In 1930 Richard B. Morris published Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries. The monograph included a chapter on the legal status of colonial women that became extremely influential within a short time of its appearance. Morris's influence continues half a century later. Several books published in 1980 cite him as one of their primary authorities on women's rights: Linda K. Kerber, Women of the Republic: Intellect & Ideology in Revolutionary America; Lyle Koehler, A Search for Power: The ‘Weaker Sex’ in Seventeenth-Century New England; and Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800. Other influential books and articles also rely heavily on Morris, including A Little Commonwealth: Family Life in Plymouth Colony by John Demos, ‘The Illusion of Change: Women and the American Revolution,’ by Joan Hoff Wilson, and ‘The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson, 1800–1840,’ by Gerda Lerner. In fact, almost every published sentence on women's rights in early American law is followed by a footnote citing chapter three of Studies in the History of American Law. In The Bonds of Womanhood (1977), Nancy F. Cott declared that Morris's chapter ‘has become the standard essay on colonial women under the common law.’

Following Jacques Cartier's voyages up and down the St. Lawrence River in 1534, 1535–36 and 1541–42, French interest in the region surged. This interest was confined to the region's potential deposits of minerals, and then diverted realistically to the trade of furs, before ultimately, during the seventeenth century, it diversified to take into account the prospect of agricultural smallholding. So confined, this interest did not account for customary tenure and systems of property relations among indigenous inhabitants; generally these were matters avoided by merchants, traders, missionaries, and early settlers until the expediencies of settlement on the ground required otherwise. These were matters for which, in New France, the companies in charge devised no coherent policy. These were matters for which, at home, the French Crown was no beacon of advice either, meting out meager and inconsistent policies of empire before 1663, preferring instead to endorse trade monopolies while preparing for disputes with neighboring nations with competing designs to the New World.

In this article, I address the use of witness testimony by medieval and early-modern historians of England. Although the idea that such evidence straightforwardly represents the thoughts and feelings of quite lowly people has long been discredited, I think that some part of this assumption still haunts the thinking of our postmodern, or cultural turn, historiography. To put it rather too bluntly: the old, empiricist quest for “real voices” in testimonies has to some extent been replaced by a contemporary quest for “real discourses.” That is to say, the utilization of testimonies by historians often seems to boil down to the careful extraction of the particular discourse under examination—gender, class, childhood—from the legal discourses acknowledged to be inherent in witness testimonies produced in law courts. Now, this is a severely reductionist account, and later I will elaborate on the varieties and subtleties of current approaches. Nonetheless, this assumption that we can simply extrapolate social discourses about “x” from the legal discourses of the depositions seems to me somewhat flawed, because it presumes that premodern witnesses were simply conduits of discourse, whose testimony was nonetheless decisively shaped by the machinations of the legal counsel. In fact, as I will argue here, medieval witnesses were quite capable of manipulating such discourses, using clichés to tell the court what they thought it wanted to hear. In the subsequent discussion, I will look in detail at two intimately related cases from the Bishop of London's consistory court to make this point more explicit. First, I will relate the basic facts of these cases: the narrative of the events and the procedure of the courts. I will then address the historiography of witness testimony in greater detail, at the same time demonstrating the way in which the examples from the consistory counter the assumptions of this historiography. I will present different ways of reading my own examples using different positions within the scholarly literature, before showing how the case upsets even the most sophisticated of such readings. Overall, I argue that as well as considering the “construction” of the testimony by lawyers and legal counsels, and the “deconstruction” of such discourses by historians, we must begin to think about the “preconstruction” of the testimony by witnesses; their own integration of legalistic ideas into the fabric of their depositions. Finally, I will conclude by considering some of the wider implications of this argument for the use of witness depositions, and for the study of “law and society” more generally in the medieval and early-modern periods.

The first part of the article presents a six-tiered typology of conventional approaches to historical periodization in international law. The “hegemonic” approach, the “Eurocentric universalist” approach, the “state-centric” approach, the “intellectual doctrinal” approach, the “institutional” approach, and the “normative” approach to the question of periodization of the history of international law are surveyed in turn in the light of contemporary literature. The second part examines how in the wake of the recent “historical turn” in international law a new critical historiographical wave has problematized the question of periodization because of the homogenizing effects and the “teleology of progress” to which periodization is interpreted to contribute in international legal history. The third part tackles the notion of “alternative periodization” illustrating, with examples from contemporary literature in the history of international law, its value as a launching pad for the “formation of new, formerly unknown periods,” a task that is considered “an essential part of historiographical innovation.” The conclusion elaborates on the heuristic potential of a multiperspectival approach to the study of periodization in the history of international law.

