I. Attainder and Forfeiture, 1453 To 1509

1961 ◽  
Vol 4 (2) ◽  
pp. 119-151 ◽  
Author(s):  
J. R. Lander
Keyword(s):  
Married Woman ◽  
Maternal Inheritance ◽  
Common Law ◽  
Richard Ii ◽  
The Family ◽  
The Common ◽  
The Law ◽  
Late Fifteenth ◽  
Definition Of ◽  
First Time

Attainder was the most solemn penalty known to the common law. Attainder for treason was followed not only by the most savage and brutal corporal penalties and the forfeiture of all possessions, but in addition the corruption of blood passing to all direct descendants, in other words, by the legal death of the family. Before proceeding to an examination of the effects of parliamentary acts of attainder in the late fifteenth and early sixteenth centuries it is necessary first of all to define the scope of forfeiture for treason as it affected landed property. Bracton's classic definition of forfeiture had involved for the traitor ‘the loss of all his goods and the perpetual disinheritance of his heirs, so that they may be admitted neither to the paternal nor to the maternal inheritance’. Feudal opinion had always been very much opposed to the stringency of this conception and the Edwardian statute De Donis Conditionalibus, confirmed implicitly by the treason statute of 1352, had protected entailed estates from the scope of forfeiture, thus leaving only the fee simple and the widow's dower within the scope of the law. The wife's own inheritance or any jointure which had been made for her, because they ante-dated her husband's treason, as distinct from her right to dower which did not, were not liable to ultimate forfeiture—though a married woman could claim them only when ‘her time came according to the common law’, that is after the death of her husband when she ceased to be ‘femme couvert’. This equitable principle was confirmed by a statute of the Merciless Parliament of 1388 which, however, included for the first time the rule that lands held to the use of a traitor were also included in the scope of forfeiture. Thus, by 1388, of the lands held by a traitor (as distinct from the wife's inheritance and jointure), only those held in fee tail fell outside the scope of the treason laws. This loophole was closed by Richard II in 1398 when Parliament declared forfeit entailed estates as well as lands held in fee simple and to the use of a traitor, thus reverting with one exception to Bracton's view of forfeiture.

Buried Narratives: Exhuming the Mother's Story in Oliver Twist

2018 ◽  
Vol 8 (3) ◽  
pp. 247-266
Author(s):  
Michelle L. Wilson
Keyword(s):  
Social Change ◽  
Maternal Inheritance ◽  
The Novel ◽  
Poor Law ◽  
The Family ◽  
The Law ◽  
First Time ◽  
Critical Consideration

Initially, Oliver Twist (1839) might seem representative of the archetypal male social plot, following an orphan and finding him a place by discovering the father and settling the boy within his inheritance. But Agnes Fleming haunts this narrative, undoing its neat, linear transmission. This reconsideration of maternal inheritance and plot in the novel occurs against the backdrop of legal and social change. I extend the critical consideration of the novel's relationship to the New Poor Law by thinking about its reflection on the bastardy clauses. And here, of course, is where the mother enters. Under the bastardy clauses, the responsibility for economic maintenance of bastard children was, for the first time, legally assigned to the mother, relieving the father of any and all obligation. Oliver Twist manages to critique the bastardy clauses for their release of the father, while simultaneously embracing the placement of the mother at the head of the family line. Both Oliver and the novel thus suggest that it is the mother's story that matters, her name through which we find our own. And by containing both plots – that of the father and the mother – Oliver Twist reveals the violence implicit in traditional modes of inheritance in the novel and under the law.

A new chapter in the law of sexual harassment in Malaysia: The emergence of the torts of harassment and sexual harassment

2019 ◽  
Vol 48 (4) ◽  
pp. 191-207
Author(s):  
Abdul Majid ◽  
Sri Yogamalar ◽  
Audrey Kim Lan Siah ◽  
Jane L Y Terpstra-Tong ◽  
Luc Borrowman
Keyword(s):  
Sexual Harassment ◽  
Common Law ◽  
Federal Court ◽  
The World ◽  
The Common ◽  
Per Se ◽  
The Law ◽  
First Time

In a landmark case in 2016, Malaysia’s apex court, the Federal Court, explicitly recognised for the first time, the common law tort of sexual harassment. Actually, the Federal Court did more than that; its recognition of the common law tort of sexual harassment is built on its recognising the common law tort of harassment. The recognition of the tort of harassment has escaped notice because attention has been concentrated on the tort of sexual harassment. This article analyses the Federal Court’s exposition of the tort of sexual harassment to reveal that the exegesis itself acknowledges the existence of the tort of harassment per se. The tort of harassment that the Federal Court sent out into the world is largely a creature of its English common law ancestry.

