I used the search function on the site to see if I could find a thread dedicated to laws which have had a decisive effect on changing the constitution but I had no luck so am posting here. I came across an account of a murder case from 200 (and a couple of years) ago. Surprisingly, as I had lived in Birmingham for a time in the early 1970s I had not heard of this case before.  In 1817 the body of an unfortunate 20 year old, Mary Ashford, was found in a flooded sandpit in the environs of Erdington (which was then a village outside Birmingham - it's a suburb of the city now of course).  A bricklayer named Abraham Thornton was charged with the murder (he had spent some time in Mary's company before her murder) and tried but was found not guilty.  Public opinion was of the opinion that he WAS in fact guilty.  Of course I don't know either way, but what surprised me was that at that time an archaic law was still on the books by which it was possible to demand a second trial.  Mary's brother did this - then at the second trial Mr Thornton took advantage of another antiquated law and literally threw down the gauntlet and challenged Mr Ashcroft to "trial by battell" (archaic spelling).  Mr Ashcroft didn't accept the challenge to slog it out with Mr Thornton and in due course the bricklayer was discharged.  I'll link to an article I found about the case - sadly, another young lady was found murdered in the 1970s very close to where Mary's body had been found (although by then Erdington had been swallowed by Birmingham the site of Mary's death was in what is now a large park, Pype Hayes Park.  Although it is a sad case to read about what surprised me was that "trial by battell" (another name for trial by combat?) was still legal in the first twenty years of the nineteenth century.  I presume it was this case which caused legal resource to "trial by battell" to be repealed though I haven't been able to find which law repealed it - and I'm not sure when the right to ask for a second trial if a person was found not guilty was repealed either.  I wondered if there had been any other archaic laws which had remained in force and were not repealed until they surprisingly resurfaced in a time when they were no longer applicable really.  I thought of the law (though my understanding is that it is being "fixed") whereby relatively recently people who possibly had nothing to do with the Church of England found themselves being asked to contribute to "chancel repair".  I know that law has been mentioned before on Res Hist though I can't remember the thread on which it was cited.  When I last did some temporary work in a legal office (about 8 years ago) along with the "local search" and "bankruptcy search" (and certain other searches carried out before someone purchases a property) the firm were doing (or more precisely factoring out) chancel repair searches to see if clients were liable for chancel repair.  If they were they would be offered the chance to purchase an insurance policy (it might have been called an indemnity policy) in case they were ever asked to contribute to chancel repairs.  Another law which was repealed relatively recently (though I don't think it dated from  medieval times) was that by which a criminal charge of "seditious libel" could be brought against a party.  Libel is now (in the UK at least) solely a civil tort.  I think that dates from the Defamation Act of 2013 but if anyone is better informed than myself on that matter please feel free to correct me.

Does anyone know of any other occasions when an obscure and out of date law suddenly came into prominence again?

Oh, and despite being found not guilty because of the public opinion on the matter, Mr Thornton found himself persona non grata and moved to the United States of America.  I don't know what happened to him after that.  Anyway, a link to an online article I found concerning the case.  www.slemen.com/erdington.htm

You were in the pub, LiR (virtually, I mean, not literally) and your post deserves a topic of its own, I reckoned. I've taken the liberty of moving it here.

Your opening sentence's use of the word "constitution" is something that one hears quite often within the UK and almost nowhere else, and even in the UK sense it's not really how "constitution" works. Within British law that which is referred to as a "constitution" may adapt itself over time based on new law establishing precedent, or indeed old law being repealed. But reactivation of statute isn't normally a part of that process, however obscure. In theory a law is a law until it is repealed, or until it is tested against the constitution and found not to be in accord with it. In Britain the latter is almost impossible to achieve, whereas the former simply means that a law (that had, by definition, been constitutional simply because it existed, however little used) is either repealed entirely as irrelevant to modern society or replaced with one that better addresses the issue.

