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 1899, Levi Edwin Dudley, the American consul at Vancouver, complained about the ways that Canadian and American police officers enacted justice along their shared border. During one of Dudley's investigations into alleged abuses, he spoke with a Canadian officer about the ways that local agents on both sides of the border approached their jobs. The officer, speaking under conditions of anonymity, noted that “on the border here we must do things in an irregular way in order to preserve the peace.” The ability of criminals to move back and forth across the line forced American and Canadian officers to “‘stand in’ with each other, [or] we should have the country filled with desperadoes.” American officers transferred criminals over to Canadian agents without proper clearance and Canadian officers later returned the favor. This system of irregular justice utilized informal prisoner exchanges built on local understandings, professional courtesy, and mutual concern to circumvent the slow, uncertain, and expensive extradition process. For Dudley, this kind of behavior threatened the liberty of citizens in both countries. For the officers tasked with policing a region of bisecting jurisdictions, it was a necessary evil.

This article reviews and reflects on the use of the geographic information system (GIS) as a tool, or geographic information science (GIScience) as a research methodology, and associated techniques of analysis in an empirical study-in-progress on the law and history of early twentieth century British Hong Kong. The article begins by introducing the study and its objectives, as well as the rationale for adopting GIS/GIScience as one of its research methodologies. It then highlights the preliminary findings of the current project and compares them with those of earlier research on the legal history of early twentieth century Beijing using GIS. The article also discusses the difficulties involved in adopting such a digital tool and methodology in historical research. It concludes by reflecting on what GIS can help scholars understand about the social history of law in Hong Kong, beyond what is already known, and how specialists in law, history, and geography can collaborate in a digital law and history project involving the use of GIS. This article also gives an overview of the use of GIS in conducting empirical research in the humanities (including but not limited to history and legal history research) and points to digital sources and web sites useful to researchers who may need tools and data to launch a GIS study in law and history.

This article examines how ideals of contract freedom within the women's rights movement challenged medical and medical jurisprudence theories about women between 1870 and 1930. Throughout this period, medicine linked women's intellectual incapacity with problems rooted in their physical bodies. Doctors opined that reproductive diseases and conditions of pregnancy, childbirth, menstruation, and menopause rendered women disabled, irrational, and inherently dependent. Yet at the same moment, the elimination of the legal disability of coverture, and new laws that expanded women's property and earnings rights contributed to changing perceptions of women's public roles. Courts applied far more liberal understandings of sanity and rationality in property and contract cases, even when the legal actors were women. Seizing this opportunity, reformers made powerful arguments against doctors' ideas of women's “natural” mental weakness, pointing out that the growing rights to contract and transact illustrated women's rationalism and competency for full citizenship. Most significantly, these activists insisted that these rights indicated women's right to total bodily freedom—a concept that would become crucially important in the early birth control movement.

Soon after Marc Kojo Tovalou Houénou hurried from his tour of the United States to the French West African colony of Dahomey in 1925 to be at his dying father's side, the French governor there launched an inquiry to find out whether Houénou was the French citizen he claimed to be. Houénou had been born in Dahomey in 1887, but had spent most of his life studying and residing in France. Alhough he had only returned to Dahomey briefly in 1921, with his father's death in 1925, Houénou wanted to claim what he saw as his rightful position as chef de famille or head of his extended family in Dahomey. With this title, Houénou would have gained administrative control over his father's expansive wealth in land and property in several towns in Dahomey, and would have been the official representative for his family, especially in interactions with the French colonial government. However, Houénou was already emerging as a thorn in the side of French colonial authorities because of a series of critical articles he had written in Paris about French colonialism. Therefore, when Governor Gaston Fourn found that Houénou had, in 1915, obtained his French citizenship rights, literally permission “to enjoy (jouir) the rights of French citizen,” why was the governor relieved?

What is the relationship between Nazism and natural law—the notion of universal standards, which arise from either God, revelation, nature, rationality, or morality, and which human-made statutes cannot break? In 1946, in the wake of World War II, Gustav Radbruch, one of Germany's most respected Social Democrats and legal philosophers, published his influential article, “Statutory Injustice and Suprastatutory Law,” which grappled with a pressing issue of postwar justice. Should courts deem judges criminally responsible for having earlier convicted defendants, and often sentenced them to death, based on denunciations by family, neighbors, or rivals, denunciations that the Nazi regime had encouraged but that a fair-minded government must condemn? As a matter of jurisprudence, Radbruch set forth his famous formula, which declared that judges must adhere to positive or statutory law, except in rare circumstances in which such law violated fundamental principles of justice. In his words, “[P]ositive law, secured through legislation and power, prevails, even if it is substantively unjust and inexpedient, unless the tension between positive law and justice reaches such an intolerable level that the law as ‘false law’ must yield to justice.” As a matter of history, Radbruch excused Nazi-era judges who had missed his jurisprudential point, because they had succumbed to the legal theory of positivism that had long permeated German legal thinking. “Positivism,” Radbruch wrote, “with its belief that ‘law is law’ rendered the German judiciary defenseless against arbitrary and criminal laws.”