scholarly journals Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

2018 ◽  
Vol 22 (2) ◽  
pp. 237-265
Author(s):  
Baris Soyer
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Insurance Fraud ◽  
England And Wales ◽  
Insurance Law ◽  
Significant Challenge ◽  
The Common ◽  
Utmost Good Faith ◽  
The Law ◽  
Definition Of

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

scholarly journals A Comparative Study of Absolute Liability Offense in Iran and the UK

2016 ◽  
Vol 12 (3) ◽  
pp. 135
Author(s):  
Seyed Mohammad Mousavi ◽  
Arash Babaei ◽  
Shamsollah Khatami ◽  
Yousef Jafarzadi
Keyword(s):  
Comparative Study ◽  
Criminal Law ◽  
Common Law ◽  
Objective Measure ◽  
Legal Texts ◽  
The Face ◽  
The Common ◽  
The Law ◽  
The Uk ◽  
First Time

<p>One characteristic of the force of law in the country, the integrity of the rules in all areas of all aspects of creation into account the distinction between crime and the crime and failed or incomplete in acts of crime and crime as the withdrawal. In this respect the rules on penalties culpability in the crime has been proposed that the content of the crime with absolute responsibility of these categories has manifested. Under the Articles 144 and 145 of the Latest version Islamic criminal law (2013), Create unintentional offenses, subject to verification of the fault committed. In crimes ranging from quasi-intentional unintentional deviation as retaliation book rules apply. Legislator to commit a fault, the reason for the error is considered criminal, which has always been considered an objective measure and a ruler (in Article 145), while the common law under subsection (1) "criminal law to crimes" adopted 1981 crime start as the offense is punishable total. This study showed that certain similarities between the laws. In this context, the two internal laws and the common law can be found, in which the underlying offense of absolute liability is not fixed in the courts. Always treat judges and lawyers in the face of legal texts are not consistent because of the lack of transparency and clarity of the rules. In particular, in the common law, when a crime for the first time in cour t, and a warrant has been issued about it in terms of predicting the law and with regard to the interpretation of judges, procedural difference is more tangible.</p>

The Revolution in Freedoms of Press and Speech

2020 ◽  
Author(s):  
Wendell Bird
Keyword(s):  
First Amendment ◽  
Common Law ◽  
Quarter Century ◽  
Conventional View ◽  
The Press ◽  
History Of ◽  
Narrow Definition ◽  
The Common ◽  
Definition Of ◽  
First Time

This book discusses the revolutionary broadening of concepts of freedoms of press and speech in Great Britain and in America during the quarter century before the First Amendment and Fox’s Libel Act. The conventional view of the history of freedoms of press and speech is that the common law since antiquity defined those freedoms narrowly. In that view, Sir William Blackstone in 1769, and Lord Chief Justice Mansfield in 1770, faithfully summarized that common law in giving very narrow definitions of those freedoms as mere liberty from prior restraint and not as liberty from punishment after printing or speaking (the political crimes of seditious libel and seditious speech). Today, that view continues to be held by neo-Blackstonians, and remains dominant or at least very influential among historians. Neo-Blackstonians claim that the Framers used freedom of press “in a Blackstonian sense to mean a guarantee against previous restraints” with no protection against “subsequent restraints” (punishment) of seditious expression. Neo-Blackstonians further claim that “[n]o other definition of freedom of the press by anyone anywhere in America before 1798” existed. This book, by contrast, concludes that a broad definition and understanding of freedoms of press and speech was the dominant context of the First Amendment and of Fox’s Libel Act. Its basis is hundreds of examples of a broad understanding of freedoms of press and speech, in both Britain and America, in the late eighteenth century. For example, a book published in London in 1760 by a Scottish lawyer, George Wallace, stated that it is tyranny “to restrain the freedom of speculative disquisitions,” and because “men have a right to think for themselves, and to publish their thoughts,” it is “monstrous … under the pretext of the authority of laws, which ought never to have been enacted … attempting to restrain the liberty of the press” (seditious libel law). This book also challenges the conventional view of Blackstone and the neo-Blackstonians. Blackstone and Mansfield did not find any definition in the common law, but instead selected the narrowest definition in popular essays from the prior seventy years. Blackstone misdescribed it as an accepted common law definition, which in fact did not exist, and a year later Mansfield inserted a similar definition into the common law for the first time. Both misdescribed that narrow definition and the unique rules for prosecuting sedition as ancient. They were leading a counter-revolution, cloaked as a summary of a narrow and ancient common law doctrine that was neither.

