The object of this paper is to explore how far the necessity for the legal historian's active and contemplative self-consciousness is amplified when the task at hand involves not only the interpretation of historical events but also the interpretation of a threshold for the writing of legal history itself. It argues that the emergence of history as a discipline in the sixteenth and seventeenth centuries highlights the fact that we are occupied in the exploration of the history of ideas about the past held by those who are now the objects of our own enquiry. The paper aims to investigate some of the fundamental historiographical and methodological issues raised by the surfacing of legal history as a branch of learning in the sixteenth and seventeenth centuries. In the first section, it examines the field of English Antiquarianism and its connections with embryonic historical genres and with the legal profession. From this point the paper explores the relationship of legal and historical studies, and the hybrid discipline of legal history. The final section turns to a consideration of prosopographical methodology as an example of a specific technique that may, in the appropriate circumstances, be usefully employed in the study of legal history.

In the setting of military conquest and revolutionary change, and the consequent resolution of legalities, lawmakers will often attempt to articulate very selective distinctions about the past and the present and about continuities and transformations. The idea of the continuation, or conversely the extinguishment, of customary law is of course a concept which has attracted the attention of historians of the common law, and in the context of land law there has been a particular concern in recent years relating to native title claims in 'settled colonies', principally in the United States of America, Australia, Canada and New Zealand. In line with common law methodology, precedents endow this discourse; and the Welsh case which is cited in this context as the exemplar of the survival of indigenous laws in a post-conquest settlement is 'Witrong v Blaney' (1674) 3 Keeble 401 [84 ER 789]. It has been by way of cases like 'Witrong v Blaney' that Sir Edward Coke's analysis of the legalities of conquest informed the Blackstonian declaration of the colonies, establishing the paradigm within which we still largely function.

What are the assumptions which have been made about legal and constitutional systems in Britain based upon the racial composition of the nation(s)? How has race been seen to have organised legal and constitutional forms and thought? Up until comparatively recent times our ideas about racial distribution in Britain have been unequivocally controlled by the evidence available, namely the linguistic division between Celtic and Anglo-Saxon / Germanic languages. The starting position, with which we are all too familiar, can be very simply put: in those areas where English is the historically prevailing language the racial make-up of the populace is of Germanic derivation; and in those areas where Celtic languages prevailed, at least until some considerable time into the second millennium AD, and thereafter continuing to exist as diminishing but still viable tongues (that is, in Scotland and Wales, but possibly also Cornwall, at least to some degree), the essential racial composition is Celtic. Because of the absence of any other widespread evidence-base this reasoning was for many years completely plausible and in fact difficult to dispute. The languages, literally, spoke for themselves as racial markers.

Francis Cohen was born in London in 1788. He was educated at home and was articled as a clerk to a London solicitor's firm in 1803. He remained there, rising to the position of managing clerk, until 1822 when he took chambers in the King's Bench Walk, Temple. In 1827 he was called to the bar at the Middle Temple, and for several years engaged in pedigree cases before the House of Lords. While a solicitor, and then while at the bar, Cohen was interested in literary and antiquarian studies; and around 1814, he began contributing to the 'Quarterly Review' and the 'Edinburgh Review' on such topics. He converted to Anglican Christianity before his marriage to Elizabeth Turner in 1823. Cohen also changed his surname to "Palgrave", close to the time of his marriage. This paper will briefly consider: Palgraves' early antiquarian contributions to the 'Quarterly Review' and the 'Edinburgh Review'; his early work in the public records from 1822 until 1835; his first major historical works, the 'History of the Anglo-Saxons' (1831) and 'The Rise and Progress of the English Commonwealth' (1832); Palgrave's 1838 appointment as the first Deputy Keeper of the reconstituted and reorganised Record Office, and his work in professionalising that organisation; and his principal historical work, 'The History of Normandy and of England' (the earlier volumes were published in 1851 and 1857 respectively, although the last two were not published until after Palgrave's death, which occurred in 1861). The paper will focus on the significance of Palgrave's work in terms of his methods and theories, and how Palgrave's interpretation of early English legal history was a vivid and innovative example of drawing conclusions from the analysis of the development of legal principles - specifically, those relating to the influences of the legal and institutional vestiges of the Roman empire on English law. Palgrave asserted that monarchical authority based on these (Roman) precepts underlined the development of the Germanic kingdoms. His interpretation, it will be argued, exemplified an inventiveness and insightfulness of theory, matched by scrupulous and methodical deployment of the archival evidence to which Palgrave had unprecedented access. In Palgrave we will see the imperial idea of "authority", before it was eclipsed by the ideas of the Germanist school, led by John Mitchell Kemble and advanced by F.W. Maitland and many others. The implications of Palgrave's work have long been underrated, so it is the purpose of this paper to adjust that underestimation.

Referring to the genres of writing which make up the title of this chapter, W. K. Ferguson (in his 1948 monograph 'The Renaissance in Historical Thought') irreverently avowed "what is mirrored in the writings we have studied, though often seen darkly as in a glass", almost as though there was no (other) reality but the reflection itself. This wistful comment was, of course, an intellectual provocation. Ferguson's real point was to emphasise what he saw as a precept of history and historical writing: that the past is made up of events; events which are capable of being given meaning and construction by their observers in an active sense. His line of reasoning was that, while accepting the limitations of individual bias, and the influences of scholarly tradition, it is still incumbent upon the historian to give some meaning to recorded phenomena. Ferguson held that to interpret the past adequately, one must consciously attempt to recognise one's own perspective, and how that viewpoint relates to its intellectual heritage. With just such a frame of reference, the aim of this chapter is to explore how far the necessity for this kind of active and contemplative self-consciousness is amplified when the task at hand involves not only the interpretation of historical events but also the interpretation of a threshold for the writing of legal history itself.

Francis Cohen was born in London in 1788. He was educated at home and was articled as a clerk to a London solicitor's firm in 1803. He remained there, rising to the position of managing clerk, until 1822 when he took chambers in the King's Bench Walk, Temple. In 1827 he was called to the bar at the Middle Temple, and for several years engaged in pedigree cases before the House of Lords. While a solicitor, and then while at the bar, Cohen was interested in literary and antiquarian studies; and around 1814, he began contributing to the 'Quarterly Review' and the 'Edinburgh Review' on such topics. He converted to Anglican Christianity before his marriage to Elizabeth Turner in 1823. Cohen also changed his surname to "Palgrave", close to the time of his marriage. This paper will consider the connections made between legal history and: natural theology, in Palgrave's 'Truth and Fictions of the Middle Ages: the Merchant and the Friar' (1837); and, natural science and empirical methods, in his correspondence with the Royal Society of London in 1835 and 1840, and with the Statistical Society of London in 1836, 1843 and 1859. The paper will focus on the significance of Palgrave's work in terms of his interest in science, in particular the compilation and analysis of statistical data, evidencing his empirical, innovative approach and concern for a model of progress as a way of describing an historical process or sequence, although not necessarily in a determined or teleological sense.

This article aims to investigate some of the fundamental historiographical and methodological issues raised by the emergence of legal history as a branch of learning in the sixteenth and seventeenth centuries. It does so by contextualising the Elizabethan Society of Antiquaries and by deploying a prosopographical method to evaluate its connections with embryonic genres of historical writing and with the legal profession. It concludes by emphasising the need to distinguish the legal and historical concerns which underpinned the Society in the early modern period, and argues that the emergence of the Society constituted a significant stage in the formation of legal history as a discipline with certain distinctive methodological attributes.