From the 1880s, states and self-governing colonies in North and South America, across Australasia, and in southern Africa began introducing laws to regulate the entry of newly defined “undesirable immigrants.” This was a trend that intensified exclusionary powers originally passed in the 1850s to regulate Chinese migration, initially in the context of the gold rushes in California and the self-governing colony of Victoria in Australia. The entry and movement of other populations also began to be regulated toward the end of the century, in particular the increasing number of certain Europeans migrating to the United States. It is perhaps unsurprising, then, that Britain followed this legal trend with the introduction of the 1905 Aliens Act, although it was a latecomer when situated in the global context, and certainly within the context of its own Empire. The Aliens Act was passed in response to the persecution of Eastern European Jews and their forced migration, mainly from the Russian Empire into Britain. It defined for the first time in British law the notion of the “undesirable immigrant,” criteria to exclude would-be immigrants, and exemptions from those exclusions. The Aliens Act has been analyzed by historians and legal scholars as an aspect of the history of British immigration law on the one hand, and of British Jewry and British anti-Semitism on the other. Exclusion based on ethnic and religious grounds has dominated both analyses. Thus, the Act has been framed as the major antecedent to Britain's more substantial and enduring legislative moves in the 1960s to restrict entry, regulate borders, and nominate and identify “undesirable” entrants effectively (if not explicitly) on racial grounds.

James Somerset was taken from Africa as a slave to the Americas in 1749. He was sold in Virginia to Charles Steuart, a Scottish merchant and slave trader in Norfolk who served after 1765 as a high-ranking British customs official. In 1769, Steuart took Somerset with him to England. After two years in England, Somerset escaped from Steuart, but was recaptured. Steuart decided to sell Somerset back into slavery in Jamaica, and, in late November 1771, Somerset was bound in chains on a ship on the Thames, the Ann and Mary, awaiting shipment.

Although it is well known that the criminal law's administration in nineteenth-century England altered decisively, little important change has been noted in the substantive criminal law. Yet change there was, but produced less through legislation (as was much administrative change) or even appeals court rulings than through everyday criminal justice practice. In particular, the effective meanings of legal terms central to the prosecution of homicide—terms such as provocation, intention, and insanity—were in motion during the nineteenth century as part of a broader redefining and reimagining of liability and responsibility. To grasp these often subtle shifts of meaning, we must look to the sites in which they occurred, the most important of which were the courtrooms of the assize courts, where the most serious offenses were tried.

A recent polemical essay by Alan Macfarlane constructed a picture of the social structure of medieval rural England premised on the notion that there was little difference in the nature of family attachment to land between freeholders and those who held their property ‘according to the customs of the manor.’ This essay has received severe criticism from R. H. Hilton, who argues that it ‘ignores the implications of the considerable predominance in many areas of customary land held in villein (i.e. servile) tenure, attempting to assimilate it to freehold as though it were equivalent to sixteenth century copyhold.’ The scale of the difference between these two positions may be attributed to the current state of research into the operation of customary law and its tribunals.

A century has passed since the publication in Germany of a now famous essay on the rights of man by the Heidelberg professor of public law, Georg Jellinek. Over the course of that century, although a “rights revolution” has undoubtedly taken place, numerous practical problems remain in trying to enforce the basic proposition that “all human beings are born free and equal in dignity and rights.” Such problems have led one recent commentator to suggest that perhaps the only meaningful defense of human rights is one based on “moral reciprocity” and secular humanism because any attempts to prioritize human rights on either religious grounds, for example, or that of intrinsic human value, are doomed to failure.

The medieval English Court of Chancery is not a well-known institution. Its Victorian great-granddaughter—if to posit such a relationship does the antecedent justice—has a far broader public for its much darker persona, thanks to Jarndyce and Jarndyce. Even Chancery's Jacobean descendant looms larger in the historical memory than does its medieval forebear, if only for the celebrated battle between Chancellor Ellesmere and Coke, CJ. Perhaps with the brief tenure of St. Thomas More, brought into our own popular culture by playwright Robert Bolt and actor Paul Scofield, the early Chancery emerges for a moment, although the court under More was overshadowed by that chancellor's more difficult trials. In fact, the Chancery as a court has been subsumed in a multitude of studies on the Chancery as an administrative office. It appears in essays on government, councils and parliaments, writing offices and administrative centers. Yet the court that grew around the chancellor was not the sum, or even just a part, of his activity as the leading administrator of the realm. Still, with a few exceptions, the medieval Court of Chancery has never been afforded the same careful and discrete treatment its Elizabethan successor has received. The older court remains a footnote to administrative history, something just on the far side of the light cast by St German and Tudor records.