Blackstone’s and Mansfield’s Narrow Liberties of Press and Speech, and Broad Crimes of Seditious Libel and Seditious Words

2020 ◽  
pp. 19-76
Author(s):  
Wendell Bird
Keyword(s):  
Common Law ◽  
Chief Justice ◽  
Ancient Law ◽  
The Common ◽  
Definition Of ◽  
First Time ◽  
Prior Restraint

The narrow understanding of freedoms of press and speech, adopted by Sir William Blackstone and Lord Chief Justice Mansfield, defined those freedoms as no more than liberty from a government-issued license or other prior restraint, with no liberty from punishment of sentiments once printed or spoken. In doing that, the last volume of Blackstone’s Commentaries in 1769 summarized a narrow common law definition of freedoms of press and speech that did not exist in common law. Mansfield’s decisions introduced a similar definition into the common law for the first time the year after that. Besides describing a new definition as ancient, both Blackstone and Mansfield described the related framework for prosecuting sedition as being ancient and universally accepted, when in fact it was a collection of unique rules adopted and manufactured seventy years before and recently revised. Blackstone and Mansfield were not declaring ancient law but were creating new law.

5. Character evidence

2019 ◽  
pp. 79-106
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Character Evidence ◽  
The Common ◽  
The Law ◽  
The Difference ◽  
Definition Of

This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003. It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained. The chapter concludes with the admissibility of good character evidence, governed by the common law.

5. Character evidence

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Character Evidence ◽  
The Common ◽  
The Law ◽  
The Difference ◽  
Definition Of

This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003. It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained. The chapter concludes with the admissibility of good character evidence, governed by the common law.

23. Cohabitation and Finance

2019 ◽  
pp. 227-236
Author(s):  
Jane Sendall ◽  
Roiya Hodgson
Keyword(s):  
Common Law ◽  
Legal Rights ◽  
Legal Remedies ◽  
The Family ◽  
Cohabiting Couples ◽  
Legal Position ◽  
The Common ◽  
Family Home ◽  
The Law ◽  
Law Commission

Cohabiting couples do not have any intrinsic legal rights by simply cohabiting. The ‘common law wife/husband’ does not exist in law, despite many believing that it does. This chapter discusses the legal position of cohabitants and financial remedies. This includes the Law Commission Proposals in order to try and allow cohabitants to gain some financial relief in certain circumstances. The legal remedies available to separating cohabitants including establishing legal title and a beneficial interest, is outlined. This also includes resulting and constructive trusts. Finally, the position of cohabitants in relation to the family home and Trusts of Land and Appointment of Trustees Act is discussed.

Anger and Fear as Justifiable Preludes for Loss of Self-Control

2010 ◽  
Vol 74 (3) ◽  
pp. 223-241 ◽  
Author(s):  
Susan S. M. Edwards
Keyword(s):  
Battered Women ◽  
Common Law ◽  
Self Control ◽  
Loss Of Self ◽  
The Common ◽  
The Government ◽  
Definition Of ◽  
First Time ◽  
New Criteria ◽  
Law Commission

Following the Coroners and Justice Act 2009, s. 56, the common law defence of provocation, which depended on a sudden and temporary loss of self-control (following R v Duffy1), is now abolished, as is s. 3 of the Homicide Act 1957. In its place is substituted a statutory defence of loss of self-control, which relies on some of the principles that constituted the grounds for provocation, its predecessor. For the first time fear qualifies as a new ground for loss of self-control (2009 Act, s. 55(3)). This article examines the new partial defence of ‘loss of self-control’ and considers what distinguishes the new defence from its predecessor and the features which are retained. It also evaluates whether the overarching objectives of restricting the ambit of the earlier defence and providing a new defence for battered women, shared by both the Law Commission and the government, are well considered and likely to be achievable. The new partial defence will be considerably restricted both by the new criteria and by returning the power to the judge, as ‘gatekeeper’, to prohibit an un***meritorious defence from going to the jury (2009 Act, s. 54(6)). The inclusion of fear as a new ground for loss of self-control will continue to present difficulties as long as the definition of ‘extremely grave’, a requisite of the qualifying trigger to this loss of self-control, is a jury question, and also insofar as ‘justifiable sense of being seriously wronged’ is to be judged on objective grounds. Further difficulties are presented by the requirement that the capacity for self-control, now expressed as the ‘tolerance’ and ‘restraint’, required of the defendant, is to be decided on objective grounds.

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