But that quibble aside, and especially because of Britain's rather unique attitude to constitutionality, it is certainly true that statute can exist in the UK for years, even centuries, without ever being used, only sometimes to be suddenly resurrected in special circumstances. After WWII, for example, there was a perceived problem with unlicensed fire arms in private ownership with many demobbed soldiers returning to civic life having failed (often through simple oversight in the demob process) to hand in all their weapons. Side arms and pistols were particularly popular "souvenirs", and during the 1950s the problem was seen as simply getting ludicrously big as national service demobs continued through the decade with even more such oversights coming to light.

Mainly through police pressure MPs were lobbied to increase the penalties such souvenir owners could expect, and then after a number of crimes in which ex-army firearms had been used, the police also stepped up detections. An amnesty initiative conducted as part of gun license renewal legislation recovered a fair proportion of these, but as no one really had a clue as to how many fire arms were "out there" the success of these amnesties simply fuelled belief that the problem had been always much greater in fact than everyone had assumed, which in turn led to greater penalties.

In 1958 one arrest led to an interesting legal challenge. A retired army colonel, with the rather dubious name in my view of John Smith, was found to be in possession of his old service revolver and, not having a license for it, was fined. He refused to pay, citing the fact that he had no ammunition and that the revolver was framed and mounted on his wall as evidence that he had no intention of using it as originally designed. When threatened with prison his lawyer upped the ante and based his client's defence on the fact that the 1846 Repeals Act, which had belatedly revoked the 1511 law requiring every male between 17 and 69 to have and practice regularly with a longbow, had not repealed the more ancient 13th century version which did not specify the type of weapon, and instead simply stated that men must be prepared for combat at all times, hold and maintain their weapon, and practice "archery and other skills" in readiness for when or if they were next needed. Smith's case was referred from the Criminal Court right up to the Lords for adjudication, and they decided in his favour, though referred the matter to the Commons for urgent repeal. In 1960 this specific repeal of the statutory precedent was finally passed. Smith, who had been threatened with contempt proceedings for his unusual defence had this charge dropped, but was still found guilty of not having a valid license (he could have made a separate case based on the fire arm's antiquity and that had it had been rendered unshootable anyway but was denied appeal) and paid a few quid in fine. His revolver ended up in the War Museum, and can be seen there to this day with a brief synopsis of the story beside it - I assume as a gentle warning to anyone else who might be sitting on souvenir fire arms, hand grenades, shells and other undeclared weapons from their own or their family's military past.

Henry VIII - who was all for "taking back control", or simply having control over everyone and everything - casts a long, fat shadow. As does Thomas Cromwell. Good article here by Dr Sean Lang:

As the European Union (EU) Withdrawal Bill makes its way through parliament, there has been debate about the government’s use of ‘Henry VIII’ powers. But what are these powers and why are they named after a Tudor king? Dr Sean Lang explains…


https://www.historyextra.com/period/tudor/what-are-henry-viii-powers/

I am frightened about all this, and I wish I understood more of the legal stuff. And what on earth does the average UK voter understand about the implications of Thomas Cromwell's 1539* legislation? Thomas More, if we could forget his religious inclinations and be fair to the man, was a good lawyer and a good Parliamentarian. He must be spinning in his grave.

Amnesty International is worried too:

...while technically primary laws can’t be edited directly, ministers can use their Henry VIII powers to write secondary laws that, in effect, amend or repeal primary ones.

The EU (Withdrawal) Bill gives them those powers to deal with existing UK laws that come from or are related to EU ones – without any sensible limits to protect human rights and equalities.

This could have a huge impact on the UK. As we leave the European Union, new laws will be written to replace EU ones and might be also written to change existing UK laws to fit the post-Brexit legal framework. That could include those laws which currently protect many of our human rights and equality standards.


https://www.amnesty.org.uk/henry-8th-brexit


*‘Henry VIII powers’ allow the government to change an Act of Parliament, or even to repeal it, after it has been passed and without the need to go through parliament a second time. The clauses take their name from the 1539 Statute of Proclamations, which allowed Henry VIII to rule by royal proclamation, ie by decree. Henry VIII powers are intended simply to help government deal with issues that need a quick response, but they are always controversial, and never more so than in this age of Brexit.