In early twentieth-century America, the novel technology called “eugenics”—a potent hybrid of biological science, statistical method, and cultural assumptions—won a diverse following of academics, animal breeders, social workers, criminologists, psychiatrists, institutional superintendents, philanthropists, and activists spanning the political spectrum from socialists to white supremacists. Although heirs to the Enlightenment pursuits of science, reason, and a rationally organized state, eugenicists rejected the Enlightenment's egalitarian strain, insisting that hereditary endowment determined social structure. Fusing Darwin's theory of evolution and Mendel's discoveries in plant heredity, eugenicists claimed to find distinct genetic roots for the many problems of personality and society that alarmed their contemporaries: from “feeble-mindedness” and “psychopathy” to “delinquency” and “hypersexuality.” Within the bright lines of a eugenic worldview, the poverty and crime that pervaded an avowedly meritocratic urban-industrial democracy were comprehended as the offspring of hereditary “mental defects,” racial “mongrelization,” and sentimental charitable efforts that, in a vain attempt to reform deviant individuals, had only assured their survival and reproduction.

The British Empire created channels for imperially intended movement. Commodities, bodies, and ideas flowed along axes structured by imperial law and technology. Unintended motion also occurred along these same planes. With every legal structure meant to promote one type of behavior came litigants devising strategies to achieve the opposite. Collusion, bribery, forgery, and perjury were favorite ways to manipulate imperial law. The more permissible strategy of forum shopping was another. Forum shopping is the attempt to push one's case into a jurisdiction promising an optimal result when there is ambiguity over the controlling jurisdiction. It reveals the perception among litigants that bottom-up—and sideways—mechanics exist within legal systems. Unlike work on resistance to state law through extralegal means, I here examine the ways parties tried to work strategically within the confines of the legal system to reconfigure their marital situations. Rather than documenting the success of these maneuvers, however, I note their more common failure. The colonial courts usually saw through unconvincing attempts to forum shop. The fact that litigants continued to try reflects the ingenuity, arguably, of the “legal lottery” mechanism at work in British imperial law. Colonial law, and therefore colonial rule, reinforced its hold on subjects by dangling before them the possibility of individual relief through rule-of-law proceduralism.

The roots of the international legal order have often been traced to intertwining scholarly and political traditions dating back to the early seventeenth century, in particular to early writings in international law and the rise of the nation-state in Europe. Recent scholarship has attacked this narrative from many angles. One approach has been to reexamine early modern European politics and discourse, in particular questioning whether, for example, the publication of Grotius's writings, or the Peace of Westphalia, functioned as a foundational moment in the history of the interstate order. A second, complementary approach has been to broaden the history of global order to encompass inter-imperial politics, including the legal relations of imperial powers and indigenous subjects. The two projects have been occasionally combined in efforts to trace the impact of imperial politics on trends in international law.

As a range of late-twentieth century societies grapple with welfare costs that seem to rise inexorably, a ‘return’ to former priorities and emphases is often mooted. Shifting some of the burden of welfare back to the family from whence it came is attractive to policy makers, if not to recipients. The underlying assumption of ‘back to the family’ reformers seems to be that because family-based social welfare worked in the past, it may now provide a way out of the expensive responsibilities facing the Welfare State. The words used vary; but whether it is a ‘return to Victorian values’ or some other formulae that is being extolled, the reliance upon self-help and family responsibility is unmistakable.

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or “meeting of the minds” of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

In England during the twelfth, thirteenth, and fourteenth centuries, the royal courts cast a longer and longer shadow over private and local jurisdictions. By a series of steps embracing much innovation, the custom of the king's court gradually became the common law of England, and the royal courts asserted their supremacy over other jurisdictions in many areas. Foremost among these were disputes over freehold land and cases involving felonies. It has been suggested that the royal innovations’ jurisdictional effects on private courts were “neither intended nor foreseen.” Nonetheless, they reduced private jurisdictions—with the exception of the palatinates—to constitutional insignificance during the thirteenth century. Occasional baronial objections, such as that enshrined in clause thirty-four of Magna Carta or the bluff waving of a rusty sword at a quo warranto inquest do not disguise this basic fact of English legal and constitutional history.

