Author Archives: ronaldrichenburg

An Artefact of the Age of Slavery

About 25 years ago, the library of the Foreign and Commonwealth Office 1   was largely disbanded, with the contents being given to suitable U.K. research libraries, including the Bodleian Law Library which received many items of a legal nature.  Many of these works date from the 19th century and relate to foreign countries, with some having been acquired by British officials in those countries.  One such item is The Law of the Territories by Sidney George Fisher, published in Philadelphia in 1859. 2

The book was reasonably important in its day, and is included in the “Legal Classics” section of Hein Online.  There is some evidence that Abraham Lincoln read at least part of it. 3   What is notable about our copy is that the provenance is clearly indicated.  The book was acquired by Charles E.K. Kortright, Her Majesty’s Counsel for Pennsylvania, and was sent to Lord John Russell, the Foreign Secretary.  Kortright wrote a letter to the Foreign Secretary, to accompany the book, and this letter is affixed inside the front cover.  The fact that Kortright saw fit to do this further attests to the importance both of the subject and of this particular book in discussing it.

The letter (in perhaps the worst 19th-century handwriting that I’ve ever seen), together with a transcription, is shown below.

[Text continues below.]

 

The possible extension of slavery into the territories (i.e. those parts of the United States that had not yet become states) became increasingly controversial as the 19th century progressed, and by the 1850s had become the burning issue in American politics.  During the course of the century slavery became much more entrenched in the South as the plantation economy developed, but gradually died out in the North where it had never existed on a large scale.

The 19th century was a time when the United States, by a combination of purchase and conquest, quadrupled its size.  As some territories became states, new ones were acquired and the question of their governance was ever present.  A territory in which slavery was prohibited was more likely to become a state in which slavery was prohibited, with the probable result that the senators and representatives sent to Congress from that state would be much less sympathetic to slavery.  In the southern states this prospect raised great fear that their economy and way of life would be under increasing threat from an increasingly dominant North.

During the first half of the 19th century an approximate balance was maintained, with new states being established as free states or slave states in roughly equal numbers.  Nonetheless, tensions rose as anti-slavery activism increased in the North.  Anti-slavery societies, newspapers, books, pamphlets, and speakers at public meetings received great publicity.  Although they were never fully representative of northern public opinion, they aroused great resentment in the South where slavery was increasingly regarded not merely as a necessary evil (a widely-held view earlier in the century) but as a positive good sanctioned by the Bible.

Greater tension increasingly led to violence.  There were, for example, many instances in the North of forcible resistance to the Fugitive Slave Act of 1850 4  (part of a major legislative compromise of that year) which required local officials and even ordinary citizens to assist in capturing escaped slaves and returning them to slavery.  But the most sustained violence occurred in the newly created Kansas Territory where, over several years beginning in 1854, a series of violent confrontations between pro-slavery and anti-slavery settlers rapidly gave rise to the term “Bleeding Kansas”.  In 1859, in Virginia, a group of about 20 individuals, both black and white, led by the white abolitionist John Brown (a veteran of the fighting in Kansas), captured a federal arsenal in the hope of using the weapons that they seized to start a general slave revolt that would eventually spread throughout the South.  Brown’s plan had never been likely to succeed, and he was quickly captured and executed.  But in the South, the ever-present fear of slave rebellions was greatly magnified by the possibility that future insurrections of this nature might succeed, particularly where many people in the North had come to regard Brown as a martyr.

The controversy also found its way to the courts where in 1857 the U.S. Supreme Court gave its judgment in the case of Dred Scott v. Sandford. 5   The Court ruled that Dred Scott, a slave, did not become a free person simply by having been taken into a free territory.  But the Court then went on to hold that the word “citizens”, as used in the Constitution, was never intended to include black people and that Scott was therefore not entitled to bring suit in federal court at all.  The Court further held that the prohibition by Congress of slavery in some of the territories (unchallenged for 70 years) was unconstitutional on the ground that slaves were property and that Congress had no authority to prevent a citizen from bringing his personal property into a territory.  The decision was immediately acclaimed in the slave-holding states, condemned almost everywhere else, and has long been regarded as one of the worst decisions in the history of American law.

Against this background, The Law of the Territories was published in 1859.  Its focus is on preserving the Union (i.e. the United States, seen as a union of states), with slavery treated as a subordinate consideration.  The abolitionist movement in the North and the pro-slavery machinations of politicians in the South are discussed chiefly in relation to their tendency to foster disunion.

