Gauls, the Sack of Rome, and Legal Dodges: Tony Thomas Seminar London, 30th Nov. 2018

This Blog is delighted to note that Dr Ulrike Roth of this University will be giving the Tony Thomas Seminar in the newly refurbished Bentham House on 30 November, 2018. Her title is “Third time lucky? The ‘history’ of a legal dodge and Roman republican historiography”. An abstract is included below.

When the Romans were attacked by the Gauls in 390 BC, and agreed to surrender, one of Rome’s greatest heroes – Marcus Furius Camillus – appeared just in time to stop the ransom exchange that the Romans had agreed with the Gauls – or so the story goes. Camillus challenged the ransom exchange on a constitutional basis, claiming that the agreement was invalid because it had been made by a magistrate of inferior status. A couple or three generations later, in 321 BC, the Romans were once more in a situation in which – according to their enemies (and Livy …) – they defaulted on an agreement. Livy makes the enemy leader exclaim that the Romans always “contrive to give the fraud some colour of legality”, citing specifically the situation in 390 BC (Livy 9.11.6-7):

Nunquamne causa defiet cur victi pacto non stetis? Obsides Porsinnae dedistis: furto eos subduxistis; auro civitatem a Gallis redemistis: inter accipiendum aurum caesi sunt; pacem nobiscum pepigistis, ut legiones vobis captas restitueremus: eam pacem inritam facitis. Et semper aliquam fraudi speciem iuris imponitis.

(Will you never, when you have been beaten, lack excuses for not holding to your convenants? You gave hostages to Porsinna – and withdrew them by a trick; You ransomed your City from the Gauls with gold – and cut them down as they were receiving the gold. You pledged us peace, on condition that we gave you back your captured legions – and you nullify the peace. And always you contrive to give the fraud some colour of legality.)

This paper first demonstrates the dependence of the constitutional aspect of Camillus’ interference in the Romano-Gallic ransom exchange in 390 BC on this later event, in 321 BC, and – second – the dependence of both legal dodges on a much later event still – in 137 BC. In consequence, a terminus post quem for the invention of Camillus’ “legal armoury” of 136 BC is suggested. The question thus raised is why it was important to attach this legal armoury to this Roman hero in the late Republic – and a tentative answer is given. The paper makes a contribution to our understanding of changes in the Roman handling of international agreements in the second century BC, Livy’s Ab urbe condita, and Roman historiography of the late Republic more broadly.

Those attending are advised to read the relevant passages of Livy in advance: 5.33-49.7, though for the idle it may be worth noting that chapters 47-49 are the most important ones for the purposes of the paper

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Adam Smith and a Close Shave?

Your blogger has been reading Jesse Norman’s excellent new biography of Adam Smith, entitled Adam Smith: What He Thought and Why it Matters (London: Allen Lane, 2018). The author manages to convey Smith’s thought with admirable clarity and elegance. It is an important, well-written, and accessible contribution that deserves to be widely read. As the author reminds us, Smith was famously troubled by conspiracies of merchants and tradesmen against the public, through, for example, among other methods, the creation of monopolies of rights to work in various employments.

The eighteenth-century world was one in which fashionable gentlemen wore wigs. Smith himself is obviously bewigged in the well-known Tassie Medallion of 1787 that provides our only reliable image of him. To accommodate a tight fitting wig, a man might need to shave his head. Portraits of men in relaxed clothing, such as gowns or banyans, often show them wearing turbans to cover their shaven heads, as they have discarded their wig for comfort. In the University of Edinburgh there is a splendid Raeburn portrait of Professor John Robison in a wonderful striped gown and a turban. The University also possesses a portrait of David Hume in formal clothes but wearing a turban. Raeburn also painted the aged Thomas Reid wearing a wonderful red turban. All of these shaven heads and wigs, as well as the fashion for women to have elaborate high hair involving hair pieces and extensions,  produced a world in which there was a great need for wigmakers and hairdressers, and, by 1789, there were apparently 89 master hairdressers in Edinburgh. But there was an important question: could they shave their clients?

