Saturday 30 May 2020

English Arbitration and Mediation in the Long Eighteenth Century (History of Arbitration and Mediation)

by Derek Roebuck, Francis Calvert Boorman and Rhiannon Markless

Publisher: HOLO Books, The Arbitration Press (2019)

I haven't written a blog for over 2 years, primarily because I was involved in writing this book with Derek and Francis. Sadly, on 27th April this year Derek passed away.

Derek and his wife Susanna Hoe became aware of my interest in the eighteenth-century legal system through my blogs and earlier PhD thesis and book: Gender, Crime and Discretion in Yorkshire, 1735-1775: Decision-Making and the Criminal Justice System. They asked if I would be interested in working with Derek on this project and during the course of the following two years Derek, Susanna, Francis and I became friends: it was a pleasure working and dining with them.

I don't class myself as a writer and get far more pleasure from the research. Therefore, Derek and I came to an arrangement whereby I would primarily undertake research of the legal records and he would turn my work into coherent text. Even when I did turn my hand to writing a couple of chapters Derek continued to turn my work into coherent text! 
This book is the last in a series of books written by Derek that takes the history of arbitration back to Ancient Greece.

The most important finding in this current work is that arbitration and mediation remained widespread throughout the period surveyed. Nevertheless, legal historians have scarcely noticed the large body of routine work by which the courts and others then supported and exploited arbitration. If they knew of its existence, little more than a mention was usually considered enough. 

Abstract: Our Early Modern period runs from 1700 to 1815. England was never at peace. The Act of Settlement 1701, whatever it did for the Constitution, did not end the fighting between English and Scots. Bonnie Prince Charlie was not seen off until Culloden in 1748. George Washington became president of a new country in 1789, the year of the French Revolution. Britain was intermittently at war with France or Spain. Yet the primary sources show that parties with disputes got on with their resolution in the same old ways, by arbitration and mediation. After an introduction, describing the social, economic, political and legal background, the individual documents which make up the primary sources are each examined, including court records, law reports, newspapers and memoirs. The practices of mediation and arbitration across various sectors of eighteenth-century England are explored. First the services offered by the State, primarily by Justices of the Peace but also by all the courts. Then the bulk of the work is devoted to private arbitration and mediation, including extensive sections on Commerce, Labour Relations, the London Theatre, Families and Property, Architects and Engineers, Sport and Betting, with an extended section devoted to the work of women. The lives of individuals in all strata of English society are revealed. Finally, a long chapter describes what has been called legalisation and professionalisation, showing the increasing involvement of lawyers.

Derek was already unwell by the time of our book launch at the Institute of Advanced Legal Studies in November 2019. He will be sorely missed by family, friends and colleagues.

I leave reviews of the book to others:

Karyl Nairn in THE RECORD of the Assocition of the Bar of the City of New York (Spring 2020 - vol 13 no 1. 71)

Bruno Loynes de Fumichon in Revue de l'Arbitrage (2019 - No 4 October-December) 

Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator:

Saturday 17 March 2018

Susanna Hoe and Derek Roebuck (2018) Women in Disputes: A History of European Women in Mediation and Arbitration, Oxford: HOLO Books.

In 2017 I was fortunate to meet and work with wife and husband team Susanna Hoe and Derek Roebuck. Susanna is an established writer in the field of women’s history and Derek is a practitioner and writer in the field of mediation and arbitration. In 1999 they established HOLO Books. Its two imprints - The Women's History Press and The Arbitration Press - reflect their interests and enthusiasm to publish scholarly books accessible to the general reader which may not appear commercial to mainstream publishers.

This latest publication from HOLO is an ambitious study of the history of women in disputes, both as active mediators and arbitrators as well as the recipients of awards determined by men. The material examined stretches across four thousand years of European history, from Biblical times to the end of the eighteenth century, while the final two chapters include sections on arbitration in the early American colonies settled by the English. I am a researcher rather than a writer and for that reason I am flattered that the authors have been able to include material I located in The National Archives and Surrey History Centre but would otherwise have gathered dust in my virtual archive.

This is an extensive study, underpinned by a desire of the authors to encourage a better understanding and recognition of the roles that women have played as peaceweavers.