Fisher begins by condemning John Brown’s raid and northern support for it, as well as abolitionist activism more generally, 6 which, he thought, could lead the slaves to believe that future revolts might succeed, creating a climate of fear and distrust that would threaten the prosperity not only of the South but of the North as well, given the commercial and other ties between the two parts of the country. 7   He described slavery, as it existed in the South, as generally beneficial to the slaves who in his view were of limited intellectual ability and were incapable of looking after themselves.  He goes on to say that it is essential that the slaves must never come to believe that they were wrongfully enslaved and that emancipation was even a possibility. 8

Greater condemnation, however, is directed at southern politicians who, it is alleged, had abandoned constitutional principles and were simply putting forward whatever arguments might support the pro-slavery cause even though the arguments being advanced were completely inconsistent with arguments that had previously been advanced. 9   Fisher discusses these inconsistencies in great detail and describes some of the southern arguments as so extreme that they “[seem] to have been purposely intended . . . to make the South and Slavery as odious as possible to the Northern people.” 10

But Fisher did not believe that either the abolitionists or the southern politicians were representative of the majority of people in their respective regions.  Believing that “[t]he fanatics of Slavery and the fanatics of Anti-slavery are beyond the pale of argument”, he hoped for the formation of a “Northern and Southern conservative party” that would find a “solid ground of principle on which both [North and South] can stand”. 11

In his letter to the Foreign Secretary, Kortright described the book as “logically and — for a Northern writer — fairly and impartially written”.  The matter-of-fact tone of this comment is very revealing.  Clearly, Kortright did not regard as particularly unusual or controversial the book’s appalling assumptions of racial inferiority and the supposedly benign nature of slavery.  Equally, he did not regard these assumptions as incompatible with the book’s harsh criticism of the inconsistent and perhaps unprincipled arguments being put forward by many southern politicians.

But Kortright’s letter, like the book itself, was simply a reflection of views that were widely held at the time.  The spectrum of public opinion in the United States in the middle of the 19th century was much wider than many people today realize.

In the South slavery was embraced with varying degrees of enthusiasm, though even those people (and there were many) who did not own slaves were often linked to the slave economy and in any event resented what was perceived as northern interference in southern affairs.

In the North, as the 1850s drew to a close, the greatest concern was preserving the Union.  There was increasing resentment of southern efforts to entrench and extend slavery, and there was increasing awareness of its cruelty, but the strands of public opinion were so numerous and so overlapping that it would be difficult to describe them all.  There were certainly some people in the North who simply wanted to avoid any disruption of commerce and were not concerned about slavery at all.  There were many others who, whether for moral reasons, economic reasons, or political reasons, wanted to prevent the spread of slavery into the territories without interfering with it in the states where it already existed.  Abolitionists, i.e. those favouring the abolition of slavery everywhere, were a distinct minority, though the publicity that they received may have made their numbers seem greater than they actually were.  The status of former slaves and other people of colour was a somewhat separate issue, and even among abolitionists complete equality was advocated by only a few.

Postscript.  Less than two years after the book was published the American Civil War began.  Under the overarching umbrella of preserving the Union, people with vastly different opinions about slavery came together to fight in what has often been described as the bloodiest war in American history, 12 and public opinion then evolved to the point where slavery itself could be abolished 13 and a legal framework for equal rights established 14 (though, sadly, there were significant setbacks in subsequent years and, even now, the quest for equality remains a work in progress).  What is clear, though, is that major changes in society can best be effected when there is a base of support that is as broad as possible.  From a 21st-century perspective, the willingness of so many people to justify or even simply tolerate slavery for such a long period of time perhaps illustrates how difficult it is to rise above the basic assumptions of the age, even when those assumptions involve what is arguably the greatest evil in a nation’s history, 15 with the further thought that we might want to consider whether any of our own assumptions, even on matters of far less consequence than slavery, will draw the condemnation of future generations.

By Ronald Richenburg

 

1.  Sidney George Fisher, The Law of the Territories, Philadelphia: Printed by C. Sherman & Sons, 1859.

2.  Now called the Foreign, Commonwealth and Development Office.

3.  Brian Danoff, “Lincoln and the ‘necessity’ of tolerating slavery before the Civil War”, Review of Politics, Vol. 77, no. 1 (2015), pp. 47-71, at 48-49.

