In the parliament held at Leicester in the spring of 1414, King Henry V was confronted with a long list of grievances on the part of the common folk of Northumberland, Cumberland, and Westmorland. A formal petition decried the contempt with which the terms of truces made with Scotland and royal letters of safe conduct were treated. The commons further complained that men of the liberties of Tynedale, Redesdale, and Hexham daily committed “many murders, treasons, homicides … robberies, and other misdeeds,” and that “some of the said persons shelter and support many people of Scotland, counselling and comforting [them] in their robbery and despoiling.” Finally, they said, in contravention of the terms of the truce, men of Scotland “also take them prisoner, keeping them … until they make ransom of their own volition, all this with the aid, assent and comfort of the said persons so enfranchised.”

In August 1945, Karl Loewenstein began work as senior expert advisor to the Legal Division of American Military Government (AMG) in Berlin. An eminent German-born and educated political scientist and jurisprudent, Loewenstein had come to assist in the “democratization” of his homeland's Nazified law and legal institutions. It was soon obvious, however, that in its crucial first phase the American legal mission in Germany was in disarray. The development and implementation of American law reform policy was being undercut by ill-prepared leadership, poor planning, and the scarcity of learning about German laws, lawyers, and legal history. By Loewenstein's reckoning, many American officers had been “set to work on problems of which they have not the slightest idea and very little professional qualification.” Critical law reform initiatives had been based upon expedient “over-simplifications” of Nazism and its eradication. By January 1946, his initial misgivings having given way to mordant despair, Loewenstein concluded that the American program for the democratization of the German legal system was irrevocably “lost,” a “failure which stinks to high heaven.” This article sets forth the theoretical and observational bases of Loewenstein's assessment and evaluates its cogency.

Finding emotions in medieval and early modern sources is one of the more difficult challenges currently facing historians. The task of uncovering emotions in legal records is even more fraught. Legal sources were precisely crafted to meet legal requirements and jurisdictional issues. Equally, emotions were not part of the jurisdiction of any court in the late Middle Ages or early modern period and there was no legal interest in eliciting them from litigants. Why then would we begin to think it is possible to find emotions in these legal records? This article invites social and legal historians to begin considering these questions by investigating the emotions in cases brought into the court of Chancery between 1386 and 1558.

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.

In 1813, James Stephen, Jr., a twenty-four-year-old lawyer, was appointed part-time by the British Colonial Office to write legal opinions on the validity of colonial laws. In 1825, he began working full-time as legal advisor to the Colonial Office and held this position until 1836 when he was promoted to the top-ranking post of permanent under-secretary of the Colonial Office, which he held until 1847. During these years, Stephen frequently played a key role in influencing the direction taken by policies and reforms initiated through the Colonial Office. In particular, his important role in shaping Colonial Office “native policy” after the mid-1830s has been documented by several historians, and much has been written about his connection—through his anti-slavery father, Stephen, Sr., and his uncle William Wilberforce—to the famous Evangelical “Clapham Sect” that took a leading role in promoting a number of different humanitarian and social reform causes in the first half of the nineteenth century.

In 1953 a musical titled The Adventures of Nasseradin opened in Tel Aviv. One of its tunes, the “Song of Law,” had music and lyrics so appealing that overnight it became the most popular song in Israel. The subject of the lyric was a tyrant, the Emir of the Kingdom of Buchara. Two brothers were arguing over a pot, and the Emir in his capacity as judge, presided over their trial. His decree: plaintiff and defendant should be executed and the pot thrown into the royal treasury.

Law and the Conditions of Freedom in the Nineteenth-Century United States, the slim volume that emerged from Willard Hurst's 1955 Rosenthal Lectures at the Northwestern School of Law, has attained an iconic status in American legal history. In his 1994 interview of Willard Hurst, for example, Hendrik Hartog mentions that both he and Robert Gordon were led to legal history as a result of reading Hurst's little book. A good deal of the magic of Law and the Conditions of Freedom stems from its undeniable vitality. Certainly, Hurst was after vitality in legal history, surprising Hartog in the 1994 interview by his fondness for Albert Beveridge's life of John Marshall because of its “magnificent job of bringing history to life.”

