On Taking from Others: History and Sensibility in Archaeologists’ Arguments for Treasure Trove Legislations

The Indian Treasure Trove Act of 1878 is understood as a landmark legislative victory in the preservation of South Asian material pasts. This paper presents a detailed archival history recounting how archaeologists themselves were crucial to the promulgation of the Act and the authors of its specific provisions. It demonstrates how arguments for the reform of royal prerogative into an instrument for the discipline were born in mid-nineteenth-century British debates, where archaeologists’ attempts for a similar statutory change in property laws had been frustrated. Centuries-long tensions in common law definitions and their governance of treasure are demonstrated to be crucial to how we may better understand the new ‘policy’ of the colonial law and its operation. To do so, the paper reviews select cases and presents an evaluation of the archaeological justice of the rule of this law. It asks why our critical historiography has remained insensible to the victims of this law — archaeology’s counter-publics — who have been routinely incarcerated and punished in the name of the greater archaeological common good. Through these examinations, the paper reflects upon the enduring sensibilities and commitments that are involved in continuing to take treasures from others.     

The secret of my succession: dynasty and crisis in Vandal North Africa

The system of royal succession in the Vandal kingdom of North Africa has long been regarded as idiosyncratic within the early medieval west, but its fullest implications have rarely been investigated closely. The present article examines the origins of succession by agnatic seniority under the strong rule of King Geiseric, and argues that it was one of several innovations intended to establish the emergent Hasding royal house against other aristocratic challenges. The article goes on to explore the consequences of this law in the two major dynastic crises of the Vandal kingdom: under Huneric in c.481 and under Hilderic in 530. In both cases, the standard narratives of events are challenged, and with them assumptions about the ‘constitutional’ status of Geiseric's law of succession.     

The Militia Ordinance of 1642 and the 14th‐Century Great Statute of Praemunire

This article opens with a review of the important scholarship concerning the conflict over prerogative between the crown and parliament from mid 1641 through the winter of 1642. The resulting impasse was over which of these institutions would control the militia. This article argues that the Militia Ordinance committee was committed to ‘the legal process’ in developing its directive of March 1642. The balance of the study reviews the medieval Statute of Praemunire, its subsequent development, and how that law would have provided an essential basis for the parliament to assume control of the militia. The article concludes that the Long Parliament acted legally with the Great Statute of Praemunire as a reference point for the adoption of the Militia Ordinance. This conclusion rests on five evidentiary considerations: (i) surviving texts of Commons’ private diarists; (ii) the probable role of John Selden in the Militia Ordinance committee deliberations; (iii) the September 1642 publication of John Marsh's An Argument Or, Debate In Law of the Great Question Concerning the Militias; (iv) proposition five of the Nineteen Propositions; and (v) language parallels between the 1393 Great Statute and the Militia Ordinance itself.     

Does the Law and the Constitution of the Family Have to Change?

The law and constitution of the family has been targeted for transformation in recent years, leading most notably to the Supreme Court's decision in Obergefell v. Hodges, mandating same-sex marriage as a matter of constitutional law. In this essay I undertake a thought experiment, asking how advocates of traditional marriage ought to want the law of marriage to change in light of this development. I begin by reviewing the argument for legal change sketched by Aquinas and then applying it to developments concerning marriage in modern America. Next I sketch the natural-law argument on behalf of traditional marriage. Finally, I turn to the case of Michael H. v. Gerald D., in which the Supreme Court upheld a statutory reiteration of the common-law presumption that the husband of the mother is the father of her child, against a challenge from the biological father, suggesting that this case, long admired by conservatives, needs to be reconsidered—and that the dissent in the recent Indian Adoption Case recognizing a constitutional right of biological parents might prove useful to the restoration of marriage law.     