4.  Fugitive Slave Act of 1850, 9 Stat. 462 (repealed 1864).

5.  Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

6.  Fisher, pp. vi-ix.

7.  Fisher, pp. xxi, 43-45.

8.  Fisher, p. xiii.

9.  Fisher, see e.g. p. 39.

10.  Fisher, p. xvi.

11.  Fisher, p. xxiv.

12.  Calculating the number of dead in a war is often difficult and open to disagreement and controversy.  The Civil War is frequently described as the war with the greatest number of American deaths.  But, using the figures that were generally accepted throughout the 20th century, this is true only because the dead on both sides are counted as American.  If the Confederate dead are excluded (and the Confederates were, after all, fighting with the specific aim of not being American) then the number is less than the number of dead in World War II (Civil War (approx.):  360,000 Union;  260,000 Confederate;  620,000 total.  World War II (approx.):  405,000).  However, as a proportion of the U.S. population (31 million in 1860;  132 million in 1940), the Civil War death toll is much higher.  And it is higher still (about 750,000 total) if one accepts a recent estimate based on census records in addition to official death records, though this estimate is still controversial.

13.  The Emancipation Proclamation (Proclamation no. 17, 12 Stat. 1268, Jan. 1, 1863), justified as an exercise of the President’s power as commander-in-chief of the armed forces, freed the slaves in those states and parts of states that were in rebellion against the United States (though, of course, it was only after federal control was restored that their freedom could actually be effected).  The 13th Amendment to the U.S. Constitution (1865) abolished slavery throughout the United States.

14.  The 14th Amendment to the Constitution (1868) guaranteed “due process of law” and “equal protection of the laws”.  The 15th Amendment (1870) specifically guaranteed the right to vote.  Additionally, Congress passed major civil rights legislation in the ten years following the Civil War.  The Civil Rights Act of 1866 (14 Stat. 27, passed by a two-thirds vote, overriding the veto of President Andrew Johnson) was something of a precursor of the 14th Amendment, and sought to protect the freed slaves from repressive laws that had been passed by some of the southern states after they were re-admitted to the Union.  In 1870 and 1871, three further acts were passed after an upsurge in violence and intimidation directed at freed slaves (and others) in the exercise of their voting rights and other civil rights.  These acts, known as the Enforcement Acts (16 Stat. 140 (1870),  16 Stat. 433 (1871),  17 Stat. 13 (1871)), provided federal protection for the targeted groups.  One result was that the Ku Klux Klan, as it then existed, was effectively destroyed (though it was revived in a later generation).  A few years later, the Civil Rights Act of 1875 (18 Stat. 335) was passed, prohibiting discrimination based on race or previous status as a slave in places of public accommodation or entertainment or on public transport.  This was the first federal anti-discrimination law, though in 1883 the Supreme Court declared most of its provisions unconstitutional on the ground that the 14th Amendment operated as a restraint only on state and local governments and that Congress therefore had no authority to prohibit discrimination by private parties (Civil Rights Cases, 109 U.S. 3).  Eighty-one years later, many of the key provisions of the 1875 act were included in the Civil Rights Act of 1964 (Pub. L. No. 88-352, codified as amended at 42 U.S.C.  s. 2000a et seq.) which became and remains the cornerstone of American anti-discrimination law.  Its constitutionality was unanimously upheld by the Supreme Court as an exercise of the federal power to regulate interstate commerce, though at least two of the justices would have considered it to fall under the auspices of the 14th Amendment as well (Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)).

15.  The author of this post, though long resident in the U.K., is an American and writes from that perspective.

Oxford Open Doors, 7 and 8 September 2018

The Bodleian Law Library is participating in Oxford “Open Doors” on Friday and Saturday, 7 – 8 September 2018.  (Open Doors is organized by Oxford Preservation Trust, and events continue on Sunday though the Law Library will not be open on that day.)  The purpose of the weekend is to enable a wider public to see interesting and important buildings, including many that are not normally open to visitors, and to learn about the activities that take place inside them.

Most readers of this blog will be aware that we are the largest law library in the United Kingdom, but some may not realize that the St. Cross Building is a landmark in the development of modern architecture in Oxford and is now listed at Grade II*.  The building was designed by Leslie Martin and Colin St. John Wilson and completed in 1964, with recent alterations by the London-based architectural practice Pringle Richards Sharratt.  We intend to show the building as a work of architecture and as a functioning library, and we hope that visitors will be able to see the relationship between these two aspects.