When Hannah Arendt came to Jerusalem in 1961 to attend the Eichmann trial she expected to find Evil incarnated in the person of Eichmann. How surprised she was to see the man in the glass booth. The word she used repeatedly to describe him was “mediocre,” referring to the very average qualities of his person. To Arendt the dissonance between Eichmann's horrifying actions and the bureaucratic character of the man demanded an explanation. Like so many of us, Arendt's conception of evil had been informed by great works of art, but the reality of this villain did not fit her expectations.

The American victory in the Revolutionary War was followed by a spate of lawmaking, the silence that succeeded the clash of arms being promptly shattered by a legislative hubbub. One North Carolina judge in 1787 likened the colonists' legal situation after the Revolution to that of “a set of people shipwrecked and cast on a marooned island.” Like so many Robinson Crusoes, they were “without laws, without magistrates, without government, or any legal authority.” A new political order was urgently required, so constitutions were drafted and adopted in short order. Civil laws were needed as well, and rules of decision for the new state courts. By and large, English common law was maintained, a familiar system with which most people were satisfied and one, moreover, that had gained added luster from revolutionary arguments based on defense of the rights of “freeborn Englishmen.”

Writing for his fellow military officers in early 1903, United States Army Major C.J. Crane reflected on the recent Philippine–American War. The bloody struggle to suppress an insurgency in the Philippines after the United States had annexed them from Spain in 1899 had officially concluded the previous July. The war had been accompanied by fierce racist sentiments among Americans, and in keeping with these, Crane described his foes as “the most treacherous people in the world.” But Crane's discussion drew as much on concepts of law as it did on race. The average American officer, Crane argued, had “remembered all the time that he was struggling with an enemy who was not entitled to the privileges usually granted prisoners of war,” and could be summarily executed, without benefit of “court-martial or other regular tribunal.” If anything, the Americans had been too generous. “Many [American] participants in the struggle,” he maintained, “have failed to fully understand that we were practically fighting an Asiatic nation in arms and almost every man a soldier in disguise and a violator” of the laws of war. But what did those laws mean to the United States during the conflict, and what does this indicate about the broader history of international law's relationship to empire?

At the turn of the twentieth century, when highbrow political thinkers rebelled against the consensual epistemology and ethics of the Victorians, when they argued, as William James did, that “neither the whole of truth nor the whole of good is revealed to any single observer,” when they declared themselves to be living in “a world where truth and justice are to be carved from culture rather than found already etched in reason,” they created an unprecedented problem in liberal political and legal thought. Previous thinkers could take the individual as the fundamental political unit and attribute to “him” a capacity for knowing and doing right that “he” shared with all God's children (as “commonsense” moral philosophy held) or all participants in a consensual, organically developing society (as historicist scholarship had it). Armed with such premises, they could confidently judge diverse social practices against universal standards of conduct.

In his inaugural lecture as Downing Professor of the Laws of England at the University of Cambridge, delivered in October 1888, Frederic Maitland offered a set of provocative and now familiar reflections on “Why the history of English law is not written.” According to Maitland, although English archives possessed “a series of records which for continuity, catholicity, minute detail[,] and authoritative value” had “no equal…in the world,” the “unmanageable bulk” of these sources had “overburdened” aspiring historians of English law. As a result, “large provinces” of English legal history remained to be “reclaimed from the waste.” With few willing to undertake such reclamation efforts, the historiography of English law remained as bleak and barren as the bogs from which Maitland's Cambridgeshire had itself only reluctantly emerged.

Over the last decade special attention has been accorded to the development of the trial jury. Historians have examined, within the context of the administration of justice and across a broad chronological span, the shifting character of English juries. Thomas Green himself has contributed much to our understanding of medieval jury behavior by synthesizing his own and existing research to form a useful working hypothesis and by highlighting in particular the practice of jury nullification. Yet there are still areas, particularly in the medieval period, that lack adequate definition and would benefit from the close attention afforded by more specific studies ranging over a limited time frame.