·         The Ancient World:
·         Anglo-Saxon England:
·         Peaceweavers: European Rulers and Consorts:
·         European and Civil Wars 1337-1471:
·         Titled Women on Medieval England:
·         Untitled Women on Medieval England
·         Women in Fifteenth-Century Malta:
·         The Age of Elizabeth:
·         Elizabeth to Anne:
·         The Eighteenth Century:
·         Lady Anne Clifford: The Woman Who Wouldn’t:

Publisher’s Abstract:

From Homer to Jane Austen, storytellers have entertained their audiences with tales of women in disputes, as parties and peacemakers. This is our attempt to write their history, relying as far as possible on primary sources, documents which have survived by chance, never intended for our eyes by those who created and preserved them.

In 534AD, the Roman emperor Justinian expressly forbade women to act as arbitrators. In the thirteenth century Saint Thomas Aquinas stated that 'woman is naturally subject to man, because in man the discretion of reason predominates'.

Many have assumed that what was laid down as law or proclaimed as authority represented the reality. But women do not always do what men tell them they should. We have set out to find what has happened in practice over four thousand years, at least in Europe, beginning in the Bible and Ancient Greece and Rome, but thereafter concentrating on England, with regular references to the Continent.

A chapter on Anglo-Saxon England shows the inextricable ties with the Continent among women of the highest rank, as do two of the four that follow on the Middle Ages. Those women often mediated and arbitrated, but they also resolved disputes by a number of other ways. Then we show how common it was for titled women in England to resolve disputes. A chapter on 'untitled women' provides plenty of evidence of the regular resolution of their disputes. There is a digression then to Malta, to the records of a fifteenth-century notary, which tell the stories of women of every station and their disputes.

England's greatest monarch, Elizabeth I, supported women with free legal aid and her own personal interventions, in ways never since matched. The practice of submitting women's disputes to mediation and arbitration survived through the seventeenth century, despite revolution, regicide, fire and plague. A tailpiece tells how a dispute concerning the will of Temperance Flowerdew, one of the earliest European settlers in the 'New World', was resolved by the English Privy Council. A chapter on the eighteenth century emphasises the English Government's encouragement of mediation and arbitration, ending with how Mary Musgrove's mediation helped to establish the colony of Georgia, and two sections on France, one pre-Revolution, one Revolutionary. They challenge others to explore developments in the North American colonies and France. The Conclusion widens that challenge.

Lady Anne Clifford, a woman of infinite strength of will, has demanded the last word. She simply refused a royal command to submit to an arbitration which would have robbed her of the vast landholdings she held in her own right.

Find Rhiannon Markless at Legal Archive Research

Wednesday 10 January 2018

Book Review: Alison Eatwell (2017) Crime, Clemency and Consequence in Britain 1821-1839: A Slice of Criminal Life, Barnsley, W. Yorkshire: Pen & Sword History.


Alison Eatwell has an easy narrative style which she uses to good effect in this study of early nineteenth-century petitions for clemency, which were laid before the Home Secretary in the hope that a convict might gain a revocation or reduction of his or her sentence. The book offers a snap-shot in time of the many years during which certain convicts were likely to receive the death penalty, be sentenced to transportation to one of the oversees colonies, or serve a term of imprisonment with an additional order of hard labour. In other circumstances transportation was sought as a reduced sentence for a convict who might otherwise have been executed. The records of those appeals provides evidence of the experiences of individual prisoners.

Eatwell makes effective use of the original petitions held by The National Archives in series HO 17 and HO 18 to extract evidence of the daily business and conditions in the London prisons of Millbank and Newgate; on the hulk ships used to alleviate pressure on an overcrowded prison system or hold prisoners awaiting transportation; and in the penal colonies in New South Wales and Van Diemen’s Land. The author similarly uses case studies to examine some of the offences typically represented in the records, namely: bigamy, forgery, assault with a deadly weapon, murder and offences of a sexual nature.

Petitions were submitted to the Home Officer by convicts, their friends, relatives and other associates with the intention of establishing a convict’s good character and proving him or her worthy of mercy. As such, the documents often include details of a prisoner’s personal circumstances and family background. Eastwell does not ignore the self-serving nature of a convict’s appeal for mercy, or the fact that the records are at best a highly edited version of events and circumstances. With that in mind, she examines the subjective nature of the appeal process, when the social standing of a petitioner or the extent of local support for a particular convict might influence the response received.

