What is the difference between advertising and news? This essay examines the rise of this dilemma and its precarious resolution in the formative era of modern advertising and press commercialization in Britain, c. 1848–1914, with particular attention to legal powers mobilized in the process. The essay traces a dialectical process, which began with the midcentury campaign to repeal taxes on the press, one of which was the advertisement duty. The campaign framed advertising as a communication of essential information. Its success gave full reign to advertising in the newspaper press, but also triggered a readjustment: Newspaper owners soon faced a threat to their effective control of the medium; their proprietary power to differentiate advertising from their self-proclaimed business - news - was put to the test. Owners' responses established a hierarchic distinction between news and advertising, along an informational metric: advertising was framed as an inferior kind of information, more biased than news. The hierarchy became embedded as a common sense to the point that the process of historical creation has been forgotten; yet, it asserted a difference between news and ads which had little to hang on in theory and practice, giving rise to challenges which still resonate today.

By the turn of the twentieth century the absence of codified law governing private economic transactions was a key target of foreign and Chinese critiques of the imperial legal system. Expectations ran high that China's first legal transplant, the 1904 Company Law, would lead to unprecedented public investment in large-scale industrial projects. Their disappointment, and the continued dominance of small business in the Chinese marketplace, has been attributed to factors ranging from Chinese cultural aversion to impersonal investment to shortcomings in the law itself. This study shifts our attention to the indigenous practices that company law was meant to supplant, examining the diverse sources of Chinese shareholding practices and the rich menu of options they provided investors. Most importantly, it argues that by the late imperial period shares were well-established as abstract income producing assets that could be bought and sold, creating the possibility of partnership relationships that could be both impersonal and long-lived despite the absence in China of a formal company law. That this tradition did not lead to the emergence of an analogue to the corporation in the West raises new questions about the demand for such entities and the role of transplantation in suppressing indigenous solutions to business problems.

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.

In belle époque France, criminal juries were criticized as too tolerant of crime and too lenient to effectively punish criminals. While the French institution of the jury was under attack by magistrates and other elites, mixed sex juries provided an alternative model. Jury reformers advocated the introduction of mixed-sex criminal juries in France in order to render better verdicts and reduce crime, especially in the areas of infanticide and abortion. The French National Assembly debates over proposed legislation, however, stalled over political concerns with women's truncated citizenship rights. Historical analysis of the types of arguments deployed in this jury reform debate (including archival documents, parliamentary records, and press sources) reveals that reform proponents argued that gender difference-especially in terms of morality and psychology-justified women's admission to juries, particularly in cases of infanticide and abortion. The operation of an unofficial “women's jury” (jury féminin) between 1905 and 1910 in Paris demonstrated women's judicial decision-making capacity. Analysis of this citizens' jury documents the development of a feminist critique of the legal treatment of domestic violence, reproductive freedom, and marriage law publicized in the early twentieth century. This research contribution posits grounds for the re-periodization of feminist legal history as viewed through this case study of women's claims to jury service in Third Republic France.

This article responds to a debate about the clash between canon law and common law positions on whether married women in England could make wills and what freedoms they had in terms of bequeathing property. In particular, it revises the argument that wives largely ceased to make wills c.1450 by arguing that local customs should be given more attention. The article offers a detailed study of the surviving wills in the deanery of Wisbech 1465–77, its linked diocese of Ely 1449–1505, and the probate acta of the Archdeaconry of Buckingham 1483–97, in order to demonstrate that there was regional variation in the decline in married women's will-making. In particular, a focus on court books, which included visitation material alongside the enrolled wills and probate acta, enables more to be said about the kinds of married women who continued to make wills and their motivations. The article argues that in these areas, as well as a continued tendency for wives who had some land or buildings to make wills, married women who had close connections with men who acted as churchwardens or jurors in church courts were also more likely to have their wills proved, even when they had little to bequeath.

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.

In 1788, a Dutch-born minister in upstate New York named Lambertus De Ronde translated the U.S. Constitution into Dutch. Five years later, a legal scholar in the Netherlands, Gerhard Dumbar, produced another Dutch translation of the U.S. Constitution. De Ronde's translation was printed on at least two separate occasions in 1788, and scores of editorial changes between the two printings demonstrate that De Ronde was working to make the text appealing and understandable to his audience. Dumbar, however, disparaged De Ronde's translation for its amateurish character. Dumbar claimed, furthermore, that a legal education, and not experience in an American context, was essential for understanding the Constitution. In an analysis of the context and language of these two early Dutch translations of the Constitution, this article contributes new perspectives on the transnational character and influence of the U.S. Constitution. This article argues that for the Dutch in New York, debates about ratification and interpretation of the U.S. Constitution, were as much concerned with local character and transnational currents as with national politics.