Law and the peasant: rural society and justice in Carolingian Italy

Comparative analysis of the most important Carolingian‐period Italian placiti dealing with the defence of freedom allows us to reconstruct the approach taken by various large monasteries as they attempted to transform their landholding into coercive power over people, by converting dependent freemen into slaves. Similarly, it reveals the strenuous defence mounted by the freemen who were thus threatened, who were clearly perfectly aware that a downgrading of their legal status would be far more serious for them than an economic downgrading. It also permits an analysis of placiti as sites for the representation of public power, in which the ideological model of the king as ‘protector of the weak’ was often scuppered by the ability of many potentes to use for their own advantage either the presence of royal officials, or those very legal processes which were supposed to guarantee protection of the pauperes.     

Legal learning and saintly authority in thirteenth-century hagiography: the Magna vita sancti Hugonis

Law is central to the construction of sanctity in Adam of Eynsham’s Magna vita of Hugh of Lincoln (1186–1200). Hugh had no formal training in canon law, and, beyond the Magna vita, there is no evidence to suggest that he was a particularly proficient judge. If that lack of legal training was not a problem in Hugh’s lifetime, it had become a more sensitive issue by c.1212, the date of the composition of the Magna vita. Rather than ignoring the law, or denying its importance, Adam attempted to demonstrate that Hugh received mastery of legal argument as a divine gift, and multiple miracles involve Hugh correcting legal scholars. Recognising these careful patterns of construction raises problems for reading Adam’s Magna vita. While Adam has traditionally been characterised as a truthful biographer, this reading suggests he was engaged in a more complex project of marrying sanctity to legal learning.     

Commercial fraud in the middle ages: the case of the dissembling pepperer

Medieval business ethics is a topic of recent interest among historians. This study examines a case of commercial fraud, the falsification of saffron, in the southern French town of Montpellier in the mid-fourteenth century. Impure saffron was seized by urban inspectors at the workshop of a pepperer, Johannes Andree. Upon the testimony of witnesses, the impurity of the saffron was corroborated, and municipal justice decreed that it be publicly burned. Johannes Andree chose to contest this verdict, claiming exemption from judgment upon the grounds that he was a royal moneyer. A conflict of jurisdiction ensued, with the vector of Montpelliéret supporting Andree against the municipal consuls and the town bailiff.This study focuses on the documentary evidence of the law suit: the nature of the accusation against Andree, the legitimacy of his defence, the precedents for consular supervision of the pepperers' trade and the importance of quality control over merchandise, and the background of the jurisdictional dispute between the consuls and the rector. Finally, the legal terminology of this case of commercial fraud is considered in the context of legal theory and medieval jurisprudence. From this analysis of municipal justice in practice, standards of business ethics, consumer protection and quality control emerge as important concerns in a trading centre such as Montpellier.     

Law,Principle, and the Theologico-Political History of Sovereignty

Abstract

This article takes it cue from the debate between Carl Schmitt and Erik Peterson regarding the possibility of political theology within Christianity, and in response, offers a conceptual-historical portrait of sovereignty and its juridical dimensions. Beginning with the introduction of Roman law into the medieval Church, the article traces the logic of “legal principle” as the basis of sovereign decision and how the form of legal distinctions adopted into canon law translate the Romanitas of law into the theory of papal sovereignty. By the Romanitas of law, that is to say the principle of sovereignty in law. The article then seeks to describe the conceptual translations of Roman politics and Stoic metaphysics into theological form and the logic of this translation into medieval natural law. The article concludes by evaluating how the civic theology of Rome is conceptually inherited by the politics and legal framework of sovereignty and returns to Peterson’s critique of Schmitt, arguing that political theology can be understood as a dynamic where politics is theologized, assuming that in the history of religion, theology and politics are never fully distinct to begin with.     

Banishment,Urban Community and Judicial Practice: Thieves in mid-17th-century Turku

The practice of banishing thieves, and the changes that took place in that practice in mid-17th-century Turku, illuminates the issues of building a good urban community as well as the changes that were happening in law and judicial practice in early modern Sweden. Variations and changes in punishing thieves in the 1640s and 1650s in Turku show that the position of the thief in the urban community, and the amount that was stolen, affected the courts’ considerations throughout the two decades. Nevertheless, an ongoing tendency towards moderation in sentencing is visible in courts, and the influence of a new penal ordinance of 1653 is noticeable. The banishment of thieves, even if it removed unwanted people from town, was no more strongly connected to the goal of creating a good community than other punishments were. Both banishment and other punishments, however, were connected to the conceptions of an ordered and harmonious community. The court cases, nevertheless, show that the makeup of the Turku urban community was more open than the strict moral or legal guidelines of the time would suggest.     