Wednesday 18 October 2017

Book Review: Gill Rossini (2017) Same Sex Love: A History and Research Guide, Barnsley: Pen and Sword History

It is 50 years since the Sexual Offences Act 1967 decriminalised homosexual acts between two men over the age of 21 years, in private, in England and Wales. Gill Rossini’s history and research guide to same sex relationships looks back at the cultural, legal and societal restrictions faced by those who dared enter into a lesbian, gay or bisexual relationship.

This history of LGB relationships is divided between three core chapters covering each of the eighteenth and nineteenth centuries and the first half of the twentieth century. At each stage Rossini questions whether it was possible for those attracted to same-sex partners to live their life as they wished to. She has a clear narrative style and it is easy to follow her examination of the relatively laissez-faire attitudes towards sex and relationships in the eighteenth century, contrasted with the increasing use of legislation to control and monitor society during the nineteenth century and reign of Queen Victoria in particular.

The third chapter includes an examination of how life for women changed during the twentieth century as a growing number of organisations campaigned for women’s rights. Rossini considers how the high death toll of young men during the First World War meant that during the inter-war period many single and widowed women found it economically convenient to share a home with another woman, and whether such scenarios benifitted female homosexuals during that period and beyond. In contrast, a growing paranoia towards homosexual men struck Britain and the USA during the 1950’s. Rossini observes how the publicity which surrounded the witch hunt of men such as Alan Turing and the trial of politician Edward Montagu helped raise the level of public pressure for a change in the law to decriminalise homosexuality. The result was the Wolfenden report 1957 which lay the foundations for the 1967 Act of Parliament and beyond.

The book is aimed at family historians and concludes with a useful research guide for genealogists on examining family records for clues as to same-sex relationships and available archival sources.

Saturday 24 September 2016

Book Review: Kate Summerscale, The Wicked Boy (2016) Bloomsbury

Kate Summerscale tells the true-crime story of child murderer Robert Coombes. No author of historical crime-fiction could come up with a more credible storyline of sin and redemption. This morality tale benefits from meticulous research into the crime and its aftermath. In July 1895, ten days after Robert Coombes senior had gone to sea, thirteen-year-old Robert Coombes and his twelve-year-old brother Nattie were arrested for the murder of their mother and sent for trial at the Old Bailey. The criminal trial was fully reported in the newspapers and the story that emerged echoed the plots of the 'penny dreadful' novels favoured by Robert and dealt with evolving theories of criminality, childhood, and insanity. The facts of the case were fairly straight forward as Robert confessed to having stabbed his mother. Although there was an issue of the extent to which the younger brother was his accomplice, Nattie struck a plea and gave evidence against his brother. Robert's lawyers successfully argued that he was insane and he was sentenced to detention in the criminal lunatic asylum at Broadmoor. The seventeen years spent in Broadmoor provided new opportunities for Robert where he trained as a tailor and became a member of the asylum brass band and cricket team. On leaving Broadmoor Robert was discharged into the care of the Salvation Army colony in Essex and from there he left England to join his brother in Australia. In addition to her detailed research, Summerscale creates atmospheric context around each setting of Robert's life, from the crime in the East End docklands; the police investigation and criminal trial; confinement in an asylum; distinguished service in the Australian army during the Gallipoli campaign; and life in 1920's and 30's Australia where Robert undertook the care of a troubled young man, saving him from a similar fate. Robert Coombes died in 1945.

Buy it now from The National Archives on-line bookshop:

Tuesday 21 June 2016

Snail Water - and why.

Dorothea Repp's 1703 recipe would delight any horrid little schoolboy.

