It is conventionally believed that neutral legal principles required antislavery judges to uphold proslavery legislation in spite of their moral convictions against slavery. Under this view, an antislavery judge who ruled on proslavery legislation was forced to choose, not between liberty and slavery, but rather between liberty and fidelity to his conception of the judicial role in a system of limited government. Focusing on the proslavery Fugitive Slave Act of 1850, this article challenges the conventional view by arguing that the constitutionality of the fugitive act was ambiguous; meaning that neutral legal principles supported a ruling against the fugitive act as well as a ruling in favor of it, and that prominent antislavery judges were influenced to uphold the act by a belief that doing so was necessary in order to preserve the Union.

The International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD), was negotiated at the United Nations (UN) during the years 1962–1965. At that period, the UN was an organization so highly politicized and split that it was almost paralyzed, operatively speaking. Human rights codification was a major field whose advancement came to a standstill as a result of the lack of cooperation between UN member-states. Nevertheless, the UN managed to unite around the denunciation of racial discrimination, and unanimously adopted CERD on December 21, 1965. Furthermore, the period of time that elapsed between the presentation of the initiative and the vote on the final version of the treaty was only 3 years; a rather short period of time, UN experience considered.

As with other pillars of the Scottish criminal justice system, the distinctiveness of the Scottish police model from its English counterpart has been widely acknowledged. Its historical development, institutional structure, and level of community support have been portrayed as unique in the United Kingdom. Although rarely heralded as a symbol of national identity in the same way as the Church of Scotland or the legal system, the Scottish police's distinctive customs, traits, and practices have been held up in some studies as a badge of national pride. Often this is for no significant reason other than the fact that police reform in Scotland predated similar developments in England. Municipal police administration has also been depicted as an important symbol of the self-governing nature of Scottish civil society, conferring upon local authorities a wide range of autonomous powers and strengthening their bargaining position with central government in Westminster in London.

Contemporary Western legal systems allow any individual to serve as a witness and to testify in court. However, in legal regimes from late antiquity we find strict limitations on the eligibility of certain types of people to serve as witnesses. Some of the lists of disqualified witnesses are very particular, thus inviting explanation of the reasons for the specific rules of disqualification. Such is the case regarding both Jewish and Roman rules of disqualification, which are the topic of this paper. Tannaitic halakha, composed in Roman Palestine between the first and third centuries CE, includes a list of four characters disqualified from giving testimony, which has long defied interpretation: “a dice player, a usurer, pigeon flyers, and traders in Seventh Year produce”. This paper offers a novel approach to the study of this list, suggesting that the rabbis drew on the Roman legal institution of infamia when constructing their own laws regarding disqualified witnesses. Beyond solving a puzzle relating to Jewish law, the paper also sheds light on the inner logic of Roman law, maintaining that Jewish and Roman rules of disqualified witnesses are commonly grounded in an ethics of self-control. By drawing attention to this previously unnoted theoretical subtext, the paper contributes to a missing chapter in the global history of evidence admissibility rules.

The dependence of colonization on police was a core feature both of settler colonies and of colonial dependencies, from the middle of the nineteenth century to the post–World War I decline of the British Empire. During this long century the functions and structures of colonial police were many and varied. We now know a good deal of their history and of their contribution to Empire. Much remains to be told of the slow processes of policing reform and especially of the politics of key events that shaped—and impeded—emerging models of accountability. In that process we see the influence of key episodes in which singular events are escalated into major political conflicts, of national and international dimension. In this article we examine one such event, the death in 1933 of an Aboriginal woman in the Gulf Country of Australia's Northern Territory, and the subsequent prosecution of a policeman over her death. Such a rare event as prosecution of police for violence against indigenous people demands contextual explanation as well as estimation of the limits on legal accountability for such actions.

The American officials who assumed control of the Louisiana Purchase territory were quite certain about the Spanish legal system they were displacing. “[T]he laws, rules of justice, and the forms of proceeding,” Amos Stoddard reported from St. Louis two weeks after receiving possession of Upper Louisiana on behalf of the United States, “were almost wholly arbitrary—for each successive Lieut. Governor has totally changed or abrogated those established by his predecessor.” Under “the despotism of the Dons,” as Frederick Bates described the preceding four decades of Spanish government in St. Louis and the surrounding area, the residents “knew that they had no rights and that they were absolutely dependent, in all things, on the will and pleasure of the Governor.” In New Orleans Governor William Claiborne described a legal “system in most points incongenial with the principles of our own Government,” one in which “the executives of the collony have often exercised a dispensing power over th[e] Laws, and the people consequently have been habituated to the uncertain operation of rules occasionally modified by the wisdom or caprice of those in power.” In short, this was a government of men, not laws; the task at hand was to get rid of it as soon as possible. As Bates explained to future governor (and ex-explorer) Meriwether Lewis, “we are endeavouring to establish the empire of the laws; and to substitute those laws in the place of the arbitrary Rescripts of proconsular Agents.”