Emerging critiques of mainstream accounts of secularism reveal the imbrication of the sacred and the secular in ‘secular’ states. In the context of colonial Northern Nigeria, this sacred-secular entanglement, which took the form of the co-option of Islam for the colonial ‘secular’ enterprise, did not leave Islam unchanged. Co-opting Islam for the colonial project necessitated the making of an Islamic Law amenable to the colonial state. With a focus on criminal law, this article narrates the making of a British Colonial Islamic law in Northern Nigeria through the unprecedented expansion of siyasa. Departing from orthodox accounts of Islamic law's reification in colonial Northern Nigeria and heterodox assertions of its erosion by the colonial state, this article argues that neither the reification nor the erosion accounts illuminates the relationship between the colonial state and Islamic law. To show how the colonial state could assert secularism while co-opting Islam, this article presents a narrative of reform that foregrounds the following questions: Who had (and exercised) the power to decide what Islamic law was? How was the exercise of this power justified? How did the exercise of this power fit with the broader colonial project of governing religious difference? What were the consequences of these processes for Islamic law, institutions and colonial subjects?

In 1773, with the empire on the brink of revolt, the Privy Council gave the final ruling in the case of the Mohegan Indians versus the colony of Connecticut. Thus ended what one eighteenth-century lawyer called “the greatest cause that ever was heard at the Council Board.” After a decades-long battle for their rights, involving several appeals to the Crown, three royal commissions, and the highest court in the empire, the Mohegans' case against Connecticut was dismissed. The dispute centered on a large tract of land (~20,000 acres) in southeastern Connecticut, which, the Mohegans claimed, the colony had reserved for them in the late seventeenth century. Concerned that the colony had violated its agreements, the Mohegans, aided by powerful colonists with a pecuniary interest in this tract of land, appealed to the Crown for redress. As a result of this appeal, what had been a narrow dispute over land became part of a larger conflict between the Crown, the colony, and the tribe over property and autonomy in the empire.

The present essay seeks to work at the intersection of law and history, a meeting point where interpretation of the Second Amendment has been more characterized by collision than confluence. Analysis brought to bear on the historical meaning of “the right of the people to keep and bear arms” has coalesced around two competing normative interpretations: either that the amendment guarantees a personal, individual right to bear arms, or that it applies only collectively to the effectiveness of the militia. It is a premise of this essay that both these models are historically unsatisfactory, the products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models—a type of historians' fallacy that David Hackett Fischer has labeled the “fallacy of false dichotomous questions.” Fischer's description aptly describes the current controversy over the historical meaning of the Second Amendment: in addition to being “grossly anachronistic,” its two opposing positions “are mutually exclusive, and collectively exhaustive, so that the there is no overlap, no opening in the middle, and nothing is omitted at either end.” It is not without challenge on just these grounds, however, as a recent call for a “new more sophisticated paradigm” attests. This essay seeks to provide that new model and to do so by grounding the “right of the people to keep and bear arms” in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-century political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain. That struggle nevertheless remains a missing context that prefigured American debates over constituting and guaranteeing local militias in the coequal states of the federal union established by the United States Constitution in 1787 and 1788. Once the time came for seeking a written guarantee of local militia effectiveness in the federal Constitution, the language and substance of this transatlantic legacy had great influence. As experience, they gave political urgency to the drafting and ratification of the Second Amendment; as a theory of rights, they embodied an eighteenth-century individual right exercised collectively.

Kenneth Ledford's and Michael Meranze's insightful comments raise important questions about the nature of legal history in general, and of the history of punishment in particular. According to Ledford and Meranze, modern legal history is social history, to be distinguished from “old-style intellectual history.” A product of the latter “historical method no longer in favor,” “The Right to Be Punished” draws Ledford's and Meranze's criticism for its insufficient “root[s]… in the soil of social history” and for its inadequate “account of the … social basis of the modern will to punish” and “the social embeddedness of punishment.”

