Susan Reynolds has written a typically wide-ranging, and thought-provoking, article about the process of transition from what she calls “the diffused, undifferentiated, customary law” that was characteristic of Western Europe in the early medieval period to the various different forms of “professional law” that were characteristic of the higher courts of Western Europe in the later middle ages. This is a process that she characterizes, surely correctly, as an “important stage of legal history,” for it was only as an end result of this process of transformation that there emerged law courts and legal procedures and substantial bodies of legal rules that are recognizably the distant ancestors of their modern European and American counterparts. It was also this process of transformation that changed for ever the relationship between law and the society that this law regulated and in which it was embedded in Western European societies. Her article makes no claim to be a definitive study of this process. It is more a pointer to the work that still needs to be done to enable full transnational comparisons to be made between the different ways the process happened within different legal systems and between the different systems that were created through these changes. She does, nonetheless, state some tentative conclusions and point to what she sees as some of the prime factors in bringing about the transformation.

Legal historians have had an ambivalent relationship with new technology. As students and spokespersons of the somewhat-stodgy legal past, our sympathies have predictably been with traditional methods of doing things rather than with the latest and greatest devices of our own age. In the twentieth century we have tended to champion writing and books more than radio, television, and computers. Today we may use new tools to help us create our scholarship and even to help us teach, but like most of our academic colleagues in law and in history we generally employ those tools as extensions of established media instead of exploiting their potential to deploy information and develop ideas in new ways.

The importance of voluntary associations is apparent to all who study the development of American society in the nineteenth century. Observations made by the perceptive nineteenth-century traveler Alexis de Tocqueville have become an obligatory cliché in historical writing on the subject:

Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial and manufacturing companies,… but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools. If it is proposed to inculcate some truth or to foster some feeling by the encouragement of a great example, they form a society. Wherever at the head of some new undertaking you see the government in France, or a man of rank in England, in the United States you will be sure to find an association.

The process of law enforcement helped to shape the state in the Middle Ages. This article uses an extensive array of court records to provide the first detailed account of royal efforts to police the illegal export of wool in mid-fourteenth century England, when the wool trade was subjected to unprecedented levels of taxation and discussed in moral, as well as fiscal, terms. It shows that these efforts remained heavily centralized in terms of both personnel and institutional form when many other areas of royal law enforcement were becoming increasingly devolved. The article then situates this centralized enforcement form within contemporary criticisms of royal taxation, the place of the royal courts in the wider legal geography of commercial regulation, and the localized dynamic underpinning many legal processes. It argues that the enforcement process was shaped and, indeed, blunted by a critical debate over the extent of royal power and its place within England’s “moral economy.” By situating the regulation of the wool trade in this series of regulatory and economic contexts at a particularly important moment in the development of the late medieval tax state, this article reveals wool smuggling to be a subject of wider significance to historians interested in the nature and—particularly—the limits of royal power and royal law in medieval England.

In mid-1950s Britain two significant events occurred in respect of the doctrine of judicial neutrality in that country. In the first, the Lord Chancellor of the day, Lord Simonds, had refused permission for the experienced and well-known senior judge advocate, Lord Russell of Liverpool, to publish his sensational history of Nazi war crimes, The Scourge of the Swastika, so long as he (Russell) continued to hold judicial office. For Simonds was insistent that the judiciary must keep their counsel on virtually any matter outside the courtroom, a view shared both by his immediate Labour government predecessor, Lord Jowitt, and by his Conservative government successor, Lord Kilmuir. After a public standoff when neither side would give way, the deadlock was broken when Russell, rather than risk being sacked for disobedience, chose to resign his judicial office to a fanfare of publicity in the press and duly published his book shortly thereafter. Moreover, what lent the Russell confrontation an added edge was not just Simonds's complaint that the book could be perceived as anti-German and, therefore, as political. It was that publication at that time could have a damaging effect upon Britain's policy of rehabilitating West Germany within the Western alliance.

