in 1879 a 4th lecturer was hired. Furthermore, in 1893, 2 tutors were hired to assist specifically with the tutorials.

The Law Society had an extensive library which was open every day between 9am and 9pm (except for a summer term when it closed at 6pm, or on Saturdays when it closed at 4pm). Articled Clerks were allowed to access the materials if they paid an annual subscription of £2.

This development built up to the Law Society opening its School of Law in 1903, an institution which by 1908 had 10 employees. In a trend as old as education itself, attendance at the Society’s lectures was low and actually declined due to the intense competition of a private legal tutorial firm, Gibson & Weldon, who opened their doors in 1876. Students were not obligated to attend lectures and 88% of those who took the Law Society’s examinations attended none of the Society’s lectures.

In 1922, the Law Society required a mandatory year of lectures before sitting the middle of 3 examinations, the Intermediate Examination. Gibson & Weldon was the Law Society’s fiercest competitor and the Society negotiated a merger between them and its School of Law in 1962. The combined body was called the College of Law. The College was created in its official legal form by a Royal Charter of 1975.

In a trend that has continued, the tuition fee for a 1 year course at the College of Law was expensive; £914 in 1979 and for full-time Legal Practice Courses (a course replacing the old Final Examination) starting in September 2015; £14,750 at the London centres. A major change to the College of Law occurred in 2012 when it was granted full University status and changed its name to the University of Law. The re-branding and implications of this change are still being implemented as at 2015 and are likely to continue for several years to come.

From 1962 and over the following decades, the College of Law established itself as the premier provider of legal education and is a universally known and respected name amongst the legal profession. A range of centres were opened at locations across the UK, alongside the offering of a variety of courses. The University of Law now offers an undergraduate LLB law degree and has recently announced an MSc Masters degree in Law, Business and Management.

The University continues to be at the forefront of legal education and is heavily involved in the development, facilitation and improvement of the provision of, and access to, legal education. For example, through its fledgling Legal Services apprenticeships and a foundation course enabling international students, on completion, to study at undergraduate level at the University.

The University of Law is an institution with deep historical roots and, considering the dynamic changes in the regulation of legal education and changes in how the legal profession needs to operate to thrive, we may see further changes in decades to come.

1 Comment

Filed under English Legal History

Pirate Executions in Early Modern London

In the East London neighborhood of Wapping behind the Town of Ramsgate Pub lies a replica of a noose and hanging scaffold. This commemorates Execution Dock, most famous as the spot where pirates were hung for their crimes in early modern London.  Execution Dock was a place of execution for over four hundred years: the last execution to take place there was 1830.  Execution Dock served as the site for all fatally condemned maritime criminals, but the cruelest treatment was reserved for those to be hung for piracy.

‘A Perspective View of the River Thames’, 1780 (Photo courtesy of National Maritime Museum, PAD1370)

During the early modern period, the vast majority of criminals who awaited a fatal punishment were jailed in Newgate (now the location of the Old Bailey Central Criminal Court) and carted to Tyburn for a public hanging (now the location of Marble Arch).  Pirates and other maritime criminals, however, were instead often housed at Marshalsea Prison and carted southeast to Wapping for a public execution at Execution Dock.  Traditionally in English history, people were often executed at the place in which their crime occurred.  This was especially true with highwaymen, but over time the majority of criminal executions happened locally at Tyburn after incarceration in Newgate.  Pirates and other maritime criminals, however, still received traditional execution treatment by being carted down to the banks of the Thames. The Admiralty used Execution Dock as the symbolic location of the sea in which pirates committed their crimes.   

The High Court of Admiralty carried out the processes of pirates’ executions.  Initially established in the fourteenth century for early maritime legalities such as trade and funding overseas expeditions, the Admiralty Court had complete jurisdiction over maritime crimes by the mid-seventeenth centuries.  Once a pirate was captured, he was taken prisoner and shipped back to London to await trial and condemnation. Known as hostis humanis generis (enemies of all mankind), a pirate was immediately considered to be guilty before facing his trial.