In April of 1873, the United States Supreme Court rejected Myra Bradwell's claim that the right to practice law should be acknowledged as one of the privileges and immunities of United States citizenship. Thus, the first case of sex discrimination to be heard by the Court was resolved against the woman, as would be every subsequent claim but one for the next ninety-eight years.

David Konig has written an important article that makes a welcome contribution to the rapidly evolving field of Second Amendment scholarship. In the essay that forms the focal piece of this forum, Konig argues that two rival, hotly contested interpretations of the Second Amendment fail to recapture the original meaning of the constitutional right to keep and bear arms. To Konig, neither the individual rights nor the states' rights model of the Second Amendment accurately reflects the conceptual universe shared by the drafters and ratifiers of the Bill of Rights. Neither model (and particularly not the individual rights model), Konig maintains, would have made sense to the persons who left behind a now familiar and much-discussed documentary record related to the call for amendments to the Constitution in 1788, the drafting of the Bill of Rights in 1789, and its ratification in 1791.

The penal colony of New South Wales was founded in January, 1788, with a population of convicts, military people, and a few civil officers. The settlement displaced one of the oldest cultures on earth, as English law failed to recognize that the Aborigines had any right to the land they had occupied for 40,000 years. On their first night ashore the women convicts were greeted by mass debauchery that deserved to be recorded by Hogarth, all under a heavy thunderstorm.

In 1816, the mostly-American crew of a slaving brig bound from Cuba staged a mutiny before reaching West Africa, and then sailed on (without a captive cargo) to the antislavery republic of Haiti. Their voyage culminated in a remarkable prize case before the admiralty court at Port-au-Prince. The sailors claimed indignation at the “diabolical” slave trade, hoping to win profits from the condemnation of the vessel and to avoid future prosecution for enlisting in a slaving voyage that was illegal under U.S. federal law. Haitian prosecutors invoked the agreements of the Congress of Vienna, arguing that the trade had been prohibited by the laws of nations. It fell to the admiralty court to reconcile such aspirational claims with Haiti's ongoing struggle for political survival. The brig's journey between the United States, Cuba, Spanish Florida, Cape Verde, and finally Haiti reveals the ways in which slave traders calculated the relative risks of legal penalties against the possible gains from the trade. The records of the adjudication of the case show how Haitian officials developed their own legal strategies for the suppression of the trade, laying the foundations for an escalating campaign to police slaving traffic off of their shores.

It is easy to imagine that on this early morning in 1395, Antonius, realizing the magnitude of his actions, had little time to fabricate a defense or construct a plan. In late fourteenth-century Reggio Emilia, flight was often the most desirable path open to those suspected of perpetrating felonies. Subsequent witnesses in this murder investigation speculated that Antonius fled the territory of the Villa de Vetto before the first light of day less to evade the law than to avoid the wrath of Caterina's relatives. Propelled by the need to escape retribution, Antonius, like almost half the defendants cited by the criminal court of Reggio Emilia, fled rather than appear before the criminal judge.

This article argues that the juror franchise became more restrictive in the years immediately after the Sex Disqualification (Removal) Act 1919 had broadened the jury franchise so as to include some women. It argues that the subsequent restrictions on the jury franchise have not standardly been discussed in the literature on the twentieth century jury because of the lengths taken at the time to present these reforms as merely technical in nature. Only six months after the 1919 Act was passed, a dispute broke out at the Western assize circuit regarding the practice–apparently sanctioned in the Juries Act 1825–of towns which “possessed” their own assizes summoning jurors according to custom, rather than statute. In practice, this meant that the ten “assize boroughs” had not always observed the property qualifications when summoning their jurors. The judiciary eventually prevailed over the Home Office and a series of local officials, ending the assize boroughs' ability to ignore the property qualifications (which kept a disproportionate number of women off the jury). This reform brought its own problems, however, and brought into focus the expense involved in following the burdensome rules for identifying jurors as set out in the 1825 Act. The solution–basing juror qualification on electoral registration–excluded from jury service conscientious objectors, foreigners, and women who satisfied the property qualification rules but lived elsewhere with a male relative.