There will be, as usual, a small exhibition on the design and construction of the building.  Additionally, in keeping with this year’s Open Doors theme of “extraordinary people”, there will be two further exhibitions:  one on pioneering Oxford women in the law; and another, drawing heavily on the Official Papers collection, on the campaign for women’s suffrage and its eventual success.  For the benefit of our readers, the exhibitions will remain in place until the middle of next week.

Tours of the Law Library are now fully booked, but many other buildings and institutions are participating, and most do not require advance booking.  All venues are listed in the Open Doors booklet.  Copies are available (while supplies last) at the main enquiry desk in the library, and there is a reference copy in the casual seating area near the display of new journals.  The booklet can also be obtained from the Oxford Information Centre on Broad Street, and it can be downloaded from the Oxford Preservation Trust website:
www.oxfordpreservation.org.uk

By Ronald Richenburg

Benjamin’s Sale of Goods: the strange history of a famous book

As many readers will know, the new (10th) edition of Benjamin’s Sale of Goods was published at the end of last year and is available in the Law Library’s reserve collection and can also be found on Westlaw.  What is less well known is the interesting history of the book and of its original author.  This book, long a classic in English law, was written by an American.  And not just any American:  Judah Benjamin was a Confederate!

This fact immediately caught my attention as I am myself an American and a Yankee (i.e.  someone from the North) as well.  Benjamin may be describable (on this side of the Atlantic) as a Yank, but he definitely was not a Yankee!

And here, an historical note might be useful for any readers who are unfamiliar with the nature of the American Civil War.  The Civil War (1861-1865) was an unsuccessful war of independence on the part of most of the southern states, which tried to secede from the United States to form a new country called the Confederate States of America.  This was to be a country in which, most significantly, the existence of slavery would not be threatened.  Over the years, some writers have attributed the war to other issues, particularly economic ones.  There undoubtedly were other issues, but my own view has always been that slavery lay at the heart of most if not all of them.  For several years, the de facto central government of the southern states was the Confederate government, and Judah Benjamin held some of its highest offices, serving first as Attorney General, then as Secretary of War, and then as Secretary of State.

Judah Philip Benjamin (1811-1884) was born on the island of St. Croix, now part of the U.S. Virgin Islands but under British rule at the time, an accident of birth that, together with the British nationality of his parents, enabled him later in life to be recognized as a British subject.  His parents, who were Sephardic Jews, emigrated to the United States when he was a young child, and he began his career in New Orleans, attaining success both in business and as a young lawyer.  While still in his twenties he was co-editor of A Digest of Reported Decisions of the Superior Court of the Late Territory of Orleans and the Supreme Court of Louisiana, a comprehensive work that was immediately successful and that demonstrated his knowledge of the civil law sources of much of the law of the state of Louisiana.

In the early 1840s, he was elected to the state legislature, and ten years later to the United States Senate as one of the two senators from Louisiana.  For several years he was also co-owner of a large sugar cane plantation, and thus a large-scale slave owner as well.  In the Senate he became a leading spokesman for southern interests, and when Louisiana voted to secede from the United States he resigned and returned to New Orleans, soon taking up his appointment in the nascent Confederate government.

When the war started, the South had a degree of military success for a year or so, but its position then deteriorated and the Confederate government disintegrated altogether in the spring of 1865.  Most of the Confederate cabinet members were captured, but Benjamin, sometimes in disguise, sometimes alone and sometimes on unseaworthy ships, managed, sometimes only narrowly, to evade Union (i.e. federal) forces and, via Florida, the Bahamas, the Virgin Islands and Cuba, to make his way to England.  (The adventures of Charles II after the Battle of Worcester come immediately to mind — all that’s missing is the oak tree!)

Within months of arriving in England, Benjamin enrolled as a student at Lincoln’s Inn and also became a pupil of the well-known barrister Charles Edward Pollock (part of a prominent family that produced many distinguished lawyers including the famous legal scholar Sir Frederick Pollock).  He was excused from the usual formality of “keeping terms” (at Lincoln’s Inn) for three years, and was called to the bar in June 1866.  Business was slow at first but his free time was put to good use, and in 1868 his book, A Treatise on the Law of Sale of Property, With References to the American Decisions and to the French Code and Civil Law, was published by Henry Sweet (later to be part of Sweet & Maxwell).  Like the digest of Louisiana decisions early in his career, the book was an immediate success.  His legal practice then flourished and he soon became one of the most successful barristers in England.  He dealt chiefly with commercial matters at the appellate level where his detailed knowledge of civil law principles and of international law set him apart from his contemporaries, though he had a thorough knowledge of English law as well.