Here's a quotation from Otto von Bismark which may, or may not, be relevant to above:



The less people know about how sausages and laws are made, the better they'd sleep at night.



Time to watch the "Yes, Minister!" episode about the Eurosausage again. Remember the days when we could all laugh about such stuff?

Bismark certainly knew all about dodgey sausages. In 1865 when he was repeatedly opposed in the Reichstag by a political rival, Rudolf Virchow, over the government's military budget, Bismark became so angered that he challenged Virchow to a duel. Virchow, having been the one challenged was entitled to choose the manner of the duel and being a medical doctor specialising in pathology, he selecting two pork sausages as the weapons: a normal sausage and another one loaded with Trichinella (parasitic pork round-worm) larva. Bismark decided that he might have bitten off more than he could chew and fearing the wurst, as it were, he declined and so had to withdraw his challenge.

MM wrote:

Bismark decided that he might have bitten off more than he could chew and fearing the wurst, as it were, he declined...

Great story, MM. Is it all true or have you just made it up?

Sorry, we are breaking one of Nord's Laws here (going  badly off topic) but I am sre LiR won't mind.

Are there any obscure sausage laws?

Temperance wrote:

Great story, MM. Is it all true or have you just made it up?

Well that's the version recorded in the scientific literature. A second version of the events has Virchow declining because he considered dueling an uncivilized way to solve a conflict and hence why he made the 'joke' suggestion. But either way it seems the sausage challenge was indeed proposed at the time.

Temperance wrote:

Sorry, we are breaking one of Nord's Laws here (going badly off topic) but I am sure LiR won't mind.

Are there any obscure sausage laws?

Not so obscure and indeed rather current, but under a 2018 French law it is now illegal to refer to meat-free vegetarian sausages, as 'sausages'. Similarly names like soya steak or vegetarian bacon are also banned, though I think more general terms like vegetarian mince (haché) and vegetarian paté are ok. This comes less than a year after the European Court of Justice ruled that dairy-related terms, such as 'milk', 'cream', 'chantilly' and 'cheese', are only allowed to be used on products made with real animal milk: so the terms soya milk, almond milk, vegetarian cheese etc are all banned for being misleading, at least in France. I'm not sure though about traditional French 'fromage de tete', which is basically like English haslet, ie a very meaty paté.

Infamously of course the 'meat' in British sausages can legally include almost any part of the animal, including bits you would never think of as being even remotely edible (don't ask), as well as scraps blasted off the carcass as 'mechanically recovered meat'. Up to 30% rusk, bread-crumb or other starchy filler may be added (if labelled as such) and up to 10% water may also be legally included without being labelled at all.

Have the lawmakers in Strasbourg (or is it Brusssels - I get terribly confused about the difference between the European Parliament, the European Commission, the Council of the European Union and the Council of Europe - who does actually decide anything and where do they do it?) passed any legislation about whether the haggis is a sausage or a pudding?

The House of Lords was seriously concerned about sausage law and the EU. Here is an extract from Hansard:

HANSARD 1803–2005 → 1990s → 1990 → April 1990 → 19 April 1990 → Lords Sitting
EC Legislation: British Sausages
HL Deb 19 April 1990 vol 518 cc106-8 106
3.17 p.m.

Lord Campbell of Croy asked Her Majesty's Government:

Whether recent proposals of the EC Commission would ban in 1993 the British sausage, as composed and prepared at the present.

The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, the Government will oppose any proposals by the Commission which are unnecessary and would serve only to increase costs and reduce consumer choice. The Government will defend the great British sausage, minced meat and burgers to the end.