In a world of electric and safety razors, it is very difficult to remember that shaving was once a skilled task. Roman legal texts on the action for damage to property discuss the death of a slave because a barber had set up his apparatus near a place where men were paying ball. For a man to agree to be shaved with an old-fashioned straight razor was indeed to agree to be very vulnerable. He has to allow another open access to his throat with a very sharp blade. This is no doubt why British people think of the legend of Sweeney Todd, the demon barber of Fleet Street; but there is a similar legend from medieval Paris about a barber and the production of human charcuterie.

The ancient profession of barber was once linked with the practice of surgery in the middle ages. Barber surgeons were important medical practitioners. Thus, James IV granted a charter to the Incorporation of Barber Surgeons of Edinburgh in 1505. This protected their privileges. By the end of the seventeenth century, the professions of barber and surgeon were clearly separated, and, under an agreement 1722, a separate incorporation of barbers was established in Edinburgh, with certain distinct privileges, notably that those who wished to practice shaving had to be members of the incorporation, to which a fee had to be paid. The incorporation claimed to have authority over those practicing the art of barbering in Edinburgh and various outlying districts. It was jealous of its privileges and can be found suing those who practised the trade without its permission in, for example, the Canongate and elsewhere.

The barbers of Edinburgh became particularly worried about the practices of hairdressers and wigmakers. They had started litigation against them in the 1740s, with a decree in 1750; they had recommenced litigation against the wigmakers and hairdressers in 1756, gaining a decree in 1761. Finally there was a lawsuit that ended in 1789 with a decree in favour of the wigmakers. At issue was the barbers’ privilege of shaving.

Records of the litigious barbers’ suits can be found in Session Papers, the NRS, and the archives of the Royal College of Surgeons of Edinburgh. On the database of Eighteenth-Century Collections Online can be found what purports to be the “Second Edition” of a Session Paper entitled “Information for the Hairdressers in Edinburgh; Against the Barbers of Edinburgh”, drawn up by Hew Dalrymple, and printed in 1758. This appeared during the actual litigation, and the date is roughly right for an actual advocation of the litigation on a point of law from the Court of the Bailies of Edinburgh to the Court of Session with the matter then being taken on Report by the Lord Ordinary to the Inner House. The Information seems absolutely correct in what it says. The language, however, seems exaggerated and the account given almost comical, at least to modern tastes, as if the paper contains a parody of the arguments for freedom of trade (in this case, shaving), which has led to a suggestion that it is indeed a parody and not a real Session Paper. Further research is needed to determine one way or the other. The Session Paper, real or not, does, however, very clearly present the argument of the hairdressers and wigmakers against the monopoly of the barbers. Whether the Paper is genuine, or indeed a parody prompted by the actual litigation intended to emphasise through comedy the case against the restriction on shaving, it dramatically presents the argument against pointless trade privileges and restrictions, ones indeed seen as constituting a conspiracy against the public interest.

Professor Daniel B. Klein of the Department of Economics of George Mason University in Fairfax, Virginia, editor of Econ Journal Watch, has just published a reprint of this ostensible Session Paper with an introduction: https://econjwatch.org/articles/information-for-the-hair-dressers-in-edinburgh-against-the-incorporation-of-barbers

From a broader perspective, the litigation was just one small part of the end of the monopolies of the trade guilds and the birth of a more modern economic world, the world for which Smith argued in The Wealth of Nations. The Session Paper, genuine or not, contributed to the discussions that led to that end.

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Surrey Roman Law 5 October

With the approach of the Inaugural Lecture of our own Professor of Roman Law, Paul du Plessis, it is worth reminding readers of this blog that Francesco Gigli of Surrey, will be giving a lecture on 5 October entitled “The Jurist’s Mind”, which focuses on the fact that the study of Roman law is about the future as well as the past.

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Inaugural Lecture: Roman Law Edinburgh

This is to remind readers of this blog that Professor Paul du Plessis will give his inaugural lecture on 10 October. The poster is below.

 

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Palaeography Classes

Palaeography is an important skill for legal historians, and indeed all historical researchers in records. The National Records of Scotland have just advertised their new palaeography course, starting 25 September. See

Reading Scotland’s Records

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Slavery and Imagery

One of the most successful books of the nineteenth century was Harriet Beecher Stowe’s Uncle Tom’s Cabin, first published in 1852. It is not a subtle work, and to modern tastes its sentimentality makes it rather unreadable. I suspect it is read nowadays only by a few specialists, or perhaps by students for projects. It is not without power; for example, the cruel, but Christ-like, death of Uncle Tom is very affecting if simultaneously risible. It was an overtly campaigning book, and indeed Harriet Beecher Stowe also visited Scotland as part of her campaigning in the fight against slavery in the U.S. south.