Because of increasing ill health he retired at the end of 1882, and in June of the following year was given the unprecedented honour of a farewell banquet in the hall of the Inner Temple.  This was attended by about 200 people, among whom were almost all of the senior members of the English legal profession.  In retirement he joined his wife and daughter in Paris where they had been living for some time.  He died there in May 1884 and was buried in Père Lachaise Cemetery (where he has never attracted anywhere near as many visitors as fellow residents Oscar Wilde and Jim Morrison!).

But his book (which had come to be known simply as Benjamin on Sale) lived on.  He produced a second edition in 1873, and the work was then continued by other authors for a total of eight editions of which the last was published in 1950.  Sweet & Maxwell revived the work in 1974 under the title Benjamin’s Sale of Goods, and it is the 10th edition of this that has just been published.  The legal landscape has changed since 1868, and the new incarnation of Benjamin “drew on the original . . . rather more for inspiration than for substance” (10th ed., p. xiii), but it is easy to see why one would find inspiration in what for generations has been the leading work on the subject.

Much of Benjamin’s life remains a mystery, and his role in American history is far less well known than that of many individuals who were much less important.  He destroyed most of his personal papers and never kept a diary or wrote any memoirs, thus depriving potential biographers of some of the raw materials that would have proved most useful to their task.  Nonetheless, a number of biographies have been written over the years, but Benjamin still never emerged from relative obscurity.

It has been suggested that the reasons for his continuing obscurity also include antisemitism among some conservative elements in the South who (particularly in the past) were reluctant to extend to a Jew the reverence that they felt for the Confederacy.  But, conversely, another reason is that his association with the Confederacy is an embarrassment to liberal American Jews who might otherwise want to celebrate America’s first Jewish senator (not counting a slightly earlier individual who had converted to Christianity).  One of the biographies of Benjamin has the subtitle “The Jewish Confederate”, which is particularly ironic as the exodus from slavery in Egypt (despite some doubt about its historical accuracy) has always been a central part of Jewish tradition and is specifically recalled each year at the Seder (the Passover supper) in Jewish homes.  The irony was recognized even in Benjamin’s lifetime, with one northern  senator referring to him as “an Israelite with Egyptian principles” (quoted by some writers as “an Israelite in Egyptian clothing”).

In very recent years, there have been suggestions that Benjamin was gay, partly because he was so determined not to leave any information about his personal life, and partly because for most of his married life his wife lived in Paris where he visited her once a year if he was able to.  But whatever the truth of this, it seems unlikely that the gay community will embrace him with any more enthusiasm than the Jewish community has shown.

Shakespeare’s Marc Antony said, “The evil that men do lives after them; the good is oft interred with their bones.”  But it seems to be the reverse with Benjamin whose stellar career as a lawyer is remembered (particularly in England) far more than his leading role in the effort to perpetuate slavery.  In a lecture in 2002, Ruth Bader Ginsburg, one of the most liberal justices of the U.S. Supreme Court (and certainly no apologist for slavery), included Benjamin among “four Louisiana giants in the law” (the title of the lecture), stating that he had “captured [her] imagination” and that “[h]e rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished power.”  Perhaps (if I may offer a personal view) Benjamin’s life illustrates the complexity of history where good and evil are often intertwined, with the concommitant thought that it is essential to remember both.

By Ronald Richenburg

Further reading

“Benjamin, Judah Philip”, Oxford Dictionary of National Biography, on-line ed. (last accessed, 6 February 2018).

“Judah P. Benjamin”, Wikipedia (last accessed, 6 February 2018).

[Both DNB and Wikipedia have excellent articles, though each contains at least one minor error.  The Wikipedia article is more comprehensive and alerted me to several of the other sources that I have used.]

“Entertainment to Mr. Benjamin, Q.C., at the Inner Temple Hall”, Law Times, Vol. 75, pp. 188-190 (7 July 1883).  [Available in Bodleian Law Library and on Hein Online.]

Daniel  Brook, “The forgotten Confederate Jew”, Tablet (on-line magazine), 17 July 2012 (http://www.tabletmag.com/jewish-arts-and-culture/books/106227/the-forgotten-confederate-jew).