Lord Campbell of Croy: My Lords, I thank my noble friend for her robust reply. Does she agree that the preparation of this traditional British delicacy is different from practices in other countries but is not a danger to health? Is she aware that she will have the wholehearted support of many Members of this House in her bid to save the British banger?

Baroness Trumpington: My Lords, I thank my noble friend for his remarks. I submit that the UK. without bangers would be like France without champagne.

Noble Lords: Oh!

Baroness Trumpington: Chacun à son goût, my Lords. Separate provision could be made for minced meat which is to be consumed raw. Appropriate labelling to indicate whether products are meant for cooking or consumption in the raw state would inform and protect consumers. There are no hygiene risks from the present British sausage, mince or burgers.

Lord Stoddart of Swindon: My Lords, is the noble Baroness aware that the Franco-German axis in the persons of Messrs. Kohl and Mitterrand is in the process of mixing a black pudding for this country and the EC in the form not only of economic and monetary union but now of political union? Will she ask her right honourable friend the Prime Minister when she attends the Dublin conference next weekend to tell her European partners that we shall not allow any interference with British sausages, nor will we compromise the independence of this nation?

Baroness Trumpington: My Lords, the noble Lord put his question in a rather complicated way. I feel sure that my right honourable friend the Prime Minister will read Hansard, as I am told she always does. As I have said, there are no sound hygiene reasons for these restrictions, particularly when products are meant to be cooked. They would raise costs and reduce consumer choice. The single market is not designed for that kind of measure. Such rules on composition have no place in a measure which is concerned with hygiene and raw meat.
§Lord Mackie of Benshie My Lords, is the Minister aware that the Government may find an ally at long last in Europe in the Germans, in that they have many more sausages of greater complexity than we have? Perhaps the Germans will co-operate with us in this matter.

Baroness Trumpington: Yes and no, my Lords. I believe it is the Irish and the Spanish who have the same kind of composition in some of their sausages as we do.

Lord Monson: My Lords, does the noble Baroness agree that the right response to these proposals is the admirable one suggested by her noble friend Lord Maude of Stratford-upon-Avon in the correspondence columns of the Daily Telegraph on Easter Monday, which cannot be repeated here as the language was somewhat unparliamentary?

Baroness Trumpington: My Lords, I did not read it.

Lord Gallacher: My Lords, I hope that the noble Baroness will take assurance that this side of the House is in total support of the Government's endeavours in this matter. Will she say whether, 108 despite the most valiant endeavours of her colleague the Minister responsible for food in Brussels, if we lose the day to such an extent that we are embarrassed by the Commission's action in this regard, there will be a defence for us in the final analysis in the Cassis de Dijon judgment of the European Court, thus protecting the British sausage?

Quote :

....Cassis de Dijon judgment of the European Court...

Wonder what this judgement was?

PS I did like the "Noble Lords" all exclaiming in unison: "Oh!"

That's absolutely brilliant, Temp! ... But doesn't that extract from Hansard read exactly like a comedy exchange between Sir Humphrey and Jim Hacker? 

Seriously though I doubt whether there's any real need to classify haggis as anything specific, be that as a sausage, a pudding or indeed anything else ... in much the same way that, say, boudin, andouillette, diot or merguez, are rarely referred to as sausages (except in the most general way) but are simply called by their own, unique, names. 

Problems surely only arise when one attempts to sell these products thoughout the European Customs Union area whilst specifically calling them 'sausages'. For example, andouillette is readily available for sale under that name throughout Europe, but then it doesn't claim to be equivalent to a meat sausage. However British sausages do aim to be labelled 'sausages' and want to be marketed as such. But English sausages typically, although not necessarily, (because the name 'sausage' isn't legally controlled) can often contain very little actual meat at all - with lots of added bread, potato, starch and water - and so they are not remotely comparable to any 100% meat-containing French saucisse or German wurst etc. Such legal terms, titles, names and classifications are actually very important: bear in mind, for example, that there is a huge difference, in just French alone, between a saucisse and a saucisson (one is raw/fresh and needs to be cooked, the other is dried/smoked and is intended to be eaten like that - although they both contain just meat and spices, with no cheap fillers or bulking agents).