On a steamship journey down the Mississippi, Tom rescues Eva from drowning. She persuades her father to purchase him. Eva is somewhat nauseatingly angelic, and eventually falls ill and in the course of dying has a vision of heaven. The relationship of Eva with Uncle Tom obviously attracted the Victorians, and the commercial possibilities were exploited. Thus, there were a number of different Staffordshire figures of Eva and Uncle Tom, mass-market ornaments for fans. Here, for example, are photographs of the example owned by your blogger:

Your blogger was recently gifted a biscuit tin from the later nineteenth century. This was the century of the start of consumerism and mass markets in prepared foods. This biscuit tin contained biscuits from the well known Edinburgh firm then known as McVitie and Price. It is an ornamental object, decorated with scenes from Uncle Tom’s cabin. presumably it was produced with the idea it should be given as a present. There is the inevitable scene of Uncle Tom with Eva; but there are also depictions of other scenes, all named: the sale of Uncle Tom; the flight across the ice; and Tom with Haley. The image on the lid is unlabelled, but it must be Eva with Topsy:

Of course, Uncle Tom is now seen as an overly passive and subservient figure, and your blogger believes it was James Baldwin who first used the term “an Uncle Tom” in a pejorative way; but in Victorian times he served as an image of the evil of slavery, and the novel undoubtedly contributed to the campaign against it.

Reflecting his scholarly concerns, your blogger owns other objects that depict black people in ways that are undoubtedly much less acceptable nowadays, though interesting in themselves. To avoid offending delicate sensibilities, he will not reproduce them. These objects all draw on the nineteenth-century imagery of the black minstrel. The first is your blogger’s childhood golliwog (whom he named Gilbert); the second is a quite grotesque mechanical bank, consisting of the head and shoulders of a man who “eats” a coin put in his hand; and the third is a rum advert consisting of a statuette of a black man rolling a barrel.

The Staffordshire figures, the biscuit tin, and other other objects all indicate how images of black men and women were used in the past for a whole variety of purposes, both commercial and campaigning.

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New Honorary Professors

The Centre for Legal History is delighted to announce that the University of Edinburgh has appointed two of the United Kingdom’s leading legal historians as Honorary Professors in the School of Law with effect from 1 September, 2018. These are Professor Norma Dawson CBE of the Queen’s University, Belfast and Professor Catharine MacMillan of King’s College, London. Neither will be strangers to regular readers of this Blog; both have a distinguished international reputation and profile.

Professor Dawson has served as President, Vice-President, and Literary Editor of the the Irish Legal History Society, and has published extensively in the area of legal history, while she is also a distinguished intellectual property lawyer. Her modern and historical interests converge. She is in the process of completing a modern history of the Law of Treasure. She has had extensive experience of postgraduate supervision, and is much in demand to serve in panels and bodies concerned with legal education and matters of intellectual and historical significance. She has also had extensive community involvement  She has held research grants and fellowships from the British Academy and the Leverhulme Trust. A graduate of the Queens’ University she has passed her academic career in her alma mater. An Honorary Bencher of the Inn of Court of Northern Ireland, she had the honour of CBE conferred on her by Her Majesty in 2017.

Professor MacMillan is a graduate of the Victoria University and the Queen’s University, both in Canada, and of the University of Cambridge, England. Her work has hitherto had three-interlinked main themes – the law of contract, the history of the law of contract, and the life and work of Judah P. Bejamin. The latter was a lawyer in Louisiana, who became Attorney General and then Secretary of State of the Confederacy, and then had a distinguished career at the English bar. She has an interest in colonial and transatlantic issues. With extensive experience in PhD supervsion, she has taught in England at Queen Mary, London, and the University of Reading, before taking up her current chair. She has been in much demand and has given extensive service and professional engagement related to her research fields.

