Reconstruction was an uncertain time in New York City, the nation's foremost metropolis, riddled with political corruption and rocked by popular protest. Stabilizing efforts took numerous forms, including the brutal suppression of workers' rallies and the prosecution of municipal politicians and officials. Public faith in the criminal justice system and its capacity to prosecute and punish criminals had also reached a low ebb by the 1870s, prompting the state government to investigate the district attorney's office in New York County and its court system. In the words of a veteran member of the city's criminal bar, the “deplorable uncertainty” of punishment was making “a mockery of justice.” A Columbia University medico-legal expert agreed, claiming that murder, “if not yet cultivated as one of the fine arts … [was] a matter of daily occurrence.” High-profile trials in the wake of the Civil War tested public and professional criticism of jury independence, particularly jurors' disinclination to find killers guilty of murder, compounded by defense attorneys' growing use of “moral” and “emotional insanity” defenses. Every time apparently sane killers, such as William McFarland (tried and acquitted on grounds of “temporary insanity” in 1870 for the murder of his former wife's lover) escaped conviction on the basis of questionable insanity defenses, newspapers announced “the insanity dodge,” and medico-legal experts squabbled over the growing problem of “feigned insanity.” Occasionally Manhattan's murderers did face the gallows, especially the poor and friendless, as the execution of William Foster in March 1873 confirmed, but it seemed that well-financed and well-defended murderers, like Edward Stokes, murderer of financier Jim Fisk, could exploit the technicalities of the law if the vagaries of medicine failed to secure acquittals. A justice system of this sorry character had little hope of deterring would-be murderers, the New York Times despaired: “MURDER AND HANGING-Examples Wanted-Strangle All Our Murderers Together.”

What role did the Roman legal concept of res nullius (things without owners), or the related concept of terra nullius (land without owners), play in the context of early modern European expansion? Scholars have provided widely different answers to this question. Some historians have argued that European claims based on terra nullius became a routine part of early modern interimperial politics, particularly as a response by the English and French crowns to expansive Iberian claims supported by papal donations. Others have countered that allusions to terra nullius marked a temporary phase of imperial discourse and that claimants relied more often on other rationales for empire, rarely mentioning res nullius or terra nullius and often explicitly recognizing the ownership rights, and even the sovereignty, of local polities and indigenous peoples.

James I's declaration to the Parliament of 1621 was quickly followed on March 31, 1621, by a proclamation abolishing “bills of conformity”—a remedy for insolvent debtors in the English courts of equity. MPs had raised conformity as a grievance early in the session, and debate was one-sided. James's admission, and the proclamation suppressing conformity that followed, explained that debtors exhibited the bills for “no other end or purpose, but to defeat or delay their just and honest Creditors.” Conformity was “so great an evill” that it had encouraged “wilfull Bankerupts,” caused a scarcity of money, and triggered a trade depression. A statute passed in the Parliament of 1624 closed the remaining loopholes and abolished conformity.

At the New York Legal Aid Society's twenty-fifth anniversary banquet in 1901, Arthur von Briesen, the Society's longtime president, ended the evening with the following acknowledgement: “Before we separate I beg to be permitted to say a few words on … the valuable aid which the Society has received from the women of New York. I want you to understand that without them we could not have prospered, without their assistance we could not have done the work… . Their energetic efforts in our behalf, their clear understanding of the duties … has enabled us to increase not only the forte and our power for good, but enabled us to create a special branch in which the cases of women can be specially considered by an able lawyer who is also a woman.” Here Briesen publicly recognized women's efforts on behalf of legal aid as benefactors, supporters, volunteers, and lawyers. The audience that evening would not have been surprised to learn that a woman lawyer now would be providing legal services to women clients, for this was not a new phenomenon. The Society already employed a number of women lawyers. Furthermore women formally untrained in law, but nonetheless acting as lawyers, had prior to the turn of the century provided legal services to poor women through New York City's Working Women's Protective Union (WWPU). As I demonstrate, the origins of legal aid lay in the provision of legal services to poor women—often by other women.

The printing press was recognized by early modern commentators, just as it has been by historians, as an important invention that had profound effects on the arts and sciences. Legal historians have not missed the potentially transformative effects of printing—not only might lawyers found heterodox arguments upon the precise words of printed texts, rather than relying upon the “common learning,” but the absence of texts from the “common learning” in the printed canon meant legal historians themselves labored for many years under a misapprehension as to the nature of medieval English law. However, little work has been undertaken on the precise impact of printing upon the English legal profession, particularly in the shorter term. Common lawyers, particularly in the sixteenth century, were a group who increasingly relied upon, and cited, textual material as the foundation of their arguments on all points of law. Over the course of the sixteenth century, lawyers came increasingly to rely upon prior cases, and particularly prior judged cases, as the basis of legal arguments and of the correctness of those arguments. Advocates and judges were all faced with a large, and still growing, body of manuscript material, and a sizeable collection of printed works. Attitudes towards printed material is an important topic for historians of early modern law for suggesting which sources of legal ideas were given more prominence in the period.