The defense of Catalan civil law against the introduction of the Spanish Civil Code in the late nineteenth century was the catalyst for a broad social movement that would be transformed into Catalan nationalism by the turn of the twentieth century. Lawyers were central to this development. They interpreted and popularized the danger codification presented for Catalan society and they were instrumental in making the civil law a central element in the construction of Catalan national identity. Taking their cue from the experience of other stateless nations in Europe, lawyers developed a principled argument for political autonomy that was institutionalized with the creation, in 1901, of Catalonia's first nationalist political party, the Lliga Regionalista. Between 1881 and 1901, Catalan lawyers would help found a series of social movements for the protection of Catalan culture and orient these movements toward the adoption of nationalist objectives. Finally, lawyers would form the majority of the Lliga Regionalista's electoral candidates and the core of the party's strategists, helping the party climb to a position of dominance in Catalan politics between 1901–1932.

Shortly after Henry II had succeeded to the English throne, Richard of Anstey commenced litigation against his cousin, Mabel de Francheville. His uncle, William de Sackville, had held a sizeable mesne barony, consisting of at least seven Essex manors and the overlordship of ten knights' fees in Essex and three neighbouring counties. Richard's aim was to secure this property for himself. Mabel claimed that (as William's daughter and heiress) she was rightfully in possession. Richard asserted that she was illegitimate, the issue of a marriage that had been annulled by the Church; and that as Williams's nephew, the eldest son of William's sister, the lands should pass to him, as William's heir. The litigation began in 1158 in the king's court; but once the question of Mabel's status had been raised it was transferred to the Church courts. Her legitimacy was discussed in turn in the court of the archbishop of Canterbury, before papal judges delegate, and finally before the papal court of audience in Rome. The eventual decision was that Mabel was illegitimate. The case then returned to the king's court, and, some five years after the proceedings had begun, the king's court awarded William de Sackville's lands to Richard of Anstey.

Two of the most significant factors in the development of European nation states are the enforcement of the law and the political relationship between central government and the provinces. The establishment of powerful national institutions in the Middle Ages, the successful incorporation of its geographical fringes, and the involvement of local elites in implementing national law and policies have made England a challenging subject to test this interaction between the center and the localities. Although this relationship could never be free of tensions, reflection on the context of the English Civil War has suggested a new interpretation. Pursuing the inquiries initiated by the so-called “gentry controversy” in the 1950s and 1960s, a group of historians has studied individual counties and argued that, for local aristocrats and gentlemen, provincial values and issues took precedence over national policies. The Civil War, in their view, appeared to be a conflict between an increasingly interventionist and “nationalizing” central government and semiautonomous shires.

The inseparability of law and history is manifest when historical interpretation -an integral component of legal hermeneutics-results in juristic disagreement. This article is a foray into the shift from prohibition to permissibility of prisoner of war execution in early Islamic legal history that connects changing legal opinions to changing historiographical readings. Contemplating the contrast between historical and jurisprudential interpretations of historical events with legal implications will facilitate investigation of the interactions between historiography and legal discourse. Exploring a few questions will highlight the ambiguous, overlapping roles of historians and jurists as they construct (legal) histories: (1) Do historical narratives about all the battles that occurred during the Prophet's lifetime illustrate his legal practice concerning treatment of prisoners of war? (2) After the Prophet's death, how did Muslim jurists adjudicate this issue? (3) What legal reasoning did key Muslim jurists of the ‘professionalization’ period apply in permitting the execution of war prisoners? (4) What could explain the discrepancy between the chronologically earlier opinion (prohibiting prisoner execution) and the later, more dominant legal opinion (permitting prisoner execution)?

When industrial schools were initially proposed in late nineteenth-century Canada, they were perceived to be a common solution for the neglected and delinquent working-class boy of the urban slums and for the Aboriginal boy in need of similar education, discipline, and moral and vocational training. This undertaking briefly encapsulated the twinned aims of Canada's nation-building project: to civilize and acculturate both the poor and the colonized to middle-class, Western, white and Anglo norms. As John Comaroff and Jean Comaroff remark of nineteenth-century British imperialism, the taming of the “uncivilised and immoral” indigenous African and British slum dweller were overlapping projects, with the “primitive and the pauper” seen as “one in spirit. …the sacred task of the colonizing mission was to reconstruct the home lives of both” by inculcating in their daily lives the bourgeois values of “modern domesticity.”