Lawrence Bush, “The Israelite with Egyptian principles”, Jewish Currents (website/blog), 20 November 2017 (http://jewishcurrents.org/the-israelite-with-egyptian-principles).

Eli N. Evans, Judah P. Benjamin: the Jewish Confederate.  New York: Free Press, 1988.  [Available in Vere Harmsworth Library.]

Ruth Bader Ginsburg, “Four Louisiana giants in the law”, Judge Robert A. Ainsworth Memorial Lecture, Loyola University, New Orleans, 4 February 2002 (https://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_02-04-02).

Robert D. Meade, Judah P. Benjamin: Confederate Statesman.  New York: Oxford University Press, 1943.  [Available in Vere Harmsworth Library.]

Suman Naresh, “Judah Philip Benjamin at the English Bar”, Tulane Law Review, Vol. 70, pp. 2487-2514 (1996).  [Available in Bodleian Law Library and on Hein Online.]

Oxford Open Doors, 8 and 9 September 2017

The Bodleian Law Library is participating in this year’s Oxford “Open Doors” weekend on Friday and Saturday, 8-9 September 2017.  (Open Doors is organized by Oxford Preservation Trust, and events continue on Sunday, though the Law Library will not be open on that day.)  The purpose of the weekend is to enable a wider public to see interesting and important buildings, including many that are not normally open to visitors, and to learn about the activities that take place inside them.

Most readers of this blog will be aware that we are the largest law library in the United Kingdom, but some may not realize that the St. Cross Building is a landmark in the development of modern architecture in Oxford and is now listed at Grade II*.  The building was designed by Leslie Martin and Colin St. John Wilson and completed in 1964, with recent alterations carried out by the London-based architectural practice Pringle Richards Sharratt.  We intend to show the building as a work of architecture and as a functioning library, and we hope that visitors will be able to see the relationship between these two aspects

Tours of the Law Library are now fully booked, but many other buildings and institutions are participating, and most do not require advance booking.  All venues are listed in the Open Doors booklet.  Copies are available (while supplies last) at the main enquiry desk in the library, and there is a reference copy in the casual seating area near the display of new journals.  The booklet can also be obtained from the Oxford Information Centre on Broad Street, and it can be downloaded from the Oxford Preservation Trust website:
www.oxfordpreservation.org.uk
(Click through Menu > Open Doors > Venues & events > Brochure)

By Ronald Richenburg

Oxford Open Doors, 11 and 12 September 2015

The Bodleian Law Library is participating in this year’s Oxford Open Doors weekend on Friday and Saturday, 11-12 September 2015.  The purpose of the event is to enable a wider public to see interesting and important buildings, including many that are not normally open to visitors, and, equally, to learn about the activities that take place in them.

Most readers of this blog will be aware that we are the largest law library in the United Kingdom, but some may not realize that the St Cross Building is a landmark in the development of modern architecture in Oxford and is now listed at Grade II*.  We intend to show the building as a work of architecture and as a functioning library, and we hope that visitors will be able to see the relationship between these two aspects.

Tours of the Law Library are now fully booked, but it is worth noting that Open Doors is a city-wide event and that many other buildings and institutions will also be participating, most of which do not require advance booking and many of which will also be open on Sunday.

Copies of the Open Doors booklet (i.e. the city-wide programme) are available at the main enquiry desk in the Law Library (while supplies last) and can also be downloaded from the Oxford Preservation Trust website, http://www.oxfordopendoors.org.uk .

(Note that on Saturday, 12 September, the Law Library will be open only for the scheduled Open Doors tour and will not be open to readers.)

By Ronald Richenburg

A reasonable man goes to Tate Britain

Several weeks ago in London, en route to Tate Britain (the original Tate Gallery, now with a trendy name), I took the no. 88 bus from Regent Street.  I then noticed that the ultimate destination of the bus was Clapham Common, and it suddenly dawned on me that I had become “the man on the Clapham omnibus”.

As this phrase is well known both to lawyers and to the general public, I decided to look into it further.  It is, of course, a classic description of the “reasonable man” or “ordinary reasonable man” whose conduct can be used as a standard against which the reasonableness of other conduct can be measured.  Yet its origins are not entirely clear.