Lawlessness, both the more subtle manipulative and the cruder violent varieties, has long been seen as one of the most marked features of England in the fourteenth and fifteenth centuries. Even in recent years historians have found it a difficult subject to handle. With the notable exception of K. B. McFarlane, and more recently M.T. Clanchy and G.L. Harriss, few have been prepared to deny that there was something intrinsically wrong with the administration of the law in this period, even though they may concede that it was no ‘wronger’ than in the thirteenth century, merely better documented. Underlying these discussions there is, in Clanchy's words, the often unspoken assumption ‘that the king's justice really was the norm and that justice emanated from the centre to the localities.’ Thus, the need for an extension of royal justice is set against local abuses, which all law-abiding men from the king downwards would have wished eradicated.

For over 150 years from the early eighteenth century, convict transportation was a primary method of punishing serious crime in Britain and Ireland. Convicts were first sent to the colonies in North America and the Caribbean and then to three newly established Australian colonies on the other side of the world. Conditions were very different between the two locations, yet the fundamental law of transportation remained the same for decades after the process began in Australia.

On Good Friday of 1973, members of San Francisco's homosexual community staged a public demonstration amidst the skyscrapers in the business district. Shen Hayes, described as a “frail nineteen-year-old,” claimed to embody the suffering of the city's gay population. Hayes dragged a telephone pole “cross” on his back while throngs of protesters cheered and chanted. The local minister leading the action likened gays’ lack of rights to murder, and the caption accompanying Hayes’ photo in the newspaper claimed that he and other gay Californians had been “crucified.” Despite, despite the protest's religious intensity, its objective was secular. Activists had convened to oppose discrimination against those workers whom Pacific Telephone & Telegraph (PT&T) had labeled “manifest homosexuals”: employees and job applicants who either claimed or seemed to be gay.

The object of this article is to draw attention to an area of European legal history that I think deserves more investigation. It is the change in legal practice caused by the transition from the diffused, undifferentiated, customary law of the earlier middle ages to the various forms of expert, esoteric, professional law that dominated the higher courts of the later middle ages. The suggestion that this has not been much studied may seem odd but, though much has been written on the new study of Roman law, those who work on it have tended to concentrate on the intellectual achievements of the glossators and post-glossators, rather than on practice. Practice in canon law has received more attention, notably from legal historians trained in the Anglo-American tradition, but this has not focused closely on twelfth-century origins. The beginnings of English common law have also been much studied and, since it started off as largely a matter of procedures, that has indeed meant looking at practice. The traditional teleology of legal history has, however, prevented much cross-fertilization with the history of other legal systems. One example of the consequent detachment of English legal history is the assumption of some English legal historians that Roman law procedures were followed in what they often characterize simply as “the Continent” more generally and earlier than seems to have been the case in most areas north of the Alps. Both in England and elsewhere many legal historians concentrate on the period from the thirteenth century on, when sources become more plentiful. Meanwhile, social historians of early medieval western Europe, including England, have argued—to my mind successfully, though I am hardly unprejudiced—that early medieval law was not just a weak, ritualized, and irrational response to feuds and violence, but their investigations tend to stop before the professionals took over. The result is that, apart from recent pioneering work on twelfth-century Tuscany by Chris Wickham, the transition in court practice outside England has been neglected.

After the rise to dominance of the neo-classical school in economics in the 1920s and 1930s, legal historians manifested very little interest in economic theory. After the cliometric revolution of the early 1960s, most legal historians expressed declining interest in economic historians. After the rise of Critical Legal History and cultural legal history in the late 1970s and early 1980s, many legal historians showed diminishing interest in the economy. This trend was augmented by the expansion of law and economics as a leading jurisprudence and methodology within the law schools. Most legal historians viewed themselves as part of a camp in the law schools, whether of the humanities oriented scholars, of post modernists, or of critical scholars, who were antagonists of the law and economics camp. These legal historians often identified all economists with law and economics and further disassociated themselves from economic historians. Ironically, the less legal historians consider economic history, economic theory, and the economy itself as relevant to their purposes, the more economic historians are discovering the relevancy of the law and of legal history to theirs. This article suggests to legal historians that the time is ripe to revisit economic history and theory and to reconsider their long-established indifference toward them.