World War I was a pivotal event for U.S. political and economic development, particularly in the realm of public finance. For it was during the war that the federal government ended its traditional reliance on regressive import duties and excise taxes as principal sources of revenue and began a modern era of fiscal governance, one based primarily on the direct and progressive taxation of personal and corporate income. The wartime tax regime, as the historian David M. Kennedy has observed, “occasioned a fiscal revolution in the United States.”

Shortly after two o'clock on the afternoon of Saturday, 19 September 1789, the last act of the sessions at Justice Hall in the Old Bailey began. London's accused capital offenders were tried here eight times yearly. Those who were convicted and received sentence of death or transportation remained in nearby Newgate Prison until their sentences could be carried into execution. So, too, did the capital respites: those convicts who were to be spared execution but who would not actually be pardoned until the Recorder of London, the chief sentencing officer at the Old Bailey, had decided what condition should be imposed. The vast majority of pardoned capital respites were transported to New South Wales. Before that condition of pardon could be put into effect, however, the respites had first to be brought back into the court at the end of another sessions in order to be formally notified, and to signal their acceptance, of the condition of their pardon—that is, to “plead their pardon” at the bar of the court. Although it is unclear from the sources whether or not the respites were still obliged, as they had been down to the 1690s at least, to present the most overt symbol of deference—kneeling while pleading their pardon—the symbolic significance of this procedure seems still to have been thought important, even if it had become largely a formality.

Legal historians have turned with renewed energy in recent years to the project of fleshing out the myriad rules by which the common law of the free labor employment contract structured social relations in nineteenth-century America. Of course, labor relations have always been prominent in the literature. The German sociological tradition has long taught us to see in the legal protection of property rights a source of coercive power over the working classes. And for decades now, historians have studied the great nineteenth-century labor conspiracy cases, which generated leading cases and opinions by judges such as Shaw and Holmes. But there is a new wrinkle in recent accounts of nineteenth-century labor law. Much of the law of property, contract, and tort bears a relatively self-evident (though still too infrequently remarked on) relation to the relative bargaining power of the parties to an employment contract. Property rules, along with a whole host of attendant tort doctrines such as nuisance and trespass, allocate resources among parties. As Robert Hale observed long ago, property rules set the coercive power of A to exclude B from those resources that belong to A, whether A be a prospective employee excluding an employer from the employee's labor power, or an employer excluding a would-be employee from the means of production. In similar fashion, rules of contract and tort that define the weapons that parties may deploy in competition or bargaining also shape the relative bargaining power of social actors. Thus, doctrines of duress, fraud, unconscionability, and adequacy of consideration, and the law of labor conspiracies and competition all create immutable background rules (or sometimes inalienable entitlements) that have considerable impact on bargaining power. In Halean language, we might say that the law of duress, for example, coercively precludes the strong from forcing the weak to consent to a particular deal, or that the doctrine of fraud coercively precludes the slick from outfoxing the dupes.

In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.”

In 1804 Leonard De Manneville, a poor French emigrant to England, forcibly entered his wealthy but estranged wife's house, wrenched his eight-month-old daughter from her mother's breast, and absconded with the naked child in an open carriage in inclement weather. When Mrs. De Manneville applied to King's Bench for a writ of habeas corpus, Lord Ellenborough affirmed what he claimed was the well-known rule—that a father was entitled by law to complete custody and control over the children of a marriage and could even prohibit all access by a mother to her children. Frustrated by the law courts, Mrs. De Manneville turned to the self-proclaimed champion of the oppressed, the equity courts, only to find that equity would not interfere with a father's right to custody unless the child had property and was in immediate danger of life and limb. Lord Eldon agreed that “the law is clear that the custody of a child, of whatever age, belongs to the father.” Because Mrs. De Manneville refused to sign over property in her separate estate or execute a will in his favor, her angry husband threatened to prohibit his wife from ever seeing the child again and even to remove the child to France. The law supported his right to carry out his threats.