Plato and the Theodosian Code

The codification project initiated in 429 ad that resulted in the Theodosian Code was originally designed to integrate three types of law: one, imperial constitutions since Constantine; two, the legal material collected in the tetrarchic Codices Gregorianus and Hermogenianus; and three, a florilegium of juristic writings and responsa. The ultimate aim was to condense all this in a single comprehensive law book that would govern the entire life of the empire and its subjects. As this paper shows, such a project had no precedent in Roman legal history and in fact ran counter to the traditional multiplicity of legal sources in Rome. This prompts a question: from where did the intellectual fathers of the codification project drew inspiration for such a revolutionary idea? In the paper's second part, I argue that one important model for the codification project of 429 could have been the legal code Plato designed for the ideal state of the Laws.     

Legal uncertainty,resistance to royal taxation and rural revolts in late medieval France: the case of Beauvoir-sur-Mer and Bois-de-Céné (1480)

In 1480, the inhabitants of Beauvoir-sur-Mer and Bois-de Céné, two small towns on the Atlantic coast of Poitou, in France, rebelled against the officials in charge of collecting the salt tax and arrested some of them. Despite the fact that the resulting civil disturbance had few long-lasting consequences, the case is an effective illustration of the dynamics of rural revolts at the end of the fifteenth century. This article demonstrates how violence was only the last stage of protest against royal taxation; the riots had been preceded by legal resistance and negotiations. The article also shows how the events were permeated and fuelled by judicial complexity and a climate of legal uncertainty surrounding the rights of French officials to collect the tax. These revolts must then be understood not simply as a reaction to excessive taxation, but more as self-defence against royal officials who refused to acknowledge the rights of the inhabitants of these towns.     

Pro tutela regni: revisiting a royal diploma from 918 on the birth of Normandy and the first ‘ducal’ laws

The Treaty of Saint‐Clair‐sur‐Epte (911) and the cession of Normandy to Rollo have long been considered as evidence of a decline in Carolingian power during the reign of Charles III the Simple. If, during the twentieth century, this view has undergone gradual revision, the role that the king could have played in the process of the Normans’ installation on the Seine remains obscure. A review of the relevant royal diplomas, in particular that of 14 March 918, suggests, however, active participation by the king in the emergence of a Norman march in Neustria: that is to say, a political and legal programme intended to reaffirm royal authority over this part of the regnum Francorum. This rereading, based on Frankish texts, on Christian ideology and on the Roman heritage, suggests a new interpretation of the settlement of Scandinavians in Normandy, the emergence of a Norman principality, and the genesis of the famous ‘laws of Rollo’.     

Kingship and good lordship in practice in late medieval England: Henry VII,the earl of Oxford and the case of John Hale, 1487

This article opens up a neglected source-base for the study of late medieval England: royal writs under the privy seal to the chief justice of the King’s Bench ordering a halt to legal proceedings. These writs gave the king a greater degree of flexibility than simply pardoning someone, including allowing him the option of reopening cases. This article demonstrates the value of this neglected instrument of royal power by placing one example in a broader context. The case study focuses on a writ sent by Henry VII to his chief justice halting the case against John Hale, a yeoman, who was in the contingent of John de Vere, earl of Oxford, in the lead up to the Battle of Stoke. It illuminates the nature of kingship and good lordship in late medieval England, showing how the two ideas could interact for the benefit of king, lord and servant.     