This essay uses the diary of free black barber and Natchez, Mississippi, businessman William T. Johnson as a means to explore the extent to which one black man in the antebellum U.S. South knew the law; how he came to know it; and what role he saw it play in his life and community. In recent years, scholars have paid increasing attention to black Americans' engagement with the legal system in the pre-Civil War U.S. South and have undermined the notion that black people were legal outsiders. In particular, they have shown that African Americans in the slave South were legal actors in their own right and were legally savvy. Yet what does it mean when scholars say that free blacks and slaves knew how to use the law? This essay uses Johnson's diary to demystify the phrase “to know the law” and shows that we speak of “knowing the law,” we speak of a remarkably complex and uneven phenomenon, one best mapped on a case-to-case basis. Understanding what it meant “to know the law” sometimes requires examining an individual's personal theory or hypothesis of what law does for them.

In 1859, after the death of his mistress, a slave named Mat Fine was taken to the Jefferson, Kentucky, County Court House “in the inventory of Lucy Fine's estate as her property.” There, he was inventoried along with her other possessions. Only a few years later, just after the Civil War, Fine returned to the local court house as a defendant in a civil case over the money his former mistress had left him in her will. There he stood before the civil court, as a person, rather than a piece of property, boldly laid out the terms of the will, and claimed his portion. Both the local court and state supreme court ruled in his favor.

The study of changing legal conceptions over time, as they manifest themselves in the day-to-day practice of the courts, has proven to be one of the most rewarding, albeit arduous, areas of inquiry in law history. Court records provide unique insights into an otherwise invisible flow of legal understandings in the past and into common people's sharing or contesting those views. This article, based on the court records of domestic violence and rape in the Arecibo Superior Court from 1860–1895, permits revealing insights into the ways in which these offenses were shaped, as legal concepts, and into magistrates' and common people's constructions of gender. It studies criminal law administration in the Arecibo region and its connections to women. The Arecibo judicial district included nine municipalities on the northern coast and interior of Puerto Rico. Its records comprise a collection of thousands of handwritten documents left in extremely fragile state by humidity and poor conservation. They constitute a very large sample of the judicial work in the region.

During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.

When Anthonis Van den Wyngaerde executed his sweeping panorama of London in 1543, he drew some two dozen ships in the Thames, but only four of them downstream from St. Katherine's Dock. A century later, however, Wenceslaus Hollar carefully represented well over a hundred seagoing vessels in a ribbon of masts winding down river as far as the eye could see. By the 1650s a mariner noted the difficulty of navigating the Thames at low tide, especially during “mackerel time,” and Admiralty Judges at Doctors' Commons near St. Paul's were hearing complaints that congestion in the river was endangering London's environment. Petitioners alleged in 1658 that Jenkin Ellis, a shoemaker and wharf owner, had so exploited his foothold of just ten yards along the north shore of the river, by selling permission to anchor ships eight-and ten-abreast, that the entire bank from St. Katherine's Stairs to the Dock was ruined. It had once been, said witnesses, a “fair sandy ground” where “people might pass on foot,” where watermen could “wax and tallow their boats.” But after Ellis had arrived in 1640, the bank slowly turned to “mud…ooze and dirt,” and “the current of the Thames near shore” where the ships lay was now so “hindered…that if not timely prevented,” the river would be “choked up.” Fires carelessly tended aboard the ships when they were grounded at low tide threatened houses in the entire precinct. When riding at anchor near the shoemaker's wharf, the vessels forced lightermen to row in midriver “against the strength and current of the tide.”

The rising number of ships in English waterways had apparently reduced everyone's margin for error in the seventeenth century. For collisions in the Thames and elsewhere were providing the civil lawyers of London's Admiralty Court with a stream of cases. Ironically, this litigation, it is argued here, reveals both the resourcefulness of England's maritime judges and the major cause of a decline in their authority during the late Stuart decades.