Just as Virgil linked “arms and the man” in his epic history of Rome's origins, Americans have linked the bearing of arms with their own national origins. Regardless of other uses to which his image has been put, the Minuteman who stands guard at Concord reminds us that he stood his ground in 1775 to stop British regulars from seizing assembled weapons at Concord and disarming the Middlesex County militia. Robert Churchill provides us with an entertaining anecdote of a young man to illustrate his claim that such men actually believed that they were protecting their personal right to keep and bear arms. Asserting that he had become ill, the militiaman was “skedaddling home” after his company's engagement with British regulars at Concord in 1775. Though his captain's wife told him that “you must not take your gun with you,” he retorted, “Yes, I shall.” His refusal to yield his gun, explains Churchill, “transcended its importance in allowing him to meet his communal obligation. The gun was his, and he believed he had a right to keep it.” But this anecdote, though charming, demands closer examination. Like much in Churchill's essay, it reveals that items or statements taken out of context can be misinterpreted and misleading.

The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was “subversive of first principles.” He claimed, “That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied,” adding for good measure: “It is a proposition as self-evident as that black is not red, or white black.” Almost two centuries later, in a provocative 1974 essay called The Death of Contract, Grant Gilmore asserted that the legal doctrine of consideration in contract law and the equitable doctrine of promissory estoppel were like “matter and anti-matter,” and “The one thing that is clear is that these two contradictory propositions cannot live comfortably together: in the end one must swallow the other up.”

Susan Reynolds's article is a culmination and a turning point. It builds on several approaches to medieval law and culture, of which two strike me as especially important. One is a study of legal history as a domain of human activity, especially habitual or routine activity, pursued by a wide range of social groups. The other is a search for the meaning and the criteria of the enormous transition during the central Middle Ages, which Christopher Dawson at the dawn of this subject, and Robert Bartlett in its currently definitive moment, have identified as “the making of Europe.” The first subject exists above all thanks to the work of Reynolds herself, while the second is an outcome of a number of quite distinct scholarly trajectories, spanning several generations. Apart from some suggestive and implicit links, those two subjects have, over the past quarter century, been pursued separately. Reynolds's article brings them together.

It was a simple tale of betrayal. In 1950, a Pennsylvania husband returned home from a business trip to find his wife—known to us today only by her initials CD—having sex with the female athletic director of a local school. This wife was only one of many women caught having sex with other women in the era following World War II. Although many closeted men and women enjoyed vibrant sexual and social lives in gay and lesbian communities, sometimes commanding officers, bosses, and police officers caught and punished men and women engaging in “deviant” sexual activity. Punishments ranged from arrests during a bar raid to a dismissal from a job. A double life in the public sphere was fragile. Scholars have paid less attention, however, to the insecure closeted lives of husbands and wives such as CD. Although certainly not all men and women who engaged in same-sex encounters entered traditional heterosexual marriages, many did. Their motivations for marrying ranged from the hope that marriage would cure same-sex desire to financial concerns. Sometimes, a husband or wife discovered his or her spouse's homosexual infidelity. A potential punitive outcome for this encounter was not an arrest, pink slip, or a dishonorable discharge; instead a spouse could end up in divorce court. Like the federal government, the military, the local police, and private employers, then, divorce courts also had to devise strategies and philosophies with which to deal with the problem of homosexuality.

Debates over constitutional originalism almost always center on meaning. Questions are typically focused, concentrated on the meaning of particular constitutional clauses at the moment of their inception: the Commerce Clause in 1787, the Second Amendment in 1791, or the Fourteenth Amendment in 1868. Given the prevalence of these investigations, theoretical and methodological debates over how to recover original constitutional meaning are concentrated on either the kind of meaning that should be targeted—original public meaning, original intended meaning, or original legal meaning—or how that meaning can be recovered—through conventional legal reasoning, corpus linguistics, or thick reconstruction of historical context. Regardless, virtually all originalist theories of meaning uncritically presuppose the nature of the object possessing that meaning: they take as given what the Constitution itself is and, by implication, what it has always been. Although it might not be clear what the Constitution originally meant, it is straightforward what the original Constitution originally was. It just is the Constitution.

In The Failure of the Word, Richard Weisberg asks how legal scholars can “justify the substitution of imaginative for legal prose.” By way of response, scholars such as Martha Nussbaum and Weisberg have sought to demonstrate the power of literature to better render moral ambiguity and situational complexity than the language of the law. The most attractive images of the art of judgment, these scholars argue, are not to be found in the decisions duly compiled in the Federal Reporter, but in works of the literary imagination. These works, by capturing a world of nuance largely absent from the Manichean terms of law, offer a critical “school of moral sentiments” and, as a consequence, can help the legal scholar to better appreciate the law's exclusion and to extend the law's discursive ken.