However I don't think there's anything to stop British 'bangers' being made in Britain just for home consumption: it's simply that they cannot claim to be sausages (except other than as a rather vague colloquial English term) if they ever want to be sold elsewhere. So, just re-label them as 'high-fat emusified meat-slurry offal tubes', and it'll all be fine! 

Except I doubt anyone in Europe would buy them. I for one would feel very cheated if the saucisse I'd bought in the local supermarché turned out to be just an English 'sausage' containing only a third of the meat of a French-made saucisse and bulked out with fat, slaughter house 'off-cuts & discards', bread, cereal rusk, potato starch and with 10% added water. Merci, non!


EDIT & PS .... Temp, did you read the later exchanges in that HoL sausage debate? They make for quite interesting reading... 

(after some comments the Hol discussion continued on from Temp's posting above):

§Baroness Seear: My Lords, given the extreme variation in what passes for a sausage, from something which is almost entirely filled with bread to something which is almost entirely filled with meat, is there such a thing as the British sausage, and if so what is it?  [Well quite, that's my point exactly!] 


§Baroness Trumpington: My Lords, of course there is such a thing as the British sausage. Some people like a sausage with herbs, and the sausage one eats depends on the recipe one favours.

§Lord Mellish: My Lords, the previous Question revealed that the European Commission has still not replied to a letter sent to it by the Government months ago. Nevertheless, the Commission has the temerity to tell us what to do with our own sausage. Would the Minister like to comment on that?

§Baroness Trumpington: No, my Lords, not much. 

§Lord Campbell of Croy: My Lords, is my noble friend aware that the present situation seems to be bringing to life an episode from the television programme "Yes, Minister" in which the British sausage was threatened? Will she comment on rumours of an equally serious threat to the haggis?

§Baroness Trumpington: My Lords, I shall do so with pleasure. The haggis is boiled before sale and is not subject therefore to these proposals. We are equally determined to protect the haggis should the need arise. 

I haven't read all the posts but was taken by the French forbidding the use of 'sausage' for vegetarian rolls. Here just in the past week there has been an online uproar when a pizza chain (Hell's Pizza) provided what was called "Medium rare burger patties". Nothing about there not being meat in them: Hell said they were just providing meat-free burgers to encourage people to try vegetarian options. The people were not amused, feeling the customers had been duped. 
And coeliacs etc might have had an allergic reaction. Others were saying people with bad allergies would check the ingredients, but I wonder if people at fast-food outlets would feel comfortable about doing that, and holding up the queues. But I suppose coeliacs wouldn't be having a patty at all.

I've seen advertisements in UK supermarkets for both 'vegetarian sausages' and 'vegetable rolls', Caro.

Going on to a different law, there is a TV series on BBC at present Catching Britain's Killers; the Crimes that Changed Us.  The first episode was about DNA (which hadn't originally been considered as something to be used in a forensic setting) being used to solve the murder of two teenagers in Leicestershire.  The third one will air next week and will touch on wrongful imprisonment I believe.  The second one was about the changing of the 'double jeopardy' rule.  I believe there are caveats in place so that people can't just be sent back to be retried on a whim.  The programme followed a woman whose daughter had been murdered - someone had been tried and acquitted (I think there was reasonable doubt) but later the accused man admitted to someone that he had indeed committed the murder. He was tried for perjury but only received a sentence of six years in prison.  The mother of the murder victim had campaigned for the law to be changed retrospectively and eventually it was. The law on double jeopardy went back 800 years (said the programme).  Then in my first post under this thread I referred to the Ashton/Thornton case of 'teens' of the 19th century when the brother of the victim demanded a retrial for the accused so there must have been some leeway for a second trial back then.

