In January 1930 officials of the Bureau of Immigration testified about the Border Patrol before a closed session of the House Immigration Committee. Henry Hull, the commissioner general of immigration, explained that the Border Patrol did not operate “on the border line” but as far as one hundred miles “back of the line.” The Border Patrol, he said, was “a scouting organization and a pursuit organization…. [Officers] operate on roads without warrants and wherever they find an alien they stop him. If he is illegally in the country, they take him to unit headquarters.”

The British treated Australia as terra nullius—as unowned land. Under British colonial law, aboriginal Australians had no property rights in the land, and colonization accordingly vested ownership of the entire continent in the British government. The doctrine of terra nullius remained the law in Australia throughout the colonial period, and indeed right up to 1992.

What role did the Roman legal concept of res nullius (things without owners), or the related concept of terra nullius (land without owners), play in the context of early modern European expansion? Scholars have provided widely different answers to this question. Some historians have argued that European claims based on terra nullius became a routine part of early modern interimperial politics, particularly as a response by the English and French crowns to expansive Iberian claims supported by papal donations. Others have countered that allusions to terra nullius marked a temporary phase of imperial discourse and that claimants relied more often on other rationales for empire, rarely mentioning res nullius or terra nullius and often explicitly recognizing the ownership rights, and even the sovereignty, of local polities and indigenous peoples.

On July 10, 1833, an aspiring young English lawyer named Thomas Babington Macaulay stood before the Parliament and presented an impassioned argument about the future role of British governance in India. Whereas in Europe, as Macaulay saw it, “The people are everywhere perfectly competent to hold some share, not in every country an equal share, but some share of political power,” in India, Macaulay asserted, “you cannot have representative institutions.” Thus the role of the British colonizers was “to give good government to a people to whom we cannot give a free government.” At the core of Macaulay's good but not free government stood what he saw as one of England's greatest gifts to the people of India: a rule of law.

Until recently, historians of American constitutionalism agreed that, except for the infamous Dred Scott decision, the most unfortunate decisions of the Supreme Court were those that incorporated the notion of laissez-faire into the Constitution in the late nineteenth century. These decisions permitted the Court to frustrate efforts to secure a more just economic order in the United States until the 1930s. The intellectual foundations of laissez-faire constitutionalism have been so alien to most legal scholars since the 1930s (and equally unintelligible to many even earlier) that they have found it difficult to believe these decisions were the result of efforts to enforce ‘neutral’ principles of constitutional law, to utilize the terms of Herbert Wechsler's famous analysis. They could not conceive of the Court's rhetoric about liberty and due process as anything but cant, a subterfuge designed to camouflage other purposes.

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

Scholars of slavery in Latin America are giving renewed attention to the study of the law. Although this literature is not as developed and sophisticated as in the United States, where slavery has been a central concern of legal historians for quite some time, a specialized subfield seems to be in the making. This is a welcome development. After all, every important aspect of slaves' lives in the Iberian colonies, from birth and nourishment to marriage, leisure, punishment, and rest, was regulated in theory by a vast, indeed massive, array of positive laws. Some of these regulations had been part of the traditional statutes of Castile for centuries, others were passed by the Crown or by local organs of administration and power.

The English common law of real property, as S.F.C. Milsom has argued, took shape between 1153 and 1215. The common law gave royal protection to free tenements, replacing feudal relationships as the primary bond structuring society. The law thus constituted the institutional core of the English state. But no Machiavellian monarch constructed the English state. Henry II was, rather, a king who presumed the morality and necessity of feudal relationships. His innovations, though intentional and carefully planned, were directed at narrower and less far-sighted ends. Other changes were the result of bureaucratic action. The complex interplay between present-oriented political or juridical decisions and bureaucratic rigor generated a legal system.

Although modern societies generally entrust enforcement of the criminal law to public prosecutors, most crimes in premodern societies were prosecuted privately. In classical Athens, ninth-century Germany, and England before the nineteenth century, there were no public prosecutors for most crimes. Instead, the victim or a relative initiated and litigated the cases. This article is the first rigorously quantitative analysis of private prosecution. It focuses on thirteenth-century England and uses statistical techniques, such as regression analysis, to show that changes in the treatment of settled cases can explain the rate of private prosecution.

