There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.

In the autumn and winter of 1648, England descended into a domestic political crisis unparalleled at any time in the country's history before or since. At Newport on the Isle of Wight, representatives from both Houses of Parliament straggled to conclude a treaty with their king that would end years of civil war and restore some semblance of political order. But many Englishmen trembled to contemplate the consequences of negotiated settlement with a man who had caused so much chaos and bloodshed, who had contrived the violent incursion of a Scottish army onto English soil in the summer of 1648, and even now continued to pin his hopes on an invasion of Catholic forces from Ireland. The officers and men of the New Model Army and their radical supporters in the country at large called for an end to negotiations. They also demanded retributive justice on all those, “from the highest to the lowest,” who had almost drowned the nation in innocent blood, lest they seize the opportunity to finish the job. When the army placed the king himself under physical restraint, MPs proceeded regardless to declare themselves satisfied that the search for peaceful settlement ought to continue. The army now purged the House of Commons of the supporters of the Newport treaty. Many of its officers were eager enough to reach some kind of an understanding with the king themselves, but rather than negotiate, they preferred to dictate terms. When the king refused those that the earl of Denbigh purportedly took to him at Windsor Castle late in December 1648, the officers and their allies in the Rump House of Commons prepared to put Charles on trial instead. Justice would at last be done, and it would be seen to be done.

In the early 1860s, during his tenure as one of the commissioners working to codify Quebec private law, Augustin-Norbert Morin compiled a lengthy bibliography of foreign works on law and jurisprudence, filled with obscure German titles from the eighteenth and early nineteenth centuries. The list contains several hundred alphabetically organized entries over 284 pages and includes a wide variety of authors and periodicals, from prominent names like Savigny, Hugo, Thibaut, Puchta, and Zachariae, to more obscure figures like Johann Brunquel and Georg Friedrich Schutzenberger.

A century has passed since the publication in Germany of a now famous essay on the rights of man by the Heidelberg professor of public law, Georg Jellinek. Over the course of that century, although a “rights revolution” has undoubtedly taken place, numerous practical problems remain in trying to enforce the basic proposition that “all human beings are born free and equal in dignity and rights.” Such problems have led one recent commentator to suggest that perhaps the only meaningful defense of human rights is one based on “moral reciprocity” and secular humanism because any attempts to prioritize human rights on either religious grounds, for example, or that of intrinsic human value, are doomed to failure.

Social and legal historians have long been attracted to well-publicized court cases as primary sources for illustrating the feelings and attitudes of particular historical settings. Such cases are frequently extensively documented, and the detail of their reporting often seems to provide unique insight into the thoughts, attitudes, and even the speech of a past not otherwise accessible. Use of the “famous case” as an image of its time is tempting and can be rewarding if its limitations are recognized. By definition, the “famous case” involves extraordinary events and/or extraordinary personages. Cases of this nature cannot therefore be taken as representative of all that they portray.

Most who study Roman law today do so as historians, not lawyers. History includes doctrine, but Roman legal doctrine is rarely used to solve modern problems. There are exceptions: Roman law helps to solve modern problems in certain jurisdictions and academic writing sometimes gives a Roman solution to a modern problem. But the time is past when Roman sources were routinely put to work in the world of affairs, and most would say codification is the main reason.

Christopher Columbus Langdell (1826–1906) is arguably the most influential figure in the history of legal education in the United States, having shaped the modern law school by introducing a number of significant reforms during his tenure as dean of Harvard Law School (HLS) from 1870 to 1895. Langdell's innovations—including the admission requirement of a bachelor's degree, the graded and sequential curriculum, the hurdle of annual examinations for continuation and graduation, the independent career track for professional faculty, the transformation of the professional library from a textbook repository into a scholarly resource, and the inductive pedagogy of teaching from cases—became the characteristics gradually adopted by university law schools after 1890 and, eventually, schools of other professions. Langdell thus transformed legal education from an undemanding, gentlemanly acculturation into an academic meritocracy.