The first judicial use seems to have been in 1903 in an appellate case in which it was held not to be the correct standard to apply in the circumstances (McQuire v. Western Morning News Co., [1903] 2 K.B. 100 at 109).  In that case, Sir Richard Collins, Master of the Rolls, attributed the phrase to Lord Bowen but did not provide a citation of any kind.  Other sources suggest that Bowen (Charles Synge Christopher Bowen, 1835-94), long before he became a Lord of Appeal, used the phrase (presumably in oral argument) as junior counsel in the sensational Tichborne Claimant Case of the 1870s and 80s.*

Following the McQuire case, the phrase has recurred intermittently down through the years.  Using “man on the Clapham omnibus” as a search term, I found 70 cases in Westlaw UK and 104 journal articles in Lexis Library.  It has to be said, though, that in some of these the tone suggests (if I have read correctly between the lines) that the opportunity has been taken simply to use a quaint phrase from legal folklore.  This supposition is perhaps supported by the fact that the phrase is used (and then only briefly) in fewer than half of the major textbooks on tort law.

Nonetheless, the Clapham omnibus, whether quaint or not, has entered the public consciousness and can be found in numerous places on the internet.  The legal use of the phrase is discussed by Laura Oliver of Hogan Lovells in an excellent article on the Lexology newsfeed service (http://www.lexology.com/library/detail.aspx?g=c100e069-8827-4a3c-b55a-46b120b3710e).  It is also discussed (briefly) in the blog Walking London One Postcode at a Time, after which there is an interesting and perceptive description of the area around each of twelve bus stops used by the no. 88 bus on its journey through Clapham (http://londonpostcodewalks.wordpress.com/2013/07/25/sw4-the-man-on-the-clapham-omnibus).  The writer, identified only as “Stephen”, is apparently a qualified London tourguide, and I strongly recommend his blog to anyone who loves London.  The internet further reveals that there is an arts centre in Clapham called Omnibus (http://www.omnibus-clapham.org).  Interestingly, a number of commentators make the point that, with rising house prices in London, it is increasingly difficult for an ordinary person (reasonable or otherwise) to live in Clapham.

As for me, I hope that I’m a reasonable man;  it appealed to my sense of history to be a passenger on the Clapham omnibus;  and I wonder if there are any other legal metaphors of which one might aspire to be the incarnation.

* The Tichborne Claimant Case, one of the most sensational cases of the Victorian era, involved the claim by an apparent imposter to be the heir to the Tichborne baronetcy.  The claim was rejected and the claimant was later convicted of perjury and sentenced to a total of fourteen years imprisonment (two consecutive seven-year terms).  The civil trial in the Court of Common Pleas (Tichborne v. Lushington, 1872) and the criminal trial in the Court of Queen’s Bench (R. v. Castro, 1874) were among the longest trials up to that time.  Although they do not appear in the standard law reports, numerous books and articles were written about them, of which we have an entire shelf of volumes in the Law Library (KB65.ENG.TIC).  There were other proceedings as well.  Even before the criminal trial ended, the claimant and three of his supporters, two of whom were members of Parliament, were held to have been in contempt of court for coments made at public meetings, which were said to have been prejudicial to the trial (an issue that is still relevant today) (R. v. Castro (Onslow’s and Whalley’s Case; Skipworth’s and the Defendant’s Case) (1873), L.R. 9 Q.B. 219).   After his conviction for perjury, the claimant requested a new trial, largely on obscure procedural grounds, and this was was rejected (R. v. Castro (1874), L.R. 9 Q.B. 350).  In further proceedings several years later, the Court of Appeal and then the House of Lords affirmed the imposition of consecutive (rather than concurrent) terms of imprisonment (another issue of contemporary relevance) (R. v. Castro (1880), 5 Q.B.D. 490;  Castro v. R. (1881), 6 App. Cas. 229).  Many of the most prominent (or later to be prominent) legal figures of the time were involved in these various proceedings, either on the bench or as counsel.  They included (in adition to Charles Bowen) Sir Alexander Cockburn (Lord Chief Justice), Sir John Duke Coleridge (a future Lord Chief Justice), Henry Hawkins, Judah Benjamin, and Hardinge Giffard (the future Earl of Halsbury).

 

By Ronald Richenburg

Oxford Open Doors and other open events

In my two previous posts, I described the Bodleian Law Library’s participation in Oxford Open Doors 2012.  A few further details might be of interest.

Oxford Open Doors is organized by the Oxford Preservation Trust.  It is part of a wider initiative known as Heritage Open Days in which interesting and important buildings in many towns and cities will be open to the public.  The dates that are generally advertised are 5-9 September 2012, though the Law Library will be participating only on 7 and 8 September (pre-booked tours only — see my earlier post for details).  An associated event in London, known as London Open House, will be held on 22-23 September 2012.

