Talk title: “Undoubtedly a principle of English criminal law”: The use of precedent in R v Tolson’

Abstract:

The principle in question, as set out by Wills J in R v Tolson in 1889, was that ‘ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent’. The crime of which Martha Tolson was accused was that of bigamy. She had gone through a ceremony of marriage in 1887, believing her first husband to be dead, only for him to reappear later that year. The Court for Crown Cases Reserved quashed her conviction, with the majority of the 14 judges who heard the case holding that an honest and reasonable belief in the death of one’s spouse would be a good defence to a charge of bigamy. Yet this immediately raises the question as to why it took from 1604, when bigamy was first made a criminal offence, to have this point settled. This paper explores how Tolson came before the court, and how the judges invoked certain precedents, distinguished others, and ignored some altogether.   

Bio:

Professor Rebecca Probert FBA, FAcSS, FHistS, is Professor of Law at the University of Exeter. Her research focuses on the law and history of marriage, bigamy, divorce and cohabitation, and she has appeared numerous times on TV and radio, including A House Through Time and Who Do You Think You Are? She is currently completing a history of bigamy from 1604 to the present day.

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