One of the great, unrecognized ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the “ancient constitution” and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related rights of Englishmen while overseas. “The common law,” Coke declared in Parliament in 1628, “meddles with nothing that is done beyond the seas.” The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. The jurisprudence that gave intellectual shape to colonial resistance before, and to notions of the rule of law after, the American Revolution was not intended by its primary author to benefit Americans. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight.

During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, Jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. Practicing law as well, they collected “notable arrêts” (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of “French jurisprudence” and legally framed a “civil society” that underwrote the claim to political sovereignty as a nation.

In the handbook for Cypriot police officers published in 1896 by the island's British colonial administration, there is a passage that appears at first innocuous but that had important resonances for the development of legal and political statuses in Cyprus of the period. Under the section “Police Duties” and the subheading “Constables,” the handbook notes that “[c]onstables are expected to possess such knowledge of the inhabitants of their District as to enable them readily to recognize them. They are to be instructed to watch unceasingly all persons having no visible means of support, and obtain knowledge of all suspected thieves, idle and disorderly persons, and disorderly houses.”

After a period of Mongolian rule during the Yüan Dynasty (1279–1368), the first Ming emperor, T'ai-tsu, tried to build a new empire on a solid footing. From the start, he paid a lot of attention to legislation as a means of guaranteeing stability in the empire. The emperor's concern for stability resulted in an imperial decree stipulating that the Ming Code, established and adapted under his supervision, had to remain unchanged for the remainder of the dynasty. As social and economic evolutions called for modifications in the Ming legislation, a way had to be found to introduce these changes. This article examines how a number of so-called “precedents,” relating to dissolution of marriage and engagement on the initiative of women and their natal families, were proposed and adopted during the mid-Ming period. By looking into the individual proposals, we will try to find the specific problems that threatened a consistent application and enforcement of these precedents.

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.

The southern part of the African continent has, for nearly a hundred and fifty years, been witness to a set of epic struggles to create within it a single unified state and, within that, forms of citizenship that are both identifiably “South African” and more or less collectively owned. The never-ending nature of these twinned tasks has echoes in contemporary mantras about the healthiness of “nation-building,” just as surely as the underlying anemia remains manifest in the name of a place and a people that are, arguably, still more of an expression of geography than a reflection of a collectively lived experience. Perhaps it is significant that it was only a decade after the discovery of diamonds, in the late 1860s, that these struggles first took on recognizably modern political forms. An early attempt to promote federation among the dominant white settlers was, however, thwarted by the still largely separate identities of the two British coastal colonies (the Cape and Natal) and two inland Afrikaner-Dutch or “Boer” republics (the Orange Free State and the Zuid Afrikaansche Republiek) that sprawled over southern Africa—enveloping, albeit imperfectly, their distinctive and very different indigenous African, imported Asian, and Colored (people of mixed descent) laboring populations.

In January 1930 officials of the Bureau of Immigration testified about the Border Patrol before a closed session of the House Immigration Committee. Henry Hull, the commissioner general of immigration, explained that the Border Patrol did not operate “on the border line” but as far as one hundred miles “back of the line.” The Border Patrol, he said, was “a scouting organization and a pursuit organization…. [Officers] operate on roads without warrants and wherever they find an alien they stop him. If he is illegally in the country, they take him to unit headquarters.”

After the rise to dominance of the neo-classical school in economics in the 1920s and 1930s, legal historians manifested very little interest in economic theory. After the cliometric revolution of the early 1960s, most legal historians expressed declining interest in economic historians. After the rise of Critical Legal History and cultural legal history in the late 1970s and early 1980s, many legal historians showed diminishing interest in the economy. This trend was augmented by the expansion of law and economics as a leading jurisprudence and methodology within the law schools. Most legal historians viewed themselves as part of a camp in the law schools, whether of the humanities oriented scholars, of post modernists, or of critical scholars, who were antagonists of the law and economics camp. These legal historians often identified all economists with law and economics and further disassociated themselves from economic historians. Ironically, the less legal historians consider economic history, economic theory, and the economy itself as relevant to their purposes, the more economic historians are discovering the relevancy of the law and of legal history to theirs. This article suggests to legal historians that the time is ripe to revisit economic history and theory and to reconsider their long-established indifference toward them.

For over 150 years from the early eighteenth century, convict transportation was a primary method of punishing serious crime in Britain and Ireland. Convicts were first sent to the colonies in North America and the Caribbean and then to three newly established Australian colonies on the other side of the world. Conditions were very different between the two locations, yet the fundamental law of transportation remained the same for decades after the process began in Australia.