The process of pirates’ executions had similarities to those hung at Tyburn, but there were key differences that set them apart from other criminals. As pirates were carted through the streets of London, they were led by a silver oar to symbolize the strength and authority of the Admiralty so all of London could see where the condemned were headed.  Once at the scaffold, the condemned pirate was expected to give the traditional ‘last dying speech,’ in which he would confess and atone for his crimes and warn others away from falling into his wicked way of life.  Pirates, notorious for their rebellious behaviour, sometimes used their speech as an opportunity to admonish cruel superiors.  

When this ritual was completed, the pirate would be hung by the neck until dead. However, his punishment was not a quick death. Nooses reserved for pirates were shorter than usual, causing a shorter drop and thus death by strangulation rather than a broken neck. This ritual became known as the ‘Marshal’s Dance’ because of the way the body would thrash around due to asphyxiation.  Generally, after a person’s execution, they were cut down from the scaffold immediately, but this was not so for pirates. The bodies of condemned pirates continued to hang at Execution Dock for a total of three tides to serve as a warning.  The most extreme case of this was of Captain William Kidd, executed for murder and piracy on the high seas, whose body remained strung up in the gibbets for three years to serve as a warning to other pirates.

‘A Pirate Hanged at Execution Dock’, c. 1795 (Photo courtesy of the National Maritime Museum, PAJ 0887)

Pirates were unperturbed by these gruesome warnings.  By the turn of the eighteenth century, pirates had grown so numerous that it became nearly impossible to transport captured pirates back to London because of the lack of an organized navy and the economic drain of transportation. After the British secured their Caribbean colonies from the 1670 Treaty of Madrid, which stipulated that the British would rid the seas of piracy, they decided to establish Admiralty Courts in Port Royal, Jamaica and colonial North America (Boston, Providence and Charleston). This allowed British legal jurisdiction to grab a firm foothold in their overseas colonies whilst regaining maritime order. It is no coincidence that Admiralty Courts were established in Jamaica right after the 1692 earthquake that nearly leveled the island. The complete rebuilding of Jamaica transformed the island from pirate haven to a ‘civil’ society.

The establishment of Admiralty Courts in North America had a large impact because for decades, local governors enjoyed amicable relationships with pirates until 1698. The Navigation Acts of 1660, which required all goods traded with British colonies in the Caribbean and North America to sail through England whilst barring North America from trading with other nations, encouraged smuggling and acts of piracy. Pirates would plunder ships, sell goods along the eastern seaboard and thus enjoy a bit of autonomy.  These happy privileges would end in 1698 when the Act for the More Effectual Suppression of Piracy was passed.  This Act created official legal definitions of piracy and allowed for them to be lawfully ‘examined, inquired of, tried, heard and determined, and adjudged in any place at sea, or upon the land, in any of his Majesty’s islands, plantations, colonies, dominions, forts, or factories.’  This law expanded the Admiralty’s jurisdiction to the Caribbean and North American colonies.  These new laws along with the establishment of overseas Admiralty Courts caused a rapid decline of piracy until it was virtually eradicated from the Atlantic World by 1730.

Rebecca Simon, PhD Researcher, King’s College London, Department of History

Rebecca is based at King’s College London, researching the link between pirate executions and British sovereignty in the early modern Atlantic world. Prior to coming to Kings she earned an MA at California State University Northridge where she researched perceptions of piracy through the novel Treasure Island.

5 Comments

Filed under English Legal History

History of Defamation

The common law test for Defamation.

Before the early 1300s, actions for the predecessor of defamation were obscure and purely within the jurisdiction of the Church courts, it was not until much later that the King’s courts allowed an action for defamatory words. The often physically-based nature of the common law was not in favour of creating an offence which rested on mere words. It was much more concerned with the tangible actions and results of, for example, assault, theft and murder.

It took until the 1500s before a common law action for defamation appeared. Perhaps the key reason for this delay, as outlined above, is the fact that pre-1500, defamation was seen as a purely spiritual matter and was therefore dealt with by the Church courts. The Church courts tried Defamation as a criminal offence and could only sentence the offender to penance, admittedly quite a light punishment. This early distinction between the Church and common law jurisdictions will be examined in a later blog post.

However, before this time, there were occasional actions that touched upon issues of defamation and the tarnishing of someone’s character or reputation. For example, in the 14th Century, there were actions brought by nobles who had been slandered in the King’s open courts. A judge in 1358 recovered a sizable sum of money for being called a traitor at court. Moreover, some actions were brought regarding false statements about men having second marriages, a very damaging accusation that could ruin their reputations.