At 10:00 AM on September 24, 1943, James F. Lincoln, the sixty-year-old president and owner of the Lincoln Electric Company of Cleveland, Ohio, entered a meeting with U.S. Navy officials who wanted to discuss his company's recent earnings. A former Ohio State University football team captain and active supporter of the Republican Party, the outspoken Lincoln had already made it clear that he objected to the whole proceeding. One of the nation's leading suppliers of welding equipment, Lincoln's company had seen its sales boom since the beginning of World War II, as shipbuilders, aircraft producers, and other prime contractors demanded more welding machines and electrodes. Now, after a year of correspondence and preparations, the U.S. Navy had asked Lincoln to come to Washington to discuss how much of the company's 1942 profits were fair, and how much should be returned to the United States.

Confined alone in a cell in New York's Fort Lafayette in the heat of the summer of 1865, former Confederate naval secretary Stephen R. Mallory had little to do but reflect on the fate of the defeated Confederacy. Convinced that his life might be forfeit if the United States government made good on its threat to try him for treason, Mallory composed a lengthy letter to President Andrew Johnson petitioning for a pardon and seeking to explain his views on the demise of the Confederacy and the fate of the states' right to secede from the Union. While Mallory stressed his opposition to disunion in 1861, on the grounds of its inexpediency, he admitted that he had placed loyalty to his state above his duty as a citizen of the United States. He had “regarded the commands of my state as decisive of my path of duty; and I followed where she led.” Nonetheless, Mallory went on to disclaim his belief in the principle of secession in very striking terms, describing the death of secession in the crucible of the Civil War as the result of a trial by battle. Mallory never specifically denied secession's constitutionality; instead, he told Johnson that because he “recognize[ed] the death [of the Confederacy] as the will of Almighty God, I regard and accept His dispensation as decisive of the questions of slavery and secession.”

For a man who studied, but never practiced law, laws and lawgiving played a central role in the life of James Madison. In a public career spanning forty years, in which he served in the Virginia General Assembly, the Continental Congress, the Constitutional Convention, the United States Congress, as secretary of state, and as president, Madison could be found at the center of events, at one time or another, either establishing, expounding, discussing, interpreting, or executing state or federal law. Even in his long retirement, he had important things to say about constitutional interpretation. In all this activity, vital to the creation and continued well-being of the early Republic, did Madison's status as a law student, but not a lawyer, matter much in his search for solutions to the persistent problems of republican self-governance?

How do we understand the relationship between law, power, and agency in colonial contexts? Broadly speaking, scholarly opinion is divided between those who view law as a core instrument of colonial control and those who emphasize the ways in which the complexities and ambiguities of colonial legal rule created room for maneuver and manipulation. The articles in this forum skillfully advance our insight into these issues by analyzing the workings of the personal law system in British India, with an emphasis on laws related to marriage. My introductory essay briefly summarizes the two primary approaches to the study of law and empire, clarifies the contribution of the articles to the broader literature, and draws out the thematic links that tie the forum together.

On May 17, 1853, a court sentenced Francis Prout of East Stonehouse, Devon, to six months' hard labor for receiving £1 15s. in stolen money. Prout's “lodger,” a Mary Ann Foss, had stood charged with the theft at the local quarter sessions, but during her trial she denounced Prout as a brothel keeper who profited from crimes committed in his house. With no real warning, Prout found himself tried and convicted. An even more alarming surprise followed a few days later, when the local authorities decided to pursue Prout's property. They invoked the ancient practice by which felons forfeited their possessions, claiming not just Prout's moveable goods, as was common, but also his ninety-nine-year leases on two local pubs and the profits from his freehold on a pub and houses in Plymouth. The latter constituted an unusual decision, in part because the inquisition necessary to seize the property would cost about £150, and in this case no interested party stepped forward to pay the fees. But as the chairman of the quarter sessions argued, Prout's property was “chiefly acquired by the wages of prostitution.” Underneath his talk of “fallen women” and “unfortunate creatures” lay a very modern concern with the illicit proceeds of criminal activity. In such a case, the chairman opined, the property in question should be forfeit.

The British Empire created channels for imperially intended movement. Commodities, bodies, and ideas flowed along axes structured by imperial law and technology. Unintended motion also occurred along these same planes. With every legal structure meant to promote one type of behavior came litigants devising strategies to achieve the opposite. Collusion, bribery, forgery, and perjury were favorite ways to manipulate imperial law. The more permissible strategy of forum shopping was another. Forum shopping is the attempt to push one's case into a jurisdiction promising an optimal result when there is ambiguity over the controlling jurisdiction. It reveals the perception among litigants that bottom-up—and sideways—mechanics exist within legal systems. Unlike work on resistance to state law through extralegal means, I here examine the ways parties tried to work strategically within the confines of the legal system to reconfigure their marital situations. Rather than documenting the success of these maneuvers, however, I note their more common failure. The colonial courts usually saw through unconvincing attempts to forum shop. The fact that litigants continued to try reflects the ingenuity, arguably, of the “legal lottery” mechanism at work in British imperial law. Colonial law, and therefore colonial rule, reinforced its hold on subjects by dangling before them the possibility of individual relief through rule-of-law proceduralism.

We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison's intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language. Madison's interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.