Information is available on the following websites:
www.oxfordpreservation.org.uk
www.heritageopendays.org.uk
www.londonopenhouse.org

Bodleian Law Library a modern architectural landmark

Further to my earlier post about the Bodleian Law Library’s participation in “Oxford Open Doors”, and for the benefit of readers whose chief interest is likely to be law, it might be useful to say something about the architectural significance of the building.

The St. Cross Building was designed by Leslie Martin and Colin St. John Wilson (two of the leading architects of the time), and was part of the first wave of overtly Modernist architecture in Oxford.  It was completed in 1964 and is now listed at Grade II *.  Martin had earlier designed the Royal Festival Hall, undoubtedly his most famous work.  Wilson is now best known for a later project, the new British Library building in St. Pancras in London.

The Law Library is characterized by light and spaciousness and, in something of a new departure for Oxford libraries, has almost its entire collection immediately available on open shelves.  The most significant architectural influences were Alvar Aalto, Frank Lloyd Wright and Le Corbusier.

The building has frequently been mentioned in architectural literature.  As might be expected, there are both favourable and unfavourable comments, and there is sometimes a touch of humour as well.  Here are two interesting examples.

Geoffrey Robson, a practicing architect, writing in 1966 (RIBA Journal), states that the “great flight of steps leading . . . , with a positively Aztec feeling of the imminence of human sacrifice, to the entrance to the law library, is a conception which will do much to confirm the incipient lawyer in a belief in his detached and almost godlike qualities.”  (Is it too much to hope that such qualities are also attributable to library staff?!?)  He ends, though, on a more serious note:  “I am certain that it will remain one of the most important buildings of the mid-twentieth century, and one of the most revealing:  a rugged mass full of internal structural tensions; a monolithic form composed of brick, concrete and light alloy; a monument to our desperate desire for permanence and stability.”

The most enthusiastic comment comes from Niklaus Pevsner, writing in 1974 (The Buildings of England):  “The Law Library is the only recent university (as against college) building in Oxford of international calibre . . . . In spite of its relative lowness . . . this is a monumental building.  The approach to the Law Library establishes that at once, a wide, open staircase rising . . . to the entrance platform.  It has the splendour of Persepolis.”

If you are not familiar with the library, come and visit us and see what you think.

Oxford Open Doors 7 and 8 September 2012

The Bodleian Law Library is participating in this year’s Oxford “Open Doors” weekend on Friday and Saturday, 7-8 September 2012.  (The “Open Doors” events continue on Sunday, though the Law Library will not be open on that day.)  The purpose of the weekend is to enable a wider public to see interesting and important buildings, including many that are not normally open to visitors.

We will be conducting tours of the library for which visitors must book in advance, either via the Oxford Preservation Trust booking line (01865 251022) or via the website (www.oxfordopendoors.org.uk/programme-2012).  The Law Library tours are at 3.30 and 5 p.m. on Friday and 11 a.m. on Saturday.  (The Friday times are incorrectly listed in the “Open Doors” brochure but have been corrected on the website.)

Most readers of this blog will be aware that we are the largest law library in the United Kingdom, but some may not realize that the St. Cross Building is a landmark in the development of modern architecture in Oxford and is now listed at Grade II*.  We intend to show the building as a work of architecture and as a functioning library, and we hope that visitors will be able to see the relationship between these two aspects.

United States Code now available on OpenJurist.org

The website Open Jurist (http://openjurist.org), which we have reviewed on past occasions, recently added the United States Code to its collection of core legal materials. The search capabilities are not yet fully operational, but the entire Code has been uploaded and can be browsed. I understand that the Code is shown as at November 2009 and that there are plans to keep it up to date.

Even more recently, the U.S. Constitution and the Declaration of Independence have also been added.  I hope that other historic documents will follow.  (In this regard, it is perhaps worth mentioning that the U.S. Constitution is generally seen as a part of history just as much as a part of law.)

Open Jurist also provides almost all of United States Reports (decisions of the United States Supreme Court) and the greater part of the Federal Reporter (decisions of the United States Courts of Appeals and some of the other lower federal courts).

Some of these materials can be found on other websites, but to me the main attraction of Open Jurist is that the scope of each collection is immediately clear and it is possible to browse in a systematic way.  And of course it is a free resource on the internet.   I look forward to Open Jurist’s further growth.