Around the same time, the 1378 Statute of scandalum magnatum allowed important judges and Church officials to bring an action if they had been insulted or defamed. The first common law defamation case on record was brought in 1507, where the King’s Court changed its mind regarding mere words and decided they could impact the honour of a man as much, or even more so, than physical attacks. At the time, three categories of Defamation existed: (1) Words accusing someone of a crime; (2) Words accusing someone of being incompetent at their job and (3) Words accusing someone of having a particular disease (such as the French pox).

Human nature being as it is, this led to a flood of actions and various forms of defamation became the bread-and-butter work of the King’s court, becoming its most dealt with action by the mid-to-late 16th Century. In cases of 1557 and 1565, several judges made attempts to limit the number of actions by (1) insisting on the claimant proving special and real damage to their reputation; (2) words said as jokingly or in anger were not actionable and (3) by interpreting ambiguous words as less defamatory than they could potentially be. This did serve to limit the actions slightly but they were still extremely common. Several specific rules were also created, such as a man being able to bring an action even if he already possessed a bad reputation.

Until 1660, the common law did not draw a clear distinction between defamation that was spoken or that which was in writing. However, defamatory words in writing were often punished with harsher sentences. The current distinction is between impermanent, often spoken, statements (Slander) and permanent, often written, statements (Libel).

The current law of Defamation is broadly that an action can be brought in the High Court by a claimant if a published statement would make a reasonable person think worse of them. The actions revolve around the Slander and Libel distinction mentioned immediately above. There are several defences to such a claim: (a) Justification (where the statement is true), (b) Fair Comment (where the statement would be believed by a reasonable person) and (c) Privilege (where the statement is privileged, for example, something said in the Houses of Parliament).

Defamation is still a very popular action and cases involving it are regularly headline news with a variety of celebrities claiming their reputation has been tarnished, often by statements made in newspapers. This modern flood of actions led to the passing of the Defamation Act 2013, which came into force on the 25th of April 2013. This Act is geared towards striking a new balance between the claimant and defendant, seemingly making claims harder to prove by outlining a new requirement of serious harm to the claimant’s reputation and improving the strength of the various defences. The Act only applies to defamatory statements after its commencement therefore the older defamation law will apply in many cases going ahead in 2014/15.

3 Comments

Filed under English Legal History

Detection in England from Bow Street to the Met

Detectives have had a special niche in popular culture for many years. Beginning in the nineteenth century with the works of Charles Dickens and Wilkie Collins and followed later in the century by Arthur Conan Doyle’s Sherlock Holmes, detectives captured the nineteenth-century imagination. Today, crime novels, although still popular, have been supplanted by serialized crime dramas like the CSI and Law & Order franchises, and more recently by the revived Sherlock series and Luther. But where does this fascination with detection come from? Some have argued that the Victorians (and it certainly didn’t stop with them) had a keen enthusiasm for the macabre, whether it be executions, murders or other salacious tales of malice.[1] But it was not only the crimes that made headlines, it was the men who investigated them: professional detectives.

Bow Street police court

Bow Street police court

Formal detection in England began in mid-eighteenth century London with the Bow Street Runners. Begun by Bow Street magistrate Henry Fielding and continued under his blind half-brother John, the Runners were part of Fielding’s innovative approach to combatting crime. Since there were no centralized or professional police in England, the Runners were the first to systematize criminal investigation through information gathering. They investigated crimes for the government, helped private individuals, and even protected the royal family. Bow Street also had a series of mounted and foot patrols to police the city on regular beats. By the 1820s, however, the Runners’ reputation was in decline. Their legacy was tarnished by their association with thief-takers and they were known to collude with criminals to ensure the return of stolen property. Although effective, their methods were not as wholesome as the government would have wished and they were disbanded in 1839.[2]

The Bow Street Runners were an important forerunner to Scotland Yard’s detective force. Formed in 1842, shortly after the disbandment of the Runners and a horrific murder, the Detective Department was the first streamlined detective force in England. Given that the London Metropolitan Police (founded in 1829) was England’s first centralized police force, it made sense that the first police detectives operated in England’s, and Europe’s, largest city.