During the 1830s, the Bushranging Act and the Vagrancy Act were crafted to prevent crime, revolt and insurrection in the colony of New South Wales. These statutes contained exceptional methods to police and control colonial populations and suspended legal safeguards designed to protect the population from abuses of power. Supporters of the laws argued that extreme measures were necessary due to the emergency of the occasion. Understanding the Bushranging Act and the Vagrancy Act’s enactment and operation, as well as the purposes they were designed to serve and the liberties they infringed to achieve these ends requires attention to local circumstance. A fine-grained analysis, rooted in the peculiarities of life in colonial New South Wales and anchored by the law’s operation on the ground is needed to understand the malleability of British law at this place and at this time. In this article, I argue that rather than a select criminal contingent, the New South Wales’ authorities increasingly feared that the composition of the colony threatened their colonial enterprise. The Bushranging Act of 1830 and the Vagrancy Act of 1835 contained wide coercive and discretionary powers to mitigate the extent of this threat.

One of the key principles of the modern legal state (Rechtsstaat) is the right of all citizens to seek judicial protection against unlawful acts of government officials. It stems from the fundamental principle of the rule of law that asserts that all citizens, including state officials, are equal before the law and have the right to a fair trial. Within this legal framework a distinct field of law, “administrative justice,” governs public litigation against state officials. Its domain of jurisdiction reflects complex philosophical and legal distinctions between the public and private spheres in the modern state. As legal scholars and philosophers continuously redefine the boundary between the public and private spheres, the prerogatives of government officials over the rights of private citizens continue to evolve. The key questions in the debate are as follows. Should the state guarantee an undisputed precedence of citizens’ rights over administration or should it protect its officials from widespread litigation and therefore grant them a certain degree of immunity? Should ordinary courts and laws decide disputes between government officials and private individuals, or should the state provide separate norms, judges, and procedures for administrative litigation? Should punishment for misuse of administrative power be equal to that of the breach of civil or criminal laws? Who and to what extent should be made liable for any damages incurred through misuse of administrative power?

Beginning in the 1840s, high-ranking officials within the East India Company began a concerted effort to confiscate and annex princely states, citing misrule or a default of blood heirs. In response, metropolitan reformers and their Indian allies orchestrated a sustained legalistic defense of native sovereignty in the public sphere and emerged as vocal opponents of colonial expansionism. Adapting concepts put forth by both law of nations theorists and contemporary jurists, they sought to preserve longstanding treaties and defend the princes' exercise of internal sovereignty. The colonial government's failure to adequately define the basis of its modern “paramountcy” invited such creative maneuvering. Reformist opposition to the annexation of Awadh, the dispossession of the Nawab of the Carnatic, and the confiscation of Mysore demonstrates that international law did not simply function as a Eurocentric tool of subordination, but could also provide a bulwark against colonial depredations.

In April 1938 New York's first constitutional convention since 1915 convened in Albany. When it adjourned in late August, one of the amendments slated for a referendum that fall was an “anti-bureaucracy clause,” a provision that would greatly increase the New York courts' oversight of the state's agencies. Although voters rejected it, contemporaries saw the anti-bureaucracy clause as a harbinger of a national campaign against the New Deal. In September 1938 Charles Wyzanski, a former member of the Solicitor General's office, warned Attorney General Homer Cummings that the anti-bureaucracy clause was “the advance signal of an approaching partisan attack on a national scale.” Wyzanski was right: in early 1939 a bill endorsed by the American Bar Association's House of Delegates was introduced in Congress by Representative Francis Walter and Senator Marvel Mills Logan. Just as the New York provision “would have almost certainly destroyed the effectiveness of the state administrative agencies,” the New Dealer Abe Feller warned Cummings's successor, so would the Walter-Logan bill hamstring the federal government. When President Franklin Roosevelt vetoed the bill in December 1940, he declared it part of a national campaign that had begun with the anti-bureaucracy clause.