The Many Tongues of the King: Indigenous Language Interpreters and the Making of the Spanish Empire

General language interpreters of Lima's High Court of Appeal (Audiencia) played a significant part in gaining access to the Spanish system of justice for the indigenous populations of Peru. These interpreters worked as translators in lawsuits, notarial transactions, and other legal and administrative procedures conducted or supervised by the viceroy, the justices of the Audiencia, the public defender of the Indians, and other officials stationed at the viceregal court. But they also served as legal agents and solicitors for native leaders and communities litigating in Lima or aspiring to take their cases to the Supreme Council of the Indies in Spain. Through formal and informal dealings, these interpreters brokered between the king and his native subjects, thus connecting indigenous groups with the Habsburg royal court. The careers of these official translators illustrate the crucial roles played by indigenous subjects in the formation of what can be termed the ‘Spanish legal Atlantic,’ an organic network of litigants, judges, lawyers, attorneys, and documents bridging courtrooms on both shores of the ocean.     

Bringing the feudal law back home: social practice and the law of fiefs in Italy and Provence (1100–1250)

ABSTRACT

The Libri feudorum is a composite law book containing the customary laws of fiefs held in Lombardy which were codified in 1100–1250. Its function in shaping a late medieval ‘feudal vocabulary’ and, ultimately, modern models of feudalism was highlighted by Susan Reynolds and lies at the core of her anti-feudalism paradigm. This paper questions the disjuncture between social practice and learned law that underlies the paradigm, by analysing the context and making of the Libri feudorum and of legal writings associated with it – by Pillius de Medicina, Iacobus de Ardizone and Jean Blanc. By showing how practice could shape legal tools used by learned lawyers to frame fiefs and by reassessing the influence of the Libri feudorum on practice, the paper challenges the idea that fiefs were the outcome of professional or academic law and unveils aspects of the practical nature and intellectual dimension of lawyerly writing.     

Indigenous Legal Principles: A Reparation Path for Canada’s Cultural Genocide

ABSTRACT

This article argues that Canada’s justice system and the lawyers that operate within it are ill prepared to comprehend or reconcile the relationship between colonial legal systems and indigenous systems of law. They do not get training in indigenous law, so vital to crafting appropriate reparations for the wrongs justified by colonial practices and prejudices, and that could open doors to reconciliation and healing. The example used in this article to illustrate how the two systems of law could successfully interact is the historic Indian Residential School Settlement – the largest settlement in Canadian history, almost entirely based on Indigenous law and legal theory, and harmonized in part with principles of the common law of tort. The Indian Residential School Settlement proves that in post-colonial societies western frameworks lack the tools necessary to remediate injuries motivated by systemic discrimination, which, in this case, was cultural genocide. Different perspectives and legal theories are necessary to craft appropriate reparations and the processes used to achieve them. Unless indigenous laws, traditions, and practices are central to the design and implementation of reparations, state responses to the cultural genocide perpetrated against indigenous peoples in Canada will not open pathways to either healing or reconciliation.     

British Postal Packet Hanover, 1757: a legal history

The wrecking of the Falmouth Postal Packet Hanover in 1763 led to three legal disputes and two court cases—in 1766 and 1997. This article recounts the origins and course of these disputes. It examines what the resolution of the 18th‐century case and the second dispute has revealed of the law and practice of marine insurance in the mid 18th century. It further examines what the 20th‐century case has revealed concerning the tension between ancient principles of commercial salvage and modern principles of heritage protection. Somewhat fortuitously, the examination of the case provides an opportunity to advance a simple solution to this conflict.     

Margaret Beaufort,Royal Tapestries,and Confinement at the Tudor Court

The English royal household ordinances document the important role tapestries played in Tudor court ceremony. This paper re-examines one specific aspect of the 1493 ordinances: whether or not Margaret Beaufort, mother of Henry VII, dictated the textile practices surrounding royal childbirth. Once widely believed to have done so, scholars have abandoned the idea for lack of evidence. The issue is more complicated than it seems, in part because of longstanding bibliographic error and also because texts associated with two events involving Margaret — the birth of Princess Margaret and the publication of William Caxton’s Blanchardyn and Eglantine — suggest that she was highly attuned to the importance of royal spectacle as mandated by the household ordinances.