The Role of Rules: Maxims in Early-modern Common Law Principle and Practice

Keyword(s):  
Author(s):  
Simon Healy

Precedents were frequently invoked in early modern parliaments, particularly by lawyers, whose profession used ‘artificial reason’ to elucidate legal precedents, and who attempted to impose this paradigm upon constitutional debates. If laws and precedents were straightforwardly bastions of the subject’s liberties (as lawyers claimed), then they might have been deployed only in specific contexts. However, many invocations of precedent occurred along the ill-defined borderlands between the common law and the prerogative. This essay considers the role of precedent in four important parliamentary debates of the early Stuart period: over the proposed union of England and Scotland, over impositions, over impeachment, and over the liberty of the subject in relation to the Five Knights’ Case and the Petition of Right. It stresses how ineffectual precedents proved in resolving political disputes, and argues that more pragmatic considerations were paramount.


2020 ◽  
Vol 24 (2) ◽  
pp. 232-250
Author(s):  
Stephanie Dropuljic

This article examines the role of women in raising criminal actions of homicide before the central criminal court, in early modern Scotland. In doing so, it highlights the two main forms of standing women held; pursing an action for homicide alone and as part of a wider group of kin and family. The evidence presented therein challenges our current understanding of the role of women in the pursuit of crime and contributes to an under-researched area of Scots criminal legal history, gender and the law.


POETICA ◽  
2020 ◽  
Vol 50 (3-4) ◽  
pp. 193-218
Author(s):  
Hannah Rieger

Abstract The Middle Low German Beast Epic Reynke de Vos (1498) is about two legal proceedings against the fox Reynke, who is charged by the other animals with the tricks he played on them. When he is sentenced to death, Reynke defends himself by delivering speeches that are constructed as described in ancient rhetoric. Part of those speeches is Reynke’s lie about his treasure, which he would give to the lion if he pardoned him. Reynke describes three pieces of jewellery as part of this made-up possession, one of which is a mirror. When Reynke describes it, he also tells Aesopic fables that are carved into its wooden frame. His fictional artefact, especially the interplay of its specific material and the content of the fables told, has a poetological level. In his description, Reynke hybridizes the political discourse of the early modern period, in which the virtue of prudentia becomes more and more important, with the rhetorical competence to deliver speeches and tell fables. In his fiction of the mirror he draws up a poetological draft that combines the role of a rhetor in court with his well-known properties of being clever and cunning. By describing the artefact, Reynke shows how to use rhetorical strategies, especially to tell fables, as an instrument to gain acceptance and to acquire political influence.


2020 ◽  
pp. 51-78
Author(s):  
Diana Pereira

Over the last decades there was a growing interest in religious materiality, miraculous images, votive practices, and how the faithful engaged with devotional art, as well as a renewed impetus to discuss the long-recognized association between sculpture and touch, after the predominance of the visuality approach. Additionally, the neglected phenomenon of clothing statues has also been increasingly explored. Based on the reading of Santuario Mariano (1707–1723), written by Friar Agostinho de Santa Maria (1642–1728), this paper will closely examine those topics. Besides producing a monumental catalogue of Marian shrines and pilgrimage sites, this source offers a unique insight into the religious experience and the reciprocal relationship between image and devotee in Early Modern Portugal, and is a particularly rich source when describing the believers’ pursuit of physical contact with sculptures. This yearning for proximity is partly explained by the belief in the healing power of Marian sculptures, which in turn seemed to be conveniently transferred to a myriad of objects. When contact with the images themselves was not possible, devotees sought out their clothes, crowns, rosary beads, metric relics, and so forth. Items of clothing such as mantles and veils were particularly used and so it seems obvious they were not mere adornments or donations, but also mediums and extensions of the sculptures’ presence and power. By focusing on the thaumaturgic role of the statues’ clothes and jewels, I will argue how the practice of dressing sculptures was due to much more than stylistic desires or processional needs and draw attention to the many ways believers engaged with religious art in Early Modern Portugal.


Mediaevistik ◽  
2020 ◽  
Vol 32 (1) ◽  
pp. 201-211
Author(s):  
Christoph Galle

<?page nr="201"?>Abstract The question about the role of women within medieval societies associatively makes one think of witches who allegedly were up to mischief by using poison or all kinds of magic to inflict maliciously harm on other people. But this impression results too much from an uncritical reception of such propagandistic conceptions that arose from the later medieval and early modern witch-hunt ideology. This cliché of medieval witches neither does justice to the general situation nor can it be transferred to the entire Middle Ages, as a representative view into the Carolingian empire of the eighth and ninth centuries shows.


Author(s):  
William E. Nelson

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.


Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.


Author(s):  
Laurence Publicover

This chapter analyses the ways in which the collaborative drama The Travels of the Three English Brothers defends the Sherley brothers’ real-world political endeavours across Europe and Persia through its intertheatrical negotiations. Explaining the political background of those endeavours and their controversial nature, it illustrates how the playwrights liken the Sherleys to the heroes of dramas that had been popular on the early modern stage over the preceding twenty years, in particular Tamburlaine and The Merchant of Venice. It also examines the significance of Francis Beaumont’s specific parody, in The Knight of the Burning Pestle, of an episode in Travels in which the Persian Sophy acts as godfather to the child of Robert Sherley. The chapter concludes with a discussion of the role of playing companies in shaping dramatic output.


Author(s):  
Victor Nuovo

The purpose of this book is to present the philosophical thought of John Locke as the work of a Christian virtuoso. In his role as ‘virtuoso’, an experimental natural philosopher of the sort that flourished in England during the seventeenth century, Locke was a proponent of the so-called ‘new philosophy’, a variety of atomism that emerged in early modern Europe. But he was also a practicing Christian, and he professed confidence that the two vocations were not only compatible but mutually sustaining. Locke aspired, without compromising his empirical stance, to unite the two vocations in a single philosophical endeavor with the aim of producing a system of Christian philosophy. Although the birth of the modern secular outlook did not happen smoothly or without many conflicts of belief, Locke, in his role of Christian virtuoso, endeavored to resolve apparent contradictions. Nuovo draws attention to the often-overlooked complexities and diversity of Locke’s thought, and argues that Locke must now be counted among the creators of early modern systems of philosophy.


Author(s):  
Charlotte Scott

Beginning with an exploration of the role of the child in the cultural imagination, Chapter 1 establishes the formative and revealing ways in which societies identify themselves in relation to how they treat their children. Focusing on Shakespeare and the early modern period, Chapter 1 sets out to determine the emotional, symbolic, and political registers through which children are depicted and discussed. Attending to the different life stages and representations of the child on stage, this chapter sets out the terms of the book’s enquiry: what role do children play in Shakespeare’s plays; how do we recognize them as such—age, status, parental dynamic—and what are the effects of their presence? This chapter focuses on how the early moderns understood the child, as a symbolic figure, a life stage, a form of obligation, a profound bond, and an image of servitude.


Sign in / Sign up

Export Citation Format

Share Document