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  3. Studies in Legal History

Published in association with the American Society for Legal History, this series consists of books that grapple with key questions in legal history. The series welcomes works of unusual distinction by both senior and junior scholars. Most of the published volumes in the series deal with American legal history, though a significant number are on European topics. There are no chronological, cultural or geographical limits on volumes in the series. For more information, see the series website at studiesinlegalhistory.org.

  • General Editors: Lisa Ford, University of New South Wales, Sydney, Thomas McSweeney, William & Mary Law School, Virginia, Reuel Schiller, University of California College of the Law, San Francisco, Taisu Zhang, Yale Law School

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34 results in Studies in Legal History

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From Masters of Slaves to Lords of Lands
  • The Transformation of Ownership in the Western World
  • James Q. Whitman
  • Coming soon
  • Expected online publication date:
    November 2024
    Print publication:
    16 January 2025
  • Today we think of land as the paradigmatic example of property, while in the past, the paradigmatic example was often a slave. In this seminal work, James Q. Whitman asserts that there is no natural form of ownership. Whitman dives deep into the long Western history of this transformation in the legal imagination – the transformation from the ownership of humans and other living creatures to the ownership of land. This change extended over many centuries, coming to fruition only on the threshold of the modern era. It brought with it profound changes, not only in the way we understand ownership but also in the way we understand the state. Its most dramatic consequence arrived in the nineteenth century, with the final disappearance of the lawful private ownership of humans, which had been taken for granted for thousands of years.

Trials of Sovereignty
  • Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922
  • Alastair McClure
  • Coming soon
  • Expected online publication date:
    November 2024
    Print publication:
    28 November 2024
  • Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics.

Family Matters
  • Queer Households and the Half-Century Struggle for Legal Recognition
  • Marie-Amélie George
  • Published online:
    27 May 2024
    Print publication:
    01 August 2024
  • In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change.

Execution, State and Society in England, 1660–1900
  • Simon Devereaux
  • Published online:
    12 October 2023
    Print publication:
    26 October 2023
  • This book provides the first comprehensive account of execution practices in England and their extraordinary transformation from 1660 to 1900. Agonizing execution rituals were once common. Male traitors were hanged, disembowelled while still alive, then decapitated and quartered. Female traitors were burned alive. And common criminals slowly choked to death beneath wooden crossbeams erected at the margins of towns. Some of their bodies were either left to rot on roadside gibbets or dissected by anatomy instructors. Two centuries later, only murderers and traitors were executed – both by hanging – and they died alone, usually quickly, and behind prison walls. In this major contribution to the history of crime and punishment in England, Simon Devereaux reveals how urban growth, and the unique public culture it produced, challenged and largely displaced those traditional elites who valued the old 'Bloody Code' as an instrument of their rule.

Nothing More than Freedom
  • The Failure of Abolition in American Law
  • Giuliana Perrone
  • Published online:
    04 May 2023
    Print publication:
    11 May 2023
  • Nothing More than Freedom explores the long and complex legal history of Black freedom in the United States. From the ratification of the Thirteenth Amendment in 1865 until the end of Reconstruction in 1877, supreme courts in former slave states decided approximately 700 lawsuits associated with the struggle for Black freedom and equal citizenship. This litigation – the majority through private law – triggered questions about American liberty and reassessed the nation's legal and political order following the Civil War. Judicial decisions set the terms of debates about racial identity, civil rights, and national belonging, and established that slavery, as a legal institution and social practice, remained actionable in American law well after its ostensible demise. The verdicts determined how unresolved facets of slavery would undercut ongoing efforts for abolition and the realization of equality. Insightful and compelling, this work makes an important intervention in the history of post-Civil War law.

Monitoring American Federalism
  • The History of State Legislative Resistance
  • Christian G. Fritz
  • Published online:
    05 January 2023
    Print publication:
    26 January 2023
  • Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.

Vernacular Law
  • Writing and the Reinvention of Customary Law in Medieval France
  • Ada Maria Kuskowski
  • Published online:
    27 October 2022
    Print publication:
    03 November 2022
  • Custom was fundamental to medieval legal practice. Whether in a property dispute or a trial for murder, the aggrieved and accused would go to lay court where cases were resolved according to custom. What custom meant, however, went through a radical shift in the medieval period. Between the twelfth and thirteenth centuries, custom went from being a largely oral and performed practice to one that was also conceptualized in writing. Based on French lawbooks known as coutumiers, Ada Maria Kuskowski traces the repercussions this transformation – in the form of custom from unwritten to written and in the language of law from elite Latin to common vernacular – had on the cultural world of law. Vernacular Law offers a new understanding of the formation of a new field of knowledge: authors combined ideas, experience and critical thought to write lawbooks that made disparate customs into the field known as customary law.