Snayle Water
 Take a peck of Garden Snayles in the Shell, wash them well in Beer and take away their froth, put them in a sieve that the Beer may run away from them, heat your Oven hot enough to Kill them and put them in, let them lye ‘till Dead, then take them out pick them, wipe them cleane with a Cloath, stamp them to pieces shells and all, then take a quart of Earth worms, slitt them thro the middle and strowe some salt on them to take away the Blood, then wash them in fair water, stamp them to pieces, set the Lymbeck and in Two Handfull of Angelico as much as Salendine, Baresfoot, Bettony, Woodsorrell, Egrimony. Each 2 Handfulls. 2 quarts of Rosemary flowers, and the Inward rinde of the Barbery Tree and Red Dock Roots the pith cast away, 2 handfulls of Each of them, one handful of Horse Raddish, the pith cast away, one Handfull of Rue, one ounce of Tamarick  one ounce of Fenigrick beaten small, one ounce of Cloves Beaten, then put in ye Snayles and wormes, and the spirits with one drham of Saffron, & 6 ounces of Harts Horne, upon ye Herbs & Wormes then poure on a Gallon and a half of strong Ale and as much spirits of wine, stop up the Lymbeck and let it stand alnight then put the fire under and Reserve ye Water.

The Virtues of it Are

It Revives the Spirits and digest anything that is troublesome to the stomach ‘tis good for gripes in the gutt, or any distemper Occasioned by winde, Tis good against Consumptions and Jaundices
You may sweeten it with syrup of Jully flowers or white sugar Candie, a spoonful or two at most is sufficient at one Time.

How beneficial are these ingredients?

For centuries snails, and to a lesser extent slugs, have been used both as a food and as a treatment for a variety of medical conditions. Hippocrates reportedly recommended the use of crushed snails to relieve inflamed skin.

Accounts dating back to 1340 record the earthworm’s association with medicine, particularly in the treatment of fevers.

Infusions of the Angelica plant are used today in the treatment of sore throats, stomach aches and as a sedative.

Salendine (Celandine) the whole plant is toxic but in small doses the fresh herb has a mild analgesic effects and continues to be used by modern herbalists in the treatment of the liver and gall bladder.

In modern herbal medicine, the root of the baresfoot plant is used for its anti-inflamatory benefits in treating a range of stomach problems, including acid reflux, indigestion and ailments of the liver and prostrate.

Bettony was a common ingredient in the treatment of arthritis and gout. 17th-century herbalist/scientist Nicholas Culpepper (1616-1654) stated that, " preserves the liver and bodies of men from the danger of epidemical diseases, and from witchcraft also". The herb is still used by herbalists in the treatment of gallstones, heartburn and high blood pressure.

The leaves of the wood sorrel are used by modern herbalists in the treatment of stomach conditions and to treat fevers. Externally, the leaves are applied to boils and abscesses.

The barberry tree (berberis-the European Barberry). The berries of this plant have been used in the treatment of urinary and digestive tracts and more commonly by modern herbalists in the treatment of kidney pain and kidney stones.

Egrimony (agrimony) the dried leaves of this plant are commonly made into a tea for the treatment of diarrhoea or to soothe sore throats and coughs.

Rosemary flowers have a mild flavour, which may help to mask to flavour of some of the other ingredients and make the ‘medicine’ more palatable.

Red dock roots – most commonly used by herbalists for the treatment of ulcers and sores.

Horse radish has antibiotic properties and has long been considered a powerfully effective diuretic, used by herbalists to treat kidney stones and similar conditions.
Rue Culpepper recommends it for sciatica and pains in the joints, others for the treatment of flatulence and as a purgative. 

Tamarick (turmeric) is related to the ginger plant and used by herbalists to treat digestive problems, throat infections,  colds, liver ailments and  to cleanse wounds on the skin

Fenigrick (fenugreek) modern-day supplements of fenugreek are used to treat a wide range of conditions from mouth ulcers to stomach pains and beriberi (caused by vitamin deficiency).

Cloves are commonly used by herbalists for their antioxidant, anti-septic, local anesthetic, anti-inflammatory, and anti-flatulent properties. I remember being given oil of cloves as a child to treat the symptoms of toothache.

As far back as Galen and Hippocrates, saffron was mentioned as a medical treatment for coughs, colds, stomach ailments, insomnia, uterine bleeding, scarlet fever, heart trouble, and flatulence.

Harts Horne - an oil derived from the distillation of deer bones or horns and used to treat diarrhoea.

Lymbeck – a limbeck was a distilling vessel used to refine medicines or conserves.

Jully flowers remain a mystery to me, unless it relates to flowers in bloom during this month. 
The Scottish Ballard ‘The Gardener’ includes the following verse:
Then up comes the gardener-lad
And he gave me profers free,
He gave to me the jully-flowers,
To clothe my gay bodie.