It is worth noticing some interesting parallels and differences between the universities of these two new Honorary Professors. The Queen’s University of Belfast was once a constituent College of the Queen’s University of Ireland, founded in 1845 to promote the education of Catholics and Presbyterians in Ireland, who could not attend Trinity College, Dublin, because of its religious requirements. The Queen’s University of Ireland also included the Queen’s Colleges of Cork and  Galway. In 1908, by Act of Parliament, the two latter became colleges of the new National University of Ireland, and Queen’s, Belfast became an independently chartered, still non-demoninational, university. The Queen’s University in Kingston, Ontario (where Professor MacMillan gained her law degree), was chartered in 1841, in what was then Upper Canada, as Queen’s College, to provide an educational institution for Presbyterians in the area. Earlier, Upper Canada had been officially Anglican, and the many Scots Presbyterians in the Province sought a college for the education of their future ministers and youth more generally. Queen’s remained linked with the Presbyterian Church until 1912, when, like its Belfast cousin, it became non-denominational and was renamed Queen’s University at Kingston.

The creation of these two institutions is part of the complex story the spread of university education in the United Kingdom in the nineteenth century (one thinks of the great English civic universities, notably the London Colleges),  some of which were also once constituent parts of a federal Victoria University, though they tend to have been founded somewhat later than the two Queen’s Universities. There are some institutions in Canada that can claim much earlier heritage, of course. Similar patterns can be found in other major colonies or dominions of the former British Empire.

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Loyal Dogs, and Dogs and Law

Dogs are proverbially loyal. Many traditional stories emphasise this. Odysseus’ dog Argos recognised his master after all his years away, after waiting for him to return to Ithaca. In Edinburgh, major tourist attractions are the statue and grave of Greyfriars Bobby, a Skye terrier that visited his master’s grave every day for fourteen years. The same story of the dog loyal after death is found all around the world in many versions. For example, it recently found a film representation in the Australian movie, “Red Dog” (the novel that influenced the movie is rather different).

The Japanese “Greyfriars Bobby” is Hachikō, an Akita. Hachikō was the dog of Professor Hidesaburō Ueno, Professor of Agriculture at the University of Tokyo. Professor Ueno commuted to work by train, and the dog developed the practice of going to meet him at the railway station on his return. One day, however, Professor Ueno died suddenly on campus and did not return. Thereafter for the nine years until his own death Hachikō would go to the station to wait for the Professor. While Greyfriars Bobby has but one statue, commissioned by Baroness Burdett-Coutts, Hachikō has had several. One was commissioned during his own life; though destroyed for the metal to support the Japanese War effort, a replacement was commissioned after the War, and it stands at the station. Another statue stands outside the Akita dog museum, and, as the dog was born in Ōdate, a further outside its station. An American film version of the story led to a copy at the US railway station where the American movie was filmed. Photographs of photographs of Hachikō also survive, as even does a recording of his bark. And a statue of Hachikō, this time with the Professor, was unveiled by the Tokyo Faculty of Agriculture in 2015, to mark the eightieth anniversary of the death of the dog. The statue stands just inside the No-seimon (gate) of the University of Tokyo’s Hongo Campus, in which the Faculty of Agriculture is situated.

But the fidelity of the dog has a legal-historical interest. The study of legal iconography shows how the fidelity of the dog has been harnessed for a wider significance in law. In Dutch art of the Golden Age dogs feature regularly, fulfilling a variety of symbolic functions, depending on their role in the picture, again, for example, often as symbols of faithfulness. Dogs are also regularly depicted in court rooms in seventeenth-century Dutch art. According to M. A. Becker-Moelands, these portrayals can have two purposes, depending both on where the dogs are situated, and with whom they are associated in the image. They can serve as a symbol of fidelity and reliability, or they can be a symbol of the openness of justice, as they have been able to wander into the court room.

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Legitimacy of Mary Queen of Scots

It is interesting to see that today, 10 May 2018, The Scotsman (p. 3) has an astonishing scoop: James V was not the father of Mary Queen of Scots, but instead it was Murdo Mackenzie! Ilona Amos has written that Fairburn Tower “was built in 1545 for Murdo Mackenzie, a close aide of King James V and father of Mary Queen of Scots.” Given that her current Majesty’s right to the throne derives from the legitimacy of Mary, Queen of Scots as great-grandmother of Sophia, Electress of Hanover, this revelation potentially rocks the foundation of the throne. Could this be a treasonous allegation? Or is it simply poor editing?

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VE Day

Today, 8 May, is VE Day, which seems to be being generally ignored in the British media. Of course the war against Japan continued. There is a major commemoration in Paris.

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