The Science of Proof
  • Forensic Medicine in Modern France
  • E. Claire Cage
  • Published online:
    25 August 2022
    Print publication:
    01 September 2022
  • The Science of Proof traces the rise of forensic medicine in late eighteenth- and nineteenth-century France and examines its implications for our understanding of expert authority. Tying real life cases to broader debates, the book analyzes how new forms of medical and scientific knowledge, many of which were pioneered in France, were contested, but ultimately accepted, and applied to legal problems and the administration of justice. The growing authority of medical experts in the French legal arena was nonetheless subject to sharp criticism and scepticism. The professional development of medicolegal expertise and its influence in criminal courts sparked debates about the extent to which it could reveal truth, furnish legal proof, and serve justice. Drawing on a wide base of archival and printed sources, Claire Cage reveals tensions between uncertainty about the reliability of forensic evidence and a new confidence in the power of scientific inquiry to establish guilt, innocence, and legal responsibility.

The Dreadful Word
  • Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776
  • Kristin A. Olbertson
  • Published online:
    03 March 2022
    Print publication:
    10 March 2022
  • This book, the first comprehensive study of criminal speech in eighteenth-century New England, traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness. Analyzing provincial statutes and hundreds of criminal prosecutions, Kristin A. Olbertson argues that colonists transformed their understanding of speech offenses, from fundamentally ungodly to primarily impolite. As white male gentility emerged as the pre-eminent model of authority, records of criminal prosecution and punishment show a distinct cadre of politely pious men defining themselves largely in contrast to the vulgar, the impious, and the unmanly. “Law,” as manifested in statutes as well as in local courts and communities, promoted and legitimized a particular, polite vision of the king's peace and helped effectuate the British Empire. In this unique and fascinating work, Olbertson reveals how ordinary people interacted with and shaped legal institutions.

Unraveling Abolition
  • Legal Culture and Slave Emancipation in Colombia
  • Edgardo Pérez Morales
  • Published online:
    20 January 2022
    Print publication:
    03 February 2022
  • Unraveling Abolition tells the fascinating story of slaves, former slaves, magistrates and legal workers who fought for emancipation, without armed struggle, from 1781 to 1830. By centering the Colombian judicial forum as a crucible of antislavery, Edgardo Pérez Morales reveals how the meanings of slavery, freedom and political belonging were publicly contested. In the absence of freedom of the press or association, the politics of abolition were first formed during litigation. Through the life stories of enslaved litigants and defendants, Pérez Morales illuminates the rise of antislavery culture, and how this tradition of legal tinkering and struggle shaped claims to equal citizenship during the anti-Spanish revolutions of the early 1800s. By questioning foundational constitutions and laws, this book uncovers how legal activists were radically committed to the idea that independence from Spain would be incomplete without emancipation for all slaves. This title is also available as Open Access on Cambridge Core.

Truth and Privilege
  • Libel Law in Massachusetts and Nova Scotia, 1820-1840
  • Lyndsay Campbell
  • Published online:
    16 December 2021
    Print publication:
    16 December 2021
  • Truth and Privilege is a comparative study that brings together legal, constitutional and social history to explore the common law's diverging paths in two kindred places committed to freedom of expression but separated by the American Revolution. Comparing Nova Scotia and Massachusetts, Lyndsay Campbell examines the development of libel law, the defences of truth and privilege, and the place of courts as fora for disputes. She contrasts courts' centrality in struggles over expression and the interpretation of individual rights in Massachusetts with concerns about defining protective boundaries for the press and individuals through institutional design in Nova Scotia. Campbell's rich analysis acts as a lens through which to understand the role of law in shaping societal change in the nineteenth century, shedding light on the essential question we still grapple with today: what should law's role be in regulating expression we perceive as harmful?

Pain, Penance, and Protest
  • Peine Forte et Dure in Medieval England
  • Sara M. Butler
  • Published online:
    19 November 2021
    Print publication:
    18 November 2021
  • In medieval England, a defendant who refused to plead to a criminal indictment was sentenced to pressing with weights as a coercive measure. Using peine forte et dure ('strong and hard punishment') as a lens through which to analyse the law and its relationship with Christianity, Butler asks: where do we draw the line between punishment and penance? And, how can pain function as a vehicle for redemption within the common law? Adopting a multidisciplinary approach, this book embraces both law and literature. When Christ is on trial before Herod, he refused to plead, his silence signalling denial of the court's authority. England's discontented subjects, from hungry peasant to even King Charles I himself, stood mute before the courts in protest. Bringing together penance, pain and protest, Butler breaks down the mythology surrounding peine forte et dure and examines how it functioned within the medieval criminal justice system.

Imperial Incarceration
  • Detention without Trial in the Making of British Colonial Africa
  • Michael Lobban
  • Published online:
    20 August 2021
    Print publication:
    09 September 2021
  • For nineteenth-century Britons, the rule of law stood at the heart of their constitutional culture, and guaranteed the right not to be imprisoned without trial. At the same time, in an expanding empire, the authorities made frequent resort to detention without trial to remove political leaders who stood in the way of imperial expansion. Such conduct raised difficult questions about Britain's commitment to the rule of law. Was it satisfied if the sovereign validated acts of naked power by legislative forms, or could imperial subjects claim the protection of Magna Carta and the common law tradition? In this pathbreaking book, Michael Lobban explores how these matters were debated from the liberal Cape, to the jurisdictional borderlands of West Africa, to the occupied territory of Egypt, and shows how and when the demands of power undermined the rule of law. This title is also available as Open Access on Cambridge Core.