The object of this article is to draw attention to an area of European legal history that I think deserves more investigation. It is the change in legal practice caused by the transition from the diffused, undifferentiated, customary law of the earlier middle ages to the various forms of expert, esoteric, professional law that dominated the higher courts of the later middle ages. The suggestion that this has not been much studied may seem odd but, though much has been written on the new study of Roman law, those who work on it have tended to concentrate on the intellectual achievements of the glossators and post-glossators, rather than on practice. Practice in canon law has received more attention, notably from legal historians trained in the Anglo-American tradition, but this has not focused closely on twelfth-century origins. The beginnings of English common law have also been much studied and, since it started off as largely a matter of procedures, that has indeed meant looking at practice. The traditional teleology of legal history has, however, prevented much cross-fertilization with the history of other legal systems. One example of the consequent detachment of English legal history is the assumption of some English legal historians that Roman law procedures were followed in what they often characterize simply as “the Continent” more generally and earlier than seems to have been the case in most areas north of the Alps. Both in England and elsewhere many legal historians concentrate on the period from the thirteenth century on, when sources become more plentiful. Meanwhile, social historians of early medieval western Europe, including England, have argued—to my mind successfully, though I am hardly unprejudiced—that early medieval law was not just a weak, ritualized, and irrational response to feuds and violence, but their investigations tend to stop before the professionals took over. The result is that, apart from recent pioneering work on twelfth-century Tuscany by Chris Wickham, the transition in court practice outside England has been neglected.

In 1891, in the Supreme Court of New South Wales, Mrs. Olivia Mayne brought an action for breach of contract against two brothers, theatrical entrepreneurs, James and Charles MacMahon. Mrs. Mayne claimed the MacMahon brothers owed her money for the hire of her property, a boxing kangaroo called “Fighting Jack.” The MacMahons contested her claim, hoping to avoid their obligation by disputing the legally binding nature of the agreement they had made with her. The argument became one about the contractual capacity of a married woman.

In 1954, seventy-four years after the U.S. Supreme Court held that African Americans could not be banned from jury service by statute, and fifty-four years after it ruled that they could not be purposely excluded from venires due to their “race or color” through court, executive, or administrative action, the Court found that Pete Hernandez had been denied equal protection of the laws under the Fourteenth Amendment. His constitutional rights were violated because of the de facto, systematic exclusion of Mexican Americans from the pool of potential jurors—and thus juries—in Jackson County, Texas.

The landmark 1954 decision Brown v. Board of Education has shaped trial lawyers' approaches to litigating civil rights claims and law professors' approaches to teaching the law's powers and limitations. The court-ordered desegregation of the nation's schools, moreover, inspired subsequent lawsuits by African Americans aimed variously at ending racial distinctions in housing, employment, and voting rights. Litigation to enforce the Brown decision and similar mandates brought slow but steady progress and inspired members of various other minorities to appropriate the rhetoric, organizing methods, and legal strategy of the African American civil rights struggle.

Susan Reynolds's article is a culmination and a turning point. It builds on several approaches to medieval law and culture, of which two strike me as especially important. One is a study of legal history as a domain of human activity, especially habitual or routine activity, pursued by a wide range of social groups. The other is a search for the meaning and the criteria of the enormous transition during the central Middle Ages, which Christopher Dawson at the dawn of this subject, and Robert Bartlett in its currently definitive moment, have identified as “the making of Europe.” The first subject exists above all thanks to the work of Reynolds herself, while the second is an outcome of a number of quite distinct scholarly trajectories, spanning several generations. Apart from some suggestive and implicit links, those two subjects have, over the past quarter century, been pursued separately. Reynolds's article brings them together.

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.

As I understand it, Susan Reynolds's article is meant to address the longstanding habit among legal historians of equating professional approaches to the law with the emergence of a school-based study of Roman law. In the course of the twelfth century, she argues, legal practitioners developed their own kinds of expertise that, though less bookish, might have had a practical significance equal to, if not greater than, the learning produced in the schools. Although these observations seem on the mark for Europe north of the Alps, Reynolds errs, I think, in assimilating Italy to this chronological and conceptual schema. Already by the ninth and tenth centuries, there existed in northern Italy a corps of royal notaries and judges who possessed both literacy and legal expertise unparalleled elsewhere in Europe. Distinguished from other laymen by their titles, learning, and even their handwriting, the legal experts already appear to have met the criteria of professionalism generally proposed for the late twelfth century in the rest of Europe.

The first quality the reader may have noted about these two essays is that they both deal with the question of the legal rights of marriage partners to the economic fruits of one another's labor. But inasmuch as this was only one of several issues addressed by Bruce Kercher, I see it only as an interesting coincidence. Somewhat more noteworthy is the difference between their methodologies: Golder and Kirkby's engagingly crafted socio-legal analysis beautifully illustrates the “thick description” virtues of a case study of litigation, reform agitation and legislation, while Kercher gets us well beyond Alan Atkinson's pioneering study of his subject by carefully drawing evidence unavailable to Atkinson from some of the many cases that he and his research assistants have uncovered from manuscript and newspaper records over the past several years (decisions of the Supreme Courts of New South Wales and VanDieman's Land that are steadily becoming available to us all on two websites). Needless to say, both methodologies “work.”