In early sixteenth-century England, the presence of ecclesiastical sanctuaries in the legal, social, and religious landscape was a matter of great controversy. Any English church could offer temporary sanctuary to an accused felon, a privilege that expired after about forty days, following which the felon had to abjure the realm. More contentiously, by the late Middle Ages a number of English religious houses used their status as royally-chartered liberties to offer sanctuary permanently, not only to accused criminals, but also to debtors, alien craftsmen, and, especially during the civil wars of the fifteenth century, political refugees. These ecclesiastical liberties, small territories that exercised varying extents of juridical and political autonomy, considerably complicated the jurisdictional map of late medieval England. London in particular, with its host of liberties and peculiars, constituted a patchwork quilt of legal jurisdictions. Although the mayor and aldermen of London were wont to say that the “chyeff and most commodyous place of the Cytie of London” constituted “one hoole Countie and one hoole Jurisdiccion and libertie” over which its citizens ruled, saving only the authority of the king himself, this confident as-sertion of the City's jurisdiction over the metropolitan square mile was constantly belied by the presence of these liberties. The most notable—and for the City, the most troubling—was the sanctuary at St. Martin Le Grand, a sizeable area within the bounds of the City, before 1503 governed by the dean and canons of the College of St. Martin, after 1503 absorbed into the lands attached to Westminster Abbey and ruled by the abbot. For about two centuries before St. Martin Le Grand was dissolved in 1542, its precinct was home to a thriving population of debtors, accused felons, and perhaps most numerously alien craftsmen, all seeking for various reasons to avoid civic or royal jurisdiction.5 The dissolution of religious houses which accompanied the English Reformation greatly lessened, although did not altogether eradicate, the privileges of St. Martin's.

In the early nineteenth century, an obscure rural policeman petitioned the French government with an unusual story. Charles Fanaye had served with Napoleon's armies in Egypt. Chased by Mameluks, he was rescued in the nick of time by a black Ethiopian woman and hidden in her home. Threatened in turn by the Mameluks, Marie-Hélène (as the woman came to be called) threw in her lot with the French army and followed Fanaye to France. The couple then sought to wed. They easily overcame religious barriers when Marie-Héléne was baptized in the Cathedral of Avignon. But another obstacle was harder to overcome: an 1803 ministerial decree banned marriage between blacks and whites. Though Fanaye and Marie-Héléne begged for an exception, the decree would plague them for the next sixteen years of their romance.

In February 1704, a Boston laborer named Thomas Lea found himself surrounded by townspeople as he lay on his deathbed. These spectators had gathered hoping to hear a much anticipated confession of the crimes they believed Lea had committed fifteen years earlier during the Dominion of New England. In Suffolk County, many townspeople had long maintained that Lea and others had used the confusion and chaos generated by the unsettling political and legal transformations introduced to New England during the 1680s to surreptitiously gain legal title to the estate of a prosperous Braintree, Massachusetts, landowner named William Penn. Standing by Lea's bedside, one witness, who believed Lea had perjured himself at the 1689 probate administration of Penn's estate, demanded: “Thomas can you as you are going out of the World answer at the Tribunal of God to the Will of Mr Penns, which you have sworn to[?]” “Was Mr Penn living or Dead when this Will was Made?” In the presence of assembled witnesses, Lea acknowledged, “he was dead.” Other townspeople pressed Lea to reveal the role he played in what many believed had been a murder for inheritance scheme. They reminded Lea that Penn's corpse had been found covered “in blood, in his own dung” with “a hole in his back, that you might turn your two fingers into it” and, even more disturbing, “one of his [Penn's] stones in his codd [scrotum] was broken all to pieces.” Averting the onlookers' gaze, Lea “turned his head aside the other way, saying what I did I was hired to do.” For these witnesses, the death-bed confession confirmed the rumors of Lea's crimes and strengthened their belief that a wave of corruption introduced in the 1680s had sabotaged New England's distinctive Puritan jurisprudence. Indeed, townspeople had labored for years to overturn the 1689 probate of Penn's estate in an effort forestall the crown's efforts to bring New England into political and legal conformity with the dictates of the growing English empire.

In 1939, at the end of almost two decades of statewide want and despair, Oklahoma adopted the community property system “to save state residents on their federal income tax.” Between 1939 and 1947, Oklahoma and four other states openly and unabashedly exploited the Supreme Court's creation of what amounted to a tax loophole for the nation's wealthy; several more states seriously considered doing the same. In 1930, the Court had ruled that the community marital property regime of eight western states permitted their married couples to split family income between spouses, so that each spouse reported half of that income for federal income tax purposes. As a result of the federal government's progressive income tax bracket structure, in most cases this split meant that more of the family's income would be taxed in lower tax brackets. Thus, a property regime that was purely a creation of state law had the effect of reducing residents' federal tax obligations.

In January 1994, the Law and History Review published an interview of Willard Hurst by Hendrik Hartog. Michael Grossberg, as editor, introduced the interview as the first of “an occasional series of discussions with legal historians.” Over a decade has elapsed since that conversation. Willard Hurst was known both for his scholarship and his commitment to mentoring. Planning for the 4th Biennial Hurst Summer Institute at Madison in June 2007, I could think of no better way to conclude an Institute focused on nurturing legal historians at the beginning of their careers than with a conversation focused on a life in legal history.

It is a pleasure to comment on Nancy MacLean's hugely important book Freedom is Not Enough: The Opening of the American Workplace as an example of what I might call “bringing the law back in” to the history of the civil rights movement. A generation ago, the idea that law needed to be introduced into this history would have seemed nonsensical. At that time, law provided one of the central touchstones in the historical narrative of the struggle for racial equality in American life. Scholarship in this area built on C. Vann Woodward's pioneering work on the rise of Jim Crow, which itself was written shortly after Woodward's participation in the Brown v. Board of Education litigation. The dominant narrative began with the legal construction of Jim Crow in the late nineteenth century and continued with the founding of the NAACP. Other actors came along at various points in the story, prominent among them New Deal–era racial liberals, World War II–era activists, midcentury social scientists, Southern civil rights leaders and movements, and eventually black power. The end point was marked by the litigation and legislative victories of the 1950s and '60s, which finally wrote back into law what had been taken away by segregationist white Southerners and a compliant Supreme Court in the late nineteenth century. The implicit methodological take on law was that state and federal statutes, as well as court decisions, provided an important impetus, or at the very least a validation, for racial change—first for white Southerners as they created the Jim Crow legal regime and later for segregation's opponents as they reinscribed racial equality onto the core narrative of American life.

I so appreciate Professor Mack's generous comments on Freedom Is Not Enough—and even more his critical engagement with it. It's an author's dream to have a leading scholar in a related field read with such care and insight, and I am very grateful for this opportunity to converse about the intriguing issues he has raised. I first encountered some of Ken's articles about civil rights lawyering before Brown after Freedom Is Not Enough was in press, and I thought then that my discussion of the earlier history would have been enhanced by them because his portrayal was so rich while our perspectives on the relationship between law and activism were so congruent. Now, reading his comments on the work as published, I wish I had studied law with him! His challenges would have made it a better book.