This is a commentary on five papers included in a forum on the age of consent on the British Empire

When it was established in 1788, New South Wales became the most remote, and most peculiar, of the British empire's overseas colonies. The founding colony of what would eventually become Australia, it was established as a penal colony, a place to send the unwanted criminals of Britain and Ireland. Britain lost more than the majority of its North American possessions in the late eighteenth century. It also lost its principal repository for unwanted felons. New South Wales filled the gap.

The anonymous author of the Laws of Henry I (Leges Henrici Primi) seems to undercut the value of the laws and courts of early-twelfth-century England by making a number of pessimistic comments about the capacity of formal legal proceedings to render justice. At a few points in this treatise, probably completed shortly after 1108, he also voices a preference for friendly agreement. Noting that similar predilections were widespread in medieval Europe, many recent scholars have seized on one of the author's remarks that explicitly compares these two approaches to conflict resolution by proclaiming: Pactum enim legem uincit et amor iudicium, which is translated by L. J. Downer, the work's most recent editor, as, “For an agreement supersedes law and amicable settlement a court judgment.” Ever since Stephen White and Michael Clanchy used this Latin sentence as, respectively, a title and an opening epigram in influential essays written over 25 years ago, it has become a scholarly commonplace, epitomizing what is now often seen as a deep-seated medieval preference for settling disputes through informal compromise. Most scholars that refer to this aphorism, however, use it merely as an illustrative device, without exploring this provocative assertion's meaning in its original textual setting. When considered in light of the Leges Henrici Primi (henceforth: LHP) as a whole and this work's wider context, this statement proves more revealing of complex contemporary attitudes about agreements, conflict resolution, and law than the frequent reference to what is taken to be a categorical declaration of the superiority of friendly concord might suggest.

In her work on the bourgeois male of the nineteenth century, Carol E. Harrison argues that “Although French law made no distinction between male and female associations, administrative practice ignored women in groups.” Most historians accept this point of view—that French administrators generally ignored the associational activities of women, and, indeed, most female groups appear to have garnered little notice from authorities. While Annie Grange suggests that this may be because so few female as-sociations existed throughout much of the nineteenth century, Catherine Duprat has uncovered numerous female societies, especially sociétés de bienfaisance, many of which received more generous treatment from municipal and national officials than their male counterparts. However, she suggests that their official “silence”–the absence of general assemblies and frequent publications, as well as their careful cultivation of the traditional, non-threatening image of dames de charité—kept these associations largely out of public view. Furthermore, for the most part, those female associations that did exist lacked visible political and financial clout.

At the time of the Reformation in the 1560s Scotland and the Netherlands already had long-established commercial links. Scots soldiers fought in the wars that ravaged the Low Countries and much of northern Europe in the two centuries after Calvinism gained a foothold. Goods, people, and ideas were readily exchanged in the North Sea basin. With the foundation in 1575 of the avowedly Protestant University of Leiden, academic and intellectual intercourse were added to trading ties. By the mid-seventeenth century Leiden had an international reputation for legal and medical education. Expatriate Protestant churches were established in the early seventeenth century, notably the Scots kirk, Rotterdam. There were nineteen English and Scottish religious communities in the Dutch Republic by the end of the seventeenth century.

Australian legal history has only emerged as a field of scholarship in its own right in the last twenty years. Prior to that, Australian legal history tended to be written and taught as a footnote to the great sweep of English legal history—the history of the king's courts, the common law and equity, and major nineteenth-century statutory reforms, with a chapter at the end about the classification of the Australian colonies as “settled” colonies, and the consequent reception of English law. This year (2002) sees the twentieth anniversary of Alex Castles's groundbreaking work An Australian Legal History, the first book to take Australian laws and legal institutions as its entire subject matter. It is also the twentieth anniversary of the first Australian Law and History Conference. The years since 1982 have seen the advent of the Australian and New Zealand Law and History Society, increasing attendances at its annual conferences, the establishment of the Australian Journal of Legal History, the completion of a number of Ph.D.theses in the field, and the publication of further influential texts and edited collections by (among others) the authors of the two articles featured in this forum. Two of the most productive strands in this developing literature have concerned the history of colonization and the dispossession of indigenous peoples and histories of women and gender relations in law, although these are by no means that only areas that have been explored. Running through much of this literature, too, are themes of imperial-colonial relations, and relations between law and colonial economies and societies, particularly prior to federation in 1901.