The Laws of Alfred
  • The Domboc and the Making of Anglo-Saxon Law
  • Stefan Jurasinski, Lisi Oliver
  • Published online:
    07 May 2021
    Print publication:
    27 May 2021
  • Alfred the Great's domboc ('book of laws') is the longest and most ambitious legal text of the Anglo-Saxon period. Alfred places his own laws, dealing with everything from sanctuary to feuding to the theft of bees, between a lengthy translation of legal passages from the Bible and the legislation of the West-Saxon King Ine (r. 688–726), which rival his own in length and scope. This book is the first critical edition of the domboc published in over a century, as well as a new translation. Five introductory chapters offer fresh insights into the laws of Alfred and Ine, considering their backgrounds, their relationship to early medieval legal culture, their manuscript evidence and their reception in later centuries. Rather than a haphazard accumulation of ordinances, the domboc is shown to issue from deep reflection on the nature of law itself, whose effects would permanently alter the development of early English legislation.

Armed with Sword and Scales
  • Law, Culture, and Local Courtrooms in London, 1860–1913
  • Sascha Auerbach
  • Published online:
    05 February 2021
    Print publication:
    04 February 2021
  • In the mid-eighteenth century, author and magistrate Henry Fielding adjudicated cases of theft, assault, and public disorder from his London home on Bow Street. By the middle of the nineteenth century, Fielding's modest 'police office' had expanded to become the most prolific court system in Britain and the cornerstone of criminal and civil justice in the metropolis. Sascha Auerbach examines the fascinating history of this institution through the lens of 'courtroom culture' – the combination of formal statute and informal custom that guided everyday practice in the London Police Courts. He offers a new model for understanding the relationship between law, culture, and society in modern Britain and illuminates how the local courtroom became a crucial part of everyday life and thoroughly entangled with popular representations of justice and morality.

Becoming Free, Becoming Black
  • Race, Freedom, and Law in Cuba, Virginia, and Louisiana
  • Alejandro de la Fuente, Ariela J. Gross
  • Published online:
    16 January 2020
    Print publication:
    16 January 2020
  • How did Africans become 'blacks' in the Americas? Becoming Free, Becoming Black tells the story of enslaved and free people of color who used the law to claim freedom and citizenship for themselves and their loved ones. Their communities challenged slaveholders' efforts to make blackness synonymous with slavery. Looking closely at three slave societies - Cuba, Virginia, and Louisiana - Alejandro de la Fuente and Ariela J. Gross demonstrate that the law of freedom - not slavery - established the meaning of blackness in law. Contests over freedom determined whether and how it was possible to move from slave to free status, and whether claims to citizenship would be tied to racial identity. Laws regulating the lives and institutions of free people of color created the boundaries between black and white, the rights reserved to white people, and the degradations imposed only on black people.

Felony and the Guilty Mind in Medieval England
  • Elizabeth Papp Kamali
  • Published online:
    18 July 2019
    Print publication:
    01 August 2019
  • This book explores the role of mens rea, broadly defined as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century - the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word 'felony' itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, was willed in a way not constrained by necessity, and was evil or wicked in its essence.

Murder in the Shenandoah
  • Making Law Sovereign in Revolutionary Virginia
  • Jessica K. Lowe
  • Published online:
    01 February 2019
    Print publication:
    07 February 2019
  • On July 4, 1791, the fifteenth anniversary of American Independence, John Crane, a descendant of prominent Virginian families, killed his neighbor's harvest worker. Murder in the Shenandoah traces the story of this early murder case as it entangled powerful Virginians and addressed the question that everyone in the state was heatedly debating: what would it mean to have equality before the law - and a world where 'law is king'? By retelling the story of the case, called Commonwealth v. Crane, through the eyes of its witnesses, families, fighters, victims, judges, and juries, Jessica K. Lowe reveals how revolutionary debates about justice gripped the new nation, transforming ideas about law, punishment, and popular government.

Moral Contagion
  • Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America
  • Michael A. Schoeppner
  • Published online:
    11 January 2019
    Print publication:
    17 January 2019
  • Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a 'moral contagion' of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship - one that guaranteed a number of rights against state regulation - they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by Antebellum free people of color, by people afflicted with 'moral contagion'.

Almost Citizens
  • Puerto Rico, the U.S. Constitution, and Empire
  • Sam Erman
  • Published online:
    23 November 2018
    Print publication:
    13 December 2018
  • Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood, and toward doctrines that accommodated racist imperial governance. Erman's gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.

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