The study of changing legal conceptions over time, as they manifest themselves in the day-to-day practice of the courts, has proven to be one of the most rewarding, albeit arduous, areas of inquiry in law history. Court records provide unique insights into an otherwise invisible flow of legal understandings in the past and into common people's sharing or contesting those views. This article, based on the court records of domestic violence and rape in the Arecibo Superior Court from 1860–1895, permits revealing insights into the ways in which these offenses were shaped, as legal concepts, and into magistrates' and common people's constructions of gender. It studies criminal law administration in the Arecibo region and its connections to women. The Arecibo judicial district included nine municipalities on the northern coast and interior of Puerto Rico. Its records comprise a collection of thousands of handwritten documents left in extremely fragile state by humidity and poor conservation. They constitute a very large sample of the judicial work in the region.

Recent scholarship on law and norms has emphasized that important social values are at work in the law. But nothing could prepare us for the “Red Ink Case.” Decided by an eighteenth-century French merchant court, the suit was brought by a young woman driven by poverty to prostitute herself in return for a bill of exchange, written with her lover's blood. When the person on whom the bill was drawn refused to accept it for payment, the women sued her lover, demanding that he honor it instead. Although the applicable law required the defendant to pay the bill, the merchant-court judge declined to enforce payment on the ground that “humanity is the primary law.” Instead, the judge ordered the defendant to marry the plaintiff and thereby restore the virtue he had taken. With virtue thus saved, “[t]hese poor children withdrew satisfied.”

What are we to make of this case? It appears in Le négotiant patriote, an account of Old Regime commercial life and merchant-court practice penned by a successful eighteenth-century merchant named Bedos, who claimed to have served as a merchant-court judge and president of a chamber of commerce. Although Bedos' depiction of the Red Ink Case may well be exaggerated, his professional experience suggests that it must be taken seriously—if only as an expression of what contemporary merchants believed merchant-court litigation should be like. Yet, as familiar as we have become with the notion that law shapes and expresses social values, the case remains puzzling. What commercial interests are served, we might ask, by enforcing norms of sexual virtue? And how does a court order of marriage promote the transactional efficiency that bills of exchange, as a defining feature of merchant-court jurisprudence, were presumably intended to facilitate?

By examining the workings of a merchant-run court in eighteenth-century Paris, this article seeks to make sense of the Red Ink Case and its place in merchant-court jurisprudence.

The present essay seeks to work at the intersection of law and history, a meeting point where interpretation of the Second Amendment has been more characterized by collision than confluence. Analysis brought to bear on the historical meaning of “the right of the people to keep and bear arms” has coalesced around two competing normative interpretations: either that the amendment guarantees a personal, individual right to bear arms, or that it applies only collectively to the effectiveness of the militia. It is a premise of this essay that both these models are historically unsatisfactory, the products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models—a type of historians' fallacy that David Hackett Fischer has labeled the “fallacy of false dichotomous questions.” Fischer's description aptly describes the current controversy over the historical meaning of the Second Amendment: in addition to being “grossly anachronistic,” its two opposing positions “are mutually exclusive, and collectively exhaustive, so that the there is no overlap, no opening in the middle, and nothing is omitted at either end.” It is not without challenge on just these grounds, however, as a recent call for a “new more sophisticated paradigm” attests. This essay seeks to provide that new model and to do so by grounding the “right of the people to keep and bear arms” in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-century political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain. That struggle nevertheless remains a missing context that prefigured American debates over constituting and guaranteeing local militias in the coequal states of the federal union established by the United States Constitution in 1787 and 1788. Once the time came for seeking a written guarantee of local militia effectiveness in the federal Constitution, the language and substance of this transatlantic legacy had great influence. As experience, they gave political urgency to the drafting and ratification of the Second Amendment; as a theory of rights, they embodied an eighteenth-century individual right exercised collectively.

As demonstrated in Part I, the question of Chancery reform before 1827 was much debated in party terms and focused largely on Lord Eldon's shortcomings as a decision-maker. After Eldon's departure, it largely ceased to be a party-political issue, although by 1830 law reform in general was firmly on the political agenda. With Eldon gone, there was much common ground on the outlines of Chancery reform. This can be seen from the plan proposed in the Commons by the conservative Sir Edward Sugden in December 1830. Sugden suggested creating a court of appeal for equity, on which the Lord Chancellor, Master of the Rolls, Chief Baron, and Vice Chancellor would sit. He proposed reforms in the masters' offices, under which they would be paid salaries rather than fees, and he wanted masters to sit in open court, with limited judicial functions. He also advocated retrenchment of sinecures and the removal of payment by fees. These ideas were all echoed in the new reformist Chancellor Brougham's proposals for the court, which he elaborated in the spring of 1831.