The words of Henry Bellenden Ker, Law Commissioner, quoted as the title of this response, were truer than he knew. In protesting that the commissioners' project was less radical than was alleged by the opponents of codification, he sought principally to gain parliamentary time and space for consideration of the commissioners' work. However, his words contain a deeper vein of truth. The work of the law commissioners has been praised and criticized, celebrated and ignored, over the past one hundred and fifty years, but never yet properly understood. Even as the commissioners' reports have been plundered by successive generations of legal scholars in search of doctrinal and theoretical support for their own very contemporary concerns, there has been a continuing neglect of the commissioners' overall project and little attempt to link it to the significant transformations in punishment and the administration of criminal justice that were occurring in the same period. Accordingly, any reassessment of the commissioners' work should address these two issues: understanding their project as a whole and placing codification within the general historical context of the modernizing of the state and institutions of criminal justice. It is these two concerns that the commentators address in their responses.

At the close of World War II (WWII), Winston Churchill suggested summarily executing the remaining Nazi leadership. Franklin Delano Roosevelt disagreed, insisting on prosecuting them in an international military tribunal. This is considered the “birth” of International Criminal Law (ICL), following a consensus that “[t]he Nazi atrocities gave rise to the idea that some crimes are so grave as to concern the international community as a whole.” A few earlier instances of penal action against violators of the laws of war are acknowledged, but they are dismissed as unrelated to current ICL, because (presumably) these cases are sporadic domestic legal actions that lack a common doctrine.

In the early 1970s, the executives of the First National Bank of Boston spent hundreds of thousands of the bank's dollars on ads opposing statewide efforts to raise their personal income taxes. When frustrated Massachusetts legislators banned this sort of corporate spending, the executives sued, arguing that “corporations have the same First Amendment rights as individuals.” In First National Bank of Boston v. Bellotti, the Supreme Court held for the first time that the First Amendment protects all political speech, even ads paid for by a corporation. Surprisingly, the first corporation to take advantage of this decision was not the bank, but the city of Boston--a municipal corporation that spent nearly a million dollars on a new referendum in the fall of 1978.

This article discusses the history of the 1978 referendum, one pitting municipal corporations against business corporations. It argues that the referendum and the discourse surrounding it made it intuitive for Bostonians that all corporations, banks and cities, are representative institutions. Corporations can “speak” only by spending money, and the leaders of Boston and the bank justified spending other people's money by pointing to the internal elections that put them in office. But voters were skeptical of the argument that “corporate democracy” alone could guarantee that elected executives spoke with the consent of the people they purported to represent. The article offers a novel contribution to the historiography of modern business and politics: a legal history of how corporations--municipal and financial--became politicized in the wake of evolving First Amendment free-speech doctrine.

When Thomas Jefferson assessed the pros and cons of legalizing divorce before the American Revolution, he came out firmly on the side of divorce. “No partnership,” he declared, in a rationale that prefigured the Declaration of Independence, “can oblige continuance in contradiction to its end and design.” Among the few misgivings he had, however, was the problem of dividing marital assets, and while he was convinced a man could get a wife at any age, he was concerned that a woman beyond a certain age would be unable to find a new partner. Yet he envisioned divorce as a remedy for women. A husband, he noted, had “many ways of rendering his domestic affairs agreeable, by Command or desertion,” whereas a wife was “confined & subject.” That he assessed divorce as a woman's remedy while representing a client intent on blocking a wife's separate maintenance is not without irony. Still, in a world where the repudiation of a spouse was a husband's prerogative, he believed that the freedom to divorce would restore “to women their natural right of equality.”

This is an introduction to a scholarly forum that is an outcome of the workshop entitled Cultural Expertise in Ancient and Modern History held in Oxford in July 2018 and aims to make explicit the interdisciplinary components of cultural expertise from a historiographical perspective in order to open up the discussion to the history of law.

On January 24, 1913, the trustees of the Dalcho School, a segregated, all-white public school in Dillon County, South Carolina, summarily dismissed Dudley, Eugene, and Herbert Kirby, ages ten, twelve, and fourteen, respectively. According to testimony offered in a subsequent hearing, the boys had “always properly behaved,” were “good pupils,” and “never …exercise[d] any bad influence in school.” Moreover, the boys’ overwhelmingly white ancestry, in the words of the South Carolina Supreme Court, technically “entitled [them] to be classified as white,” according to state law. Nevertheless, because local whites believed that the Kirbys were “not of pure Caucasian blood,” and that therefore their removal was in the segregated school's best interest, the court, in Tucker v. Blease (1914), upheld their expulsion.

Nowhere in legal history has the nexus between past and present received more attention in recent years than in the study of slavery. The memory of slavery has become a field of study in itself, and competing histories of slavery have animated contemporary legal and political debates. Today, new histories of capitalism have further illuminated the central role of slavery and the slave trade in building the modern Atlantic world. Across Europe, the United Kingdom, Africa, the Caribbean, and the United States, new memorials, museums, and commemorations of slavery and abolition have brought new kinds of public engagement to the slave past. In the era of Black Lives Matter, understanding the connections between that past and the present day has never seemed more important, and historians are struggling with the question of how to engage the present in a historically nuanced way. One kind of engagement between past and present, among historians, lawyers, and activists, has been to draw connections between slavery in the past and in the present.

As Daniel Hulsebosch and Ruth Paley show in their perceptive and helpful comments, Somerset's Case raises questions about several dimensions of the nature of British imperial slavery. As to those dimensions, we share considerable common ground. I agree with Paley that racism was an important element in the treatment of black slaves in England and in its colonies. Hulsebosch is correct that in the late eighteenth century protecting liberty in England by keeping England free from slavery could co-exist with the willingness or desire to maintain colonial slavery. However, as discussed below, the significance of the Somerset decision goes beyond racism and metropolitan protection.

This symposium issue is first and foremost about crossing boundaries. The people readers have met in these pages—enslavers and enslaved, traders and purchasers, abolitionists and insurrectionaries—were mobile, and their mobility had consequences. The slave traders who changed flags as they moved across international waters are only the most visible exemplars of this phenomenon. Crossing geographic borders often meant crossing boundaries of race and status as well. All of these articles in one form or another address the question of what it means to cross lines: between “slave” and “free,” “legal” and “illegal,” “past” and “present.”

Taking a chiefly quantitative approach to Jewish women's litigation at the Exchequer of the Jews between in the period 1219–81, this article represents the first exploration of Jewish women before the law in medieval England. It contends that, far from enjoying a level of ‘legal sexual equality’ not available to Christian women, Anglo-Jewish women at the Exchequer of the Jews in fact shared many of their experiences of (secular) law and justice with their Christian counterparts. This contention is possible in part because of the greater interest, over the last decade, in pre-modern European women's litigation and the realisation that Christian women of all classes were able to navigate their way around judicial systems in ways that confounded any theoretical legal disadvantages they may have faced. The article variously examines the number of Jewish women litigating at the Exchequer of the Jews, their roles in court and representation in the records, and the types of litigation in which they took part. It demonstrates that if we are ever to seek a holistic view of the operation of legal jurisdictions in medieval England, our knowledge must include the experiences of Anglo-Jewish women.

The theory of just war in medieval canon law and theology has attracted to it a large body of scholarship, and is recognized as an important foundation for Western approaches to the study of ethics in war. By contrast, the tradition on war in medieval Roman law has not received much attention, although it developed doctrines that are distinct from those in canon law and theology. The oversight is notable because medieval Roman law on war influenced subsequent tradition, forming with canon law the essential basis for early modern legal thought on war and peace. While the main canonistic contributions to legal theory on war came in the twelfth and thirteenth centuries, Roman jurists added new opinion in the fourteenth and fifteenth centuries, which can be related to the political life of Italy and to the growth of the independent cities. By the fourteenth century, Roman lawyers (or civilians) often considered licit war from a secular and pragmatic perspective, and associated a right of war with sovereignty. Here, I would like to trace the development of this theory, from roughly 1250 to 1450, and particularly a view that sovereigns licitly judged the justice of their own causes, as a remedy for a lack of superior authority.

This paper aims to consider four elements of Burmese constitutional history between 1946 and 1948. The first section considers the negotiations between Burma and the United Kingdom and argues that the debate about whether Burma wanted Dominion status has overlooked the crucial transitional government period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Indian Constituent Assembly in Delhi and Rangoon. The third section outlines the comparative influences on the Burmese Constitution using the digital humanities and illustrates that the biggest foreign influence was the Irish Constitution of 1937. The final section looks at the Burmese political leadership after World War II along two dimensions—at a nationalist level and at an elite level—and traces some of the links between Burma and Ireland.

From the 1830s to the 1930s, elites across the United States increasingly privatized executions and standardized execution protocols. These changes reflected and reinforced a more bureaucratic image of the state as an abstract entity run by professionals operating in rule-bound roles rather than particular actors governing in an unsystematic way. After this period of change, the aesthetics of the execution ceremony had so thoroughly changed that the death penalty had the potential to inspire critiques of the modern state as cold, detached, and callous. It rarely did, however. Changes to state killing threatened to diminish the recognition of human dignity in the nation's execution chambers were countered by melodramatic popular renderings of executions that preserved their sacred, traditional character. Toward the end of this period of change, from 1915 to 1940, playwrights, screenwriters, and journalists maintained executions as events in which the humanity of the state that killed and the condemned who died was constantly foregrounded, even as execution modes and protocols became rationalized and machine-like. Reflecting this ethos, images of condemned men in the nation's collective imagination became disproportionately white.

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntary Heimatlos, precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewish apatrides discovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.