Old Scotland Yard (behind original location of the Metropolitan Police on Whitehall)

Old Scotland Yard (behind original location of the Metropolitan Police on Whitehall)

Scotland Yard’s detectives typically investigated serious felonies, especially murders. This is most likely because by the 1840s, the death penalty was only routinely applied for convicted murderers, and the government wanted seasoned officers to help investigate and prosecute those cases.[3] Such cases required flexibility in terms of time and location that regular police constables were unable to perform because they were restricted to their ‘beats’. To gain information, detectives made a habit of getting to know the criminal element in London, through frequenting pubs and races, employing informers and even using the newspapers to find information and discover possible frauds.

The Met’s detectives undertook inquiries assigned to them by the Commissioners of Police as well as undertaking investigative work for the Home Office, private individuals and institutions, and local magistrates. There were several sub-divisions within the detective department, with some men specializing in loan-office swindles, fraudulent betting, foreign inquiries, naturalization, and extradition cases. They also investigated political crime, guarded important figures of state, and kept an eye on foreign revolutionaries who fled their countries for safe haven in England. Detectives frequently undertook cases on behalf of foreign governments or institutions. In other cases, police detectives were asked to extradite foreigners back to their own countries, or to bring back English citizens from abroad on extradition warrants. Investigating forgery and coining offenses was also a routine detective activity.

Some of the men became quite famous. Charles Dickens took a shine to the first wave of detectives. He published interviews with them in his journal Household Words. He praised their talent for catching criminals, writing, “If thieving be an art…thief-taking is a Science.”[4] In his novel Bleak House, Dickens based the character Inspector Bucket on real life Detective Inspector Charles Frederick Field. Wilkie Collins also included a Met detective in one of his novels. Sergeant Cuff in The Moonstone was based upon Detective Inspector Jonathan Whicher. Both detectives are portrayed as intelligent, thoughtful and judicious men, albeit with a touch of mystery about them. The positive portrayal of police detectives by Dickens and Collins was a sea change in the way educated Britons perceived centralized policing. In the eighteenth and early nineteenth centuries, centralized police were considered symbols of continental despotism. By the 1850s the police and detectives had proved their worth by maintaining public order during turbulent periods (it is notable that unlike most continental states, England did not have a revolution during the nineteenth century) and combatting and investigating crime.

The ‘Bobby’ remains one of the more beloved figures in English culture – an accolade the English police worked hard to earn. The perseverance of nineteenth-century English policemen and detectives in the face of public skepticism and, at times, outright hostility paved the way for future police organizations. The creation of Special Branch in the 1880s, MI5 in the early twentieth century and the explosion of domestic and foreign espionage organizations during the First and Second World Wars owe their pedigree to the first waves of English detectives at Bow Street and the Met.

Rachael Griffin

Rachael Griffin is a PhD candidate at The University of Western Ontario in Canada. Her thesis is entitled: “Detective Policing and the State in Nineteenth-Century England: The Detective Department of the London Metropolitan Police, 1842-1878.”

For further interesting blog posts and resources, please see Rachael’s blog at http://victoriandetectives.wordpress.com.


[1] The best recent work on the subject is Rosalind Crone’s Violent Victorians: Popular Entertainment in nineteenth-century London (Manchester: Manchester University Press, 2012). Although less academic, Judith Flanders’ The Invention of Murder: How the Victorians Revelled in Death and Detection and Created Modern Crime (London: Harper Press, 2011) identifies the Victorian fascination with murder.

[2] J.M. Beattie, The First English Detectives: The Bow Street Runners and the Policing of London, 1750-1840 (Oxford: Oxford University Press, 2012); David J. Cox, A Certain Share of Low Cunning: A History of the Bow Street Runners, 1792-1839 (Portland: Willan Publishing, 2010).

[3] Philip Thurmond Smith, Policing Victorian London: political policing, public order and the London Metropolitan Police (Westport: Greenwood Press, 1985), 18.

[4] Household Words, July 13, 1850.

** This post is the result of independent academic work and is intended for future publication by the author. Please do not reproduce the content of this blog in print or any other media without permission of the author (reblogs excepted). Any questions or concerns can be directed to Rachael Griffin via the Feedback page

4 Comments

Filed under English Legal History