I will summarize my reactions to Hackney's article, then elaborate on them. First, the paper mistakenly interprets an analytical categorization used by modern economists distinguishing efficiency and distribution issues as a politically biased convention. Second, it fails to appreciate a crucial distinction between prices or incentives as motivating devices and compensation to victims or aggrieved parties as a form of social redistribution. Finally, it misreads the intellectual history of the modern law and economics movement. Far from being a byproduct of an antistatist academic economics establishment, law and economics began as an eccentric subfield of economics, cut off from the discipline's postwar mainstream.

The contemporary American will to punish is simultaneously in disarray and experiencing dramatic expansion. Crime, despite the ambiguities of its statistical measurement, remains a central focus of contemporary politics. Notwithstanding a “crisis of penological modernism” that has undercut traditional explanations and justifications for the penal apparatus, prison construction continues at an accelerated pace while proposals for increasing the severity of juvenile punishments seem omnipresent. Criminological discussions continue to stress the technicalities of the problem of punishment while larger social issues remain marginalized. In this situation, the evident problems of the criminal justice system are transmuted into programs for increasing its reach and power.

So portentous a title as I have contrived for tonight's lecture ought to come furnished with an appropriately bombastic beginning. In fact, it does not. Instead of concentrating on a beginning, I thought that we might more profitably focus our attention on the beginning, that is, on a time long before the sophisticated legal/administrative system of England's high middle ages had evolved. It will be interesting to get what peeks we can at the jurisprudential assumptions of, say, preconquest Englishmen. As Tom Green has recently demonstrated in his book on the criminal jury, these assumptions could exhibit a durability that had functional consequences for many centuries. If through the jury they could prevail against contrary official versions of what the substantive law was, as Green has shown, how much more potent could they be when the government was not inclined to oppose their effectuation?

The purpose of this article is to examine socialist justice “in action.”Specifically, it looks at the Comrades Law system established in 1920s Palestine under the auspices of the General Federation of Hebrew Workers in Palestine. It finds that, regardless of original intentions, the Comrades Law quite rapidly became a quasi-state apparatus, displaying a clear bias in favor of institutional interests over those of individual workers. The argument, therefore, is that rather than becoming a liberating, alternative form of justice, this form of socialist justice ended up reinforcing existing relations of power and working as a mechanism of bureaucratic control.

The historiography of work-related accidents in nineteenth-century Ontario is a product of two complementary but as yet unsynthesized lines of inquiry. On the one hand, legal historians have focused on the genesis of judge-made and statutory law respecting the liability of employers for the work-related accidents of their hired labor. Considerable light has been shed on political and ideological as well as formally “legal” factors that shaped judicial and legislative decision making concerning personal injuries at work. However, the legal historiography of the Victorian Ontario workplace pertains mainly to the law and those who made the law, rather than those subject to it. These studies of the dynamics of legal change, important as they are, lack a firm basis in tangible sociohistorical experience.

Shortly after 3 P.M. on February 27, 1888, Eddie Dwyer, one of the young employees at Greene's Boot Heel Factory in Chicago, began to clear empty sacks out of a closet in the rear of the factory so that coal could be loaded into the room. After pulling out roughly five sacks, Eddie called out that there seemed to be something else in the closet. Investigation established that the something else was the body of another employee, fourteen-year-old Maggie Gaughan, who had been missing all day and apparently had been hacked to death with the hatchet found beneath her body. Suspicion quickly centered on the factory foreman, a seventeen-year-old African American named Zephyr Davis, who was away from the factory on an errand at the time the body was discovered. That suspicion became certainty when Davis did not return from the errand, driven away, as he later admitted, by the crowds he saw gathered outside of Greene's when he returned.

The history of race in the nineteenth-century United States is often told as a story of black and white in the South, and white and Indian in the West, with little attention to the intersection between black and Indian. This article explores the history of nineteenth-century America's “little races”—racially ambiguous communities of African, Indian, and European origin up and down the eastern seaboard. These communities came under increasing pressure in the years leading up to the Civil War and in its aftermath to fall on one side or the other of a black-white color line. Drawing on trial records of cases litigating the racial identity of the Melungeons of Tennessee, the Croatans/Lumbee of North Carolina, and the Narragansett of Rhode Island, this article looks at the differing paths these three groups took in the face of Jim Crow: the Melungeons claiming whiteness; the Croatans/Lumbee asserting Indian identity and rejecting association with blacks; the Narragansett asserting Indian identity without rejecting their African origins. Members of these communities found that they could achieve full citizenship in the U.S. polity only to the extent that they abandoned their self-governance and distanced themselves from people of African descent.