Common law was an all-male system, with one glaring exception: juries of matrons. If a convicted felon requested a reprieve from execution on the grounds of pregnancy, it was the responsibility of a group of twelve matrons to perform an inspection in order to determine if she was in fact pregnant. Matrons were in a position of great authority. Their verdicts were definitive: if they decided a woman was pregnant, then she was sent back to prison. Despite the significance of their role, little is known about medieval matrons and what qualified them to sit on a jury. Were they mothers? Honorable wives? Midwives? The goal of this paper is to argue that matrons had training in obstetrics. This was particularly important for medieval matrons because the quickening (that is ensoulment, signaled by the first fetal movements) did not become the focal point of the matrons' assessment until at least 1348. Before this, the diagnosis was much more medically challenging as matrons had to determine whether a felon had conceived. Overall, the medieval records demonstrate great confidence in medieval matrons and their obstetrical expertise.

This article examines a particularly interesting inheritance case from late-eighteenth-century France to study the intersection of legal practices and Enlightenment ideas at the end of the Old Regime. The case, involving dispute around the estate of a deceased tax farmer, addresses family relations broadly within the specific context of inheritance and spousal assets. The five briefs produced on appeal to the Parlement of Paris show particular engagement with Enlightenment themes of reason, nature, and sentiment. The family was a locus of particular interest in eighteenth-century France because of its implications for social relations and its connection, through inheritance, to royal sovereignty. However, family law has been primarily studied from the perspective of practices, whereas the present article focuses on ideals. The article argues that the courtroom was an important site where the diverse implications of Enlightenment thought on family law were worked out. The argument that family law was a site for integrating ideals into practices has implications for how we think about the relationship between law and social change, as well as, in particular, the relationship between Enlightenment and Revolution.

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

This article explores Washington's annotated copy of the Constitution and the Acts of Congress (hereafter called the Acts of Congress to remain consist with the label Washington had placed on the front cover) to reveal new insights into his constitutional interpretation. Held in a private collection until 2012, this article is the first to examine Washington's notations in the Acts of Congress for their value as statements about political authority. Washington's comments in the margins of his volume suggest an evolving view of presidential power and constitutional limitations on the executive branch as early as January 1790. His margin notes on the Acts of Congress served as blueprint for his defense of presidential authority and the expansion of the executive branch in the 1790s. Finally, the annotated Acts of Congress inserts Washington's ideas about the presidency into the debate surrounding originalism by revealing how his analysis of the language evolved to meet the demands of governing, leading him to reject the delegates' intent for Article II, Section 2 of the Constitution.

Orit Malka's Disqualified Witnesses, Between Tannaitic Halakha and Roman Law is structured around a puzzle. Why did the rabbinic literature produced in Roman Palestine in the early centuries of the Common Era identify a list of four seemingly disparate types of people—dice-players, usurers, pigeon-flyers, and traders in Seventh Year produce—as disqualified from giving testimony in court? This argument has important implications, I suggest, for all legal systems—like most throughout history—that are not structured around a modern, positivist conception of law and of the role of courts.

This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of slavery, it illustrates how legal professionals grasped the public power of constitutional origin stories. To produce meanings and legitimate rulings, lawyers and judges wrote and reproduced narratives about slavery at the Founding, converting ascriptions of original constitutional visions in formal constitutional law. This power derived from the ongoing popular construction of the Founding as a venerated and authoritative moment containing unwritten intentions, understandings, and promises binding upon subsequent generations. The essay argues that these developments belong to the deep history of originalism. By approaching originalism as a form of constitutional politics integrating public memory culture and legal reasoning, the essay locates the central public and juridical dynamics of originalism emerging in struggles over the constitutional identity of slavery.

This short piece is designed to be a response to the article by Orit Malka.

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 the late eighteenth century, American law treated oath-taking as an invocation of divine vengeance for sworn falsehoods. Prospective witnesses who did not believe in God or hell were not allowed to testify. But this strict evidentiary rule survived only a few more decades. Gradually at first, and then with growing speed, the theological underpinnings of oath-taking eroded across the United States in the early nineteenth century. The story of this transition, only vaguely appreciated in the current literature, illuminates and weaves together several important strands of nineteenth-century social and legal history. The common-law rule, it turns out, came into escalating conflict with American religion, particularly after a liberal offshoot of Calvinism began rejecting the existence of hell. By prevailing founding-era standards, being unable to testify did not impede or punish the exercise of religion, allowing the rule to survive an initial volley of legal challenges. But as reform efforts mounted, a neutrality-based view of religious liberty and an egalitarian conception of civil privileges began to supplant the earlier constitutional settlement. By the mid-nineteenth century, evidence rules throughout the United States no longer required belief in hell, and almost half of the states allowed atheists to testify. This transition also prompted the first widespread rethinking of American evidence law, shifting its foundational principle from reliance on the inviolability of oaths to confidence in the jury's fact-finding capacity, and laying the groundwork for further liberalization in the 1850s and 1860s that allowed testimony from black witnesses and from interested parties. Moreover, the controversy about religion-based exclusions led to a new understanding that barring testimony from particular minority groups effectively denied those groups the protection of the law.