The English and Scottish Popular Ballads, Volume 5 by Francis James Child includes this ballad found in ‘Five Excellent New Songs’. Edinburgh 1766 (held at the British Museum)

So not all Dorothea Repps ideas were unfounded and, indeed, many of the ingredients are still used by herbalists today. I, however, am merely reporting on what I have found and do not recommend that the recipe is followed in whole or in part. 

Dorothea Repps’ manuscript (1703) can be found at the Wellcome  Library -

Other sources used in identifying modern uses of herbal remedies:
Shakespeare's Medical Language: A Dictionary: Sujata Lyengar
J. W. Reynolds and W. M. Reynolds, “Earthworms in medicine,” American Journal of Nursing, vol. 72, no. 7, p. 1273, 1972.
J. Stevenson, Oligochaeta, Claredon Press, Oxford, UK, 1930. 

Friday 27 May 2016

A walk through the ages along the Forge Valley and River Derwent.

The Forge Valley is a dramatic gorge created during the ice age. Human settlement in the area of our walk takes the form of the twin villages of East and West Ayton, joined by an old bridge spanning the River Derwent. In 1872 a railway line was proposed to run from Scarborough to Pickering via Forge Valley to meet the Whitby line at Scalby. However, when it came to the planning stage it was found to run through Lord Londesborough's lands and after objections from his Lordship the railway line was not built. Nevertheless, at the same time the North Eastern Railway applied for powers to construct the line between Pickering and Scarborough, avoiding Lord Londesborough’s lands.

Steam train at Goatherd (fictional Aidensfield in t.v.'s Heartbeat) on the Forge Valley railway line between Pickering and Scarborough.

The two villages lie to the west of Scarborough on the busy A170. The Norman church of St John the Baptist in East Ayton was founded by the de Aiton family around 1150, the same family who built and lived in Ayton Castle from 1120 to 1359. After the de Aitons the castle became the stronghold of the Eures family but now only the shell of the main tower remains.

Ayton Castle

With the aid of the ‘No Through Road: The AA Book of Country Walks’ (1976) we began our walk in West Ayton taking a 4.5 mile route along the banks of the River Derwent. Using an out of date map always adds an edge to our walks when instructions based on landmarks have changed over the intervening 40 years. 

We parked near the bridge at the edge of West Ayton and took a right turn onto a road which leads on to a lane leading to Ayton Castle. During the 16th century it was the home of Sir Ralph Eure who, as constable of Scarborough Castle, defended it against insurgents during the Pilgrimage of Grace of 1536.   

This popular uprising in the north of England was the result of Henry VIII’s harsh policies, in particular the suppression of the monasteries. The uprising began in Lincolnshire and spread to Yorkshire, where it was led by Robert Aske, a country squire and lawyer, who called his followers ‘pilgrims’. Even though the rebels were able to summon 30,000 armed men to face the king’s forces, Robert Aske met with the Duke of Norfolk and negotiated a free-pardon for his men if they disbanded. However, Henry revoked the pardon and Robert Aske was executed with more than 200 other rebels.   


Scarborough castle from Scalby

From Ayton castle we followed the track descending down to the riverside and followed a very well maintained path along the valley for 1 mile. Our guidebook informed us that the River Derwent is a noted fishing river and contains trout, black lampreys, crayfish and eels. On the day that we were there in May we were fortunate to see lots of beautiful butterflies.

 After 1 mile we crossed a footbridge to the car park opposite. It is thought that the name of the Forge Valley takes its name from an  eighteenth- century forge which was located at this point. We turned left out of the car park and followed the road, bearing right at a fork in the road onto a forest lane. The AA book for 1976 refers to ‘the forest drive’, now there are 3 possible walking routes at this point so we opted for the one to the extreme right. The path climbs up a fairly steep hill and then follows the edge of the valley through woodland.

We walked until we came to some farm buildings which, if we were on the right track, belong to Osborne Lodge. A low mound of earth, known as a ‘Skell Dike’, lies about 400 yards from the farm and is believed to have been a boundary wall dating back to the time of the Angles, which suggests that there has been a farm on that site for about 1,500 years

After the farm we began our descent down an old track which once served Whetsone Quarry. As the name suggests, the quarry once produced sandstone used for knife-sharpening. The track came out onto the main road which brought us back into the village of East Ayton.