In 1847, Raymond-Theodore Troplong, one of France's most distinguished legal minds, presented his recently finished work on debt imprisonment to Paris's prestigious Académie des sciences morales et politiques. He started his narrative with an imaginative reconstruction of debt imprisonment's origins in the “barbaric law” of “primitive peoples.” In such societies, Troplong explained, “the person responds corporally, and principally, to contracted engagements. On one hand, insolvency is assimilated to crime. The debtor who dishonors his word in not paying his creditor differs little from a thief. In dishonoring his word, he has dishonored the gods whom he has taken as witnesses of his oath; his body is therefore engaged by his offense; it belongs to its expiation. On the other hand, in order to make him pay with his possessions, the creditor must seize, first of all, his person.”

The legal and social implications of Hardwicke's Marriage Act, passed in 1753, were of the utmost importance in England. From 1754 onwards a marriage, in order to be recognized as legal, had to be carried out in a very specific, circumscribed manner, ending a period during which “irregular” or clandestine marriages proliferated. Although Lord Hardwicke had been agitating for such legislation for years, it was one case in particular, a Scottish action, which had been appealed to the House of Lords, that precipitated the Act.

The first amendment prohibits Congress from making any law that abridges the right of the people “to petition the Government for a redress of grievances.” This clause reflects many years of practical experience with petitions, both in England and in the American colonies. Unlike the right of free speech, which has attracted much scholarly attention, the right of petition has received little scrutiny from commentators or judges. The scope of the substantive right embodied in the clause is still a matter of dispute.

This article explores a key incident in the history of the right of petition—the congressional imposition in the 1830s of a “gag rule” to prohibit the reception of petitions related to slavery. This restriction on petitions was a turning point both for a change in the meaning of the right and for the procedures permitted by Congress to give it expression. The gag rule effectively quashed the right to petition as it had been exercised for centuries—as a means of communicating the people's grievances to government. Although the right still exists, its traditional usage and meaning “disappeared” in the 1830s.

In September of 1953, eight months before Brown v. Board of Education of Topeka, Kansas would be decided, the Topeka Board of Education voted to abolish segregation in its schools. Some Topekans thought it curious that the school board would vote to abolish segregation when its case defending segregation was pending in the U.S. Supreme Court. When Edward Goss of the Topeka Civic Club asked the board why it hadn't waited for the Court's decision, board member Harold Conrad responded: ‘We feel that segregation is not an American practice.’

In my book The Evolution of Law I sought to give a general theory of legal evolution based on detailed legal examples from which generalizations could be drawn, offering as few examples as were consistent with my case in order to present as clear a picture as possible. I was well aware as I was writing that some critics would regard the examples as mere isolated aberrations and for them and for other readers who, whether convinced of the thesis or not, would like further evidence, I want here to bring forward a few extra significant examples.

Restrictions in law upon the power of testators to devise chattels were the norm in the days both of Glanvill and of Bracton. As Holdsworth put it:

If he [the testator] left a wife alone she took a half; if a wife and children they took, the wife a third, and the children who had not received an advancement from their father in his lifetime a third; … it was only the half or the third which remained over that a man was free to dispose of as he pleased.

As I understand it, Susan Reynolds's article is meant to address the longstanding habit among legal historians of equating professional approaches to the law with the emergence of a school-based study of Roman law. In the course of the twelfth century, she argues, legal practitioners developed their own kinds of expertise that, though less bookish, might have had a practical significance equal to, if not greater than, the learning produced in the schools. Although these observations seem on the mark for Europe north of the Alps, Reynolds errs, I think, in assimilating Italy to this chronological and conceptual schema. Already by the ninth and tenth centuries, there existed in northern Italy a corps of royal notaries and judges who possessed both literacy and legal expertise unparalleled elsewhere in Europe. Distinguished from other laymen by their titles, learning, and even their handwriting, the legal experts already appear to have met the criteria of professionalism generally proposed for the late twelfth century in the rest of Europe.