Scholars of slavery in Latin America are giving renewed attention to the study of the law. Although this literature is not as developed and sophisticated as in the United States, where slavery has been a central concern of legal historians for quite some time, a specialized subfield seems to be in the making. This is a welcome development. After all, every important aspect of slaves' lives in the Iberian colonies, from birth and nourishment to marriage, leisure, punishment, and rest, was regulated in theory by a vast, indeed massive, array of positive laws. Some of these regulations had been part of the traditional statutes of Castile for centuries, others were passed by the Crown or by local organs of administration and power.

After several decades of intellectual labor invested in the Tannenbaum debate—a long and exhausting controversy well summarized in the first part of Alejandro de la Fuente's article—I am wary at the prospect of opening a new round of this “many-headed-hydra” debate. Aside from the conceptual limitations of the (overly ambitious) thesis and the reins it can impose on fresh formulations of research agendas, there are other reasons why it may be wise to put Tannenbaum to rest. His thesis is burdened with a series of charged subtexts that surreptitiously make their way into the discussion and inflect the terms of the debate. Some of these subtexts carry long (and polemical) histories behind them that are difficult to obliterate.

Second Amendment scholarship has become mired in an intellectual quagmire. Contemporary debate over this provision of the Bill of Rights has been cast in terms of a simple dichotomy: either the Second Amendment protects an expansive individual right similar in nature to freedom of the press or it protects a narrow right of the states to maintain a well-regulated militia. Partisans of the individual rights view argue that the Second Amendment was designed to affirm a basic individual right to own firearms for hunting, recreation, and personal protection. The other view of the amendment, often described as the collective rights view, argues that the amendment was about the allocation of military power in the federal system. According to this view, the Second Amendment was a modest concession to moderate Antifederalists who feared the power of the new federal government. By affirming the right of the people to bear arms as part of a well-regulated militia, Federalists assuaged lingering Antifederalist qualms about the future of the state militias.

Michael Lobban shows how dissatisfaction with the law-equity split in English civil justice predated the Judicature Act reforms by two generations at least (one could argue two-and-a half centuries or more—periodization fails quickly). Lobban links the first modern debates over fusion to high legal politics on the one hand and to the more intricate internal problems of evidence, procedure, and jurisdiction on the other. Lawyers of the earlier Victorian age found the Chancery system bequeathed to them by Lord Eldon to be intolerable on two counts: it represented Old Corruption or monopolistic private control of public offices and it exacted heavy costs in procedural inconvenience, cost, and delay. Lobban does not see ideology such as Benthamite philosophy driving the rationalization of Chancery doctrine and institutions though he does not dismiss this factor entirely.

The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was “subversive of first principles.” He claimed, “That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied,” adding for good measure: “It is a proposition as self-evident as that black is not red, or white black.” Almost two centuries later, in a provocative 1974 essay called The Death of Contract, Grant Gilmore asserted that the legal doctrine of consideration in contract law and the equitable doctrine of promissory estoppel were like “matter and anti-matter,” and “The one thing that is clear is that these two contradictory propositions cannot live comfortably together: in the end one must swallow the other up.”

David Konig has written an important article that makes a welcome contribution to the rapidly evolving field of Second Amendment scholarship. In the essay that forms the focal piece of this forum, Konig argues that two rival, hotly contested interpretations of the Second Amendment fail to recapture the original meaning of the constitutional right to keep and bear arms. To Konig, neither the individual rights nor the states' rights model of the Second Amendment accurately reflects the conceptual universe shared by the drafters and ratifiers of the Bill of Rights. Neither model (and particularly not the individual rights model), Konig maintains, would have made sense to the persons who left behind a now familiar and much-discussed documentary record related to the call for amendments to the Constitution in 1788, the drafting of the Bill of Rights in 1789, and its ratification in 1791.