Hostname: page-component-586b7cd67f-l7hp2 Total loading time: 0 Render date: 2024-11-27T11:28:38.594Z Has data issue: false hasContentIssue false
  • English
  • Français

The CANZ Approach to Legal History

Published online by Cambridge University Press:  28 October 2011

Peter Karsten
Get access Rights & Permissions [Opens in a new window]

Extract

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.”

Type
Forum: Comment
Information
Law and History Review , Volume 21 , Issue 3 , Fall 2003 , pp. 615 - 620
Copyright
Copyright © the American Society for Legal History, Inc. 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See Kercher, Bruce, “Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850,” Law and History Review 