In UK law double jeopardy has never itself been a "law" as such. It has always been what is technically classified as a "rule". In other words it is more a protocol for interpretation of law than an actual law that could, for example, be cited in a person's defence in a trial situation on the basis that to proceed would therefore actually be illegal in itself. However, in the absence of an actual constitution which enshrines such protocols as a supra-legal code within which all laws must operate and to which they must comply, "rules" like this one become very important - even if they're only long standing conventions they must by necessity be given the same judicial standing as what, in other countries, would almost certainly be covered by clauses within articles within a written constitutional declaration covering personal freedoms and rights etc. A judge, or the DPP, might reject a case on the basis of "double jeopardy", but they can cite no law that directly instructs them to do so. They can however cite a convention based on previous judgements dating back 800 years, and even specific judgements deemed most relevant to a current case. However this precedent can also be discounted just as arbitrarily if deemed necessary by the same people.

In 2003 criminal law was indeed changed and this "open to interpretation" element of applying a "rule" has been replaced with specific law dictating when and in what circumstances the notion of "double jeopardy" does not apply in certain individual cases and when in fact it must be applied in others - in other words the arbitrary element of interpreting the rule has been legally removed from any individual's responsibility when certain criteria defined within the 2003 Act apply (and remember, while this individual may normally be a judge or the DPP the discretion extends also to many others in the system, including Police Commissioners, the HMRC, and even airport security chiefs). This was required when a few high profile cases, including the one you saw mentioned on the BBC programme, showed that some courts' strict adherence to the rule was actually flying in the face of common law interpretations of justice (in non-constitutional UK still the best stab at a general interpretation of justice that exists - any based purely on legal precedent and parliamentary Act is almost unavoidably riddled with contradictions).

However it is important to remember that the "double jeopardy rule" still very much exists even if judges are now more legally constricted in how they interpret it and, in cases where it is logical or legally required to apply it, it works for an individual's basic rights far more often than it might work against justice being seen to be done. Conversely, even after 2003 it is still a rule that can be very much ignored by certain courts in certain types of cases (ask any Irishman living in the UK during the 1970s for some notorious precedents in which it was conveniently ignored), which is how it's always been too, but it is worth stressing in fact that instances on the whole in which it is not applied more often than not also ensure that justice is seen to be done too. It is therefore only very obvious occasional miscarriages of justice that occasionally bring instances to light where either overly strict adherence to the rule or unjustifiably opting not to apply it call the actual legal worth of having it at all into question.

So, it is a case of an "obscure rule coming to prominence again" rather than an "obscure law", but certainly one that any person serious about justice is grateful for when it does come to any prominence, especially if it helps motivate society to steer away from a happenstance-dependent and serendipitous method of accumulating precedent in the hope that what results can be collectively labelled a "constitution". Without wishing to labour the point made by me several times here in the past, one only has to look at very recent events indeed and one such faltering step towards true constitutionality - the invention only as recently as 2009 of a Supreme Court with the authority to adjudicate against arbitrary allusion to convention often by people unqualified to properly arbitrate these matters when determining what is constitutional and what is not - to see where a principal reliance on "rules" alone may indeed work in most cases, but when it doesn't then the effect can be catastrophic, both for particular individuals within the criminal justice system as much as for society as a whole in crucial matters of national policy. Rules are fine, but they're no substitute for well reasoned, well implemented, and well understood law to which all must subscribe without an arbitrary "opt out" when deemed convenient by some.

Apparently someone tried to invoke trial by combat over a fairly insignificant motoring fine in the early 2000s in the UK.  The article I'm linking mentions some use of this type of trial in other countries.  I hadn't heard of the practice (not UK I believe) of husband and wife slugging it out (the man had to stand waist deep in a hole).  I'll provide the link in case anyone wants to read the article but if the link doesn't work properly I can only suggest one types the URL oneself.  https://www.ripleys.com/weird-news/trial-by-combat-2/