The train Mary Jane Chilton had boarded, typical of trains of the period, had two passenger coaches: a ladies' car and a smoker. Only women and women accompanied by gentlemen rode in the ladies' car, while in the smoker rode all manner of men traveling alone, some of whom were smoking and drinking. In the oncoming darkness, Mary Jane Chilton feared the smoker and the men there who were strangers to her. Yet as she tried to enter the ladies' car, the brakeman blocked her way; the conductor seconded his actions: “that car was not for niggers.” Rather than go into the smoker, Mary Jane Chilton sat down on the steps of the ladies' car until the conductor, as she describes, bodily moved her to the train platform in front of a crowd of cheering bystanders, and the train pulled out of the station. Mary Jane Chilton, her fifteen-year-old daughter, and her eight-year-old nephew were left to walk to Carondelet, Missouri.

“Two negroes hanged,” John Gabriel Stedman wrote in his Suriname journal for March 9, 1776, and then two days later, among his purchases of “soap, wine, tobacco, [and] rum” and his dinners with an elderly widow, he records, “A negro's foot cut off.” Stedman expanded on these events in the later Narrative of his years as a Dutch–Scottish soldier fighting against the Suriname Maroons:

The landmark 1954 decision Brown v. Board of Education has shaped trial lawyers' approaches to litigating civil rights claims and law professors' approaches to teaching the law's powers and limitations. The court-ordered desegregation of the nation's schools, moreover, inspired subsequent lawsuits by African Americans aimed variously at ending racial distinctions in housing, employment, and voting rights. Litigation to enforce the Brown decision and similar mandates brought slow but steady progress and inspired members of various other minorities to appropriate the rhetoric, organizing methods, and legal strategy of the African American civil rights struggle.

The history of criminal law has claimed an increasing share of the attention of legal and social historians in recent years. Undeterred by Professor Milsom's verdict that in the area of English criminal law, ‘nothing worthwhile was created,’ historians have plunged into the study of doctrine and practice in the common law courts. The attractions of the source material are undoubtedly great. The law is relatively straightforward, at least compared to land litigation. The cases are interesting and sometimes sensational. The subject matter promises rewards in understanding the relationship between social change and legal development. And the study may even be immediately relevant, shedding light on current law enforcement problems.

One day in late February 1873, the comisario of section 10 in Buenos Aires arrived at the home of Jacobo Varela to investigate reports that Varela had been involved in a duel with another young man, Julio Benites. Varela's brother met the policeman at the door and reported that, lamentably, Jacobo was ill and could not see him. When asked if he knew anything about a duel, the brother replied that he most certainly did not. Yes, Jacobo was bedridden because of a sword wound, but that was an accident: he had slipped while playing with the weapon and had fallen on top of it, the blade entering his right side below the shoulder and passing through his body. The additional wounds on his hands came when he attempted to pull the sword out.

In the summer of 1809 a flotilla of boats arrived in New Orleans carrying more than 9,000 Saint-Domingue refugees recently expelled from the Spanish colony of Cuba. These migrants nearly doubled the population of New Orleans, renewing its Francophone character and populating the neighborhoods of the Vieux Carré and Faubourg Marigny. At the heart of the story of their disembarkation, however, is a legal puzzle. Historians generally tell us that the arriving refugees numbered 2,731 whites, 3,102 free people of color, and 3,226 slaves. But slavery had been abolished in Saint-Domingue by decree in 1793, and abolition had been ratified by the French National Convention in 1794. In what sense and by what right, then, were thousands of men, women, and children once again to be held to be “slaves”?

The late King Hamlet's ghost and þorgerð have similar problems. Both want to oblige someone to take action on behalf of a corpse. And both enlist the aid of part of that corpse or its facsimile in their efforts. Old Hamlet's ghost must busy himself about this matter because he was murdered, and in such a fashion that his body showed no sign of foul play. Clearly, before he can charge someone to avenge him he must announce that there is something to avenge.

One of the great, unrecognized ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the “ancient constitution” and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related rights of Englishmen while overseas. “The common law,” Coke declared in Parliament in 1628, “meddles with nothing that is done beyond the seas.” The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. The jurisprudence that gave intellectual shape to colonial resistance before, and to notions of the rule of law after, the American Revolution was not intended by its primary author to benefit Americans. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight.

Historians' impressions of the position of agricultural servants and wage labourers within the medieval English rural society and economy remain as imprecise as the picture which most contemporary documents provide. Research to date on medieval agricultural labourers has concentrated upon estate workers within the seigneurial economy, primarily because manorial accounts provide fairly detailed information about famuli or estate labourers employed by particular manors, their terms of employment, and the remuneration they received. But the role of servants and labourers employed on tenant holdings by medieval villagers, and their importance for non-agricultural production within rural communities, are still extremely uncertain. They appeared fleetingly if at all in manorial documentation, which seldom had reason to be concerned with them as such, while another source which historians have used to approach the problem, nominative polltax returns furnishing household or occupational information, poses serious difficulties of interpretation.

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.