On Tuesday July 4, 1854, it was hot and humid at Harmony Grove; “the heat of the weather…was extreme.” But this did not deter a large audience from gathering at this location in Framingham, Massachusetts. This was the spot upon which many of them had assembled, under the organization of the Massachusetts Anti-Slavery Society, for the past 8 years. They came by crowded railroad cars (from Boston, Milford, and Worcester), and by horse and carriage from many other surrounding towns, eager to hear speeches by prominent members of the antislavery community. William Lloyd Garrison was not the first to speak, but his actions were the most memorable. Addressing the audience, Garrison held up, and systematically burned, three documents: a copy of the 1850 Fugitive Slave Act; a copy of a recent court decision that ordered the free state of Massachusetts to use its facilities to assist in the capture of fugitive slaves; and a copy of the United States Constitution. This was no mere symbolic act; it conveyed an important part of the Garrisonian argument. Namely, that the Constitution was “a covenant with death, and an agreement with hell.”

One of the most vexing challenges accompanying any attempt to reconstruct the legal history of the family is deciding how much interpretive weight to assign to social factors as opposed to legal factors. “Gloria's Story” is loaded with social history, in part because it focuses on a small group of decidedly non-elite characters. It discusses non-legal matters as big as the impact of wealth concentration on the Guatemalan family and as small as the social significance of home births, as opposed to hospital births, in Quetzaltenango during the 1960s. Nonetheless, the most important factors driving the analysis are legal, not social. The article's central argument—that “modernizing” legal reforms adopted in Guatemala since the mid-nineteenth century have fortified, not weakened, adulterous concubinage—emphasizes the effects of legal change.

In “Gun Ownership in Early America,” published in the William and Mary Quarterly in 2003, Robert Churchill drew on probate inventories and militia records to make the case that arms ownership was pervasive in late colonial, revolutionary, and early national America. Churchill concluded with the observation that “[i]t is time to ponder what these guns meant to their owners and how that meaning changed over time.” In his substantial contribution to this volume of Law and History Review, Churchill takes up that challenge himself and advances the claim that widespread arms ownership engendered a sense of possessory entitlement, and that this notion of right informed constitutional sensibilities respecting guns and the Second Amendment. He acknowledges that a civic republican understanding focused on the militia was central to the framers' conception of the right to arms, but urges that another stream of discourse—individualistic, personal, and divorced from militia linked obligations—was present from the beginning. By the early nineteenth century, Churchill argues, this purely private view of the right to arms had become ascendant.

In recent decades a large amount of scholarship has been devoted to the task of explaining the ways in which European powers claimed possession of indigenous people's territories across the seventeenth, eighteenth and nineteenth centuries. This research has emphasised the role of the law in the dispossession of indigenous peoples. But more work is required to establish the precise roles that the law played in the claiming of land and to measure its importance relative to other factors. In this paper I consider one British colony, South Australia, in order to investigate the changes that occurred in the roles that the law performed over time in the claiming of the indigenous people's lands, and to assess the importance of these relative to the roles played by historical, moral, political, psychological and material factors. I conclude that in this instance at least the role that the law played in the claiming of possession was rather different than that suggested by numerous studies of the claiming of possession as well as much less significant.

In 1859, Cándido Xavier Azambuja appeared before officials in Salto, Uruguay demanding the return of an alleged fugitive slave, Pedro, pursuant to the terms of the 1851 Extradition Treaty between Brazil and Uruguay. According to Cándido's testimony, Pedro had fled from his brother Geronimo's estancia located near the Brazilian town of Bagé close to the Uruguayan border. Upon questioning, Cándido admitted that Pedro and Geronimo had been in the Estado Oriental briefly in 1851 in order to drive several herds of cattle back into Brazil, but argued that Pedro returned with his master and had never been to the Uruguayan Republic before or since. In response, Pedro argued that he was not a fugitive Brazilian slave, but rather a “natural of this republic.” Pedro claimed that he was born in Tacuarembó, Uruguay, and promptly produced the baptismal records to prove it. Pedro went on to note that his entire family consisted of free Uruguayans like himself. He then claimed that Cándido had repeatedly attempted “to make him a slave,” going so far as to remove him forcibly from his home and carry him across the border into Brazil. He requested protection from these continued threats to his and his family's basic rights under Uruguayan law.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law--which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might otherwise seem daunting or anachronistic. Applying yesterday's “no vehicles in the park” ordinance is no less fraught--and no more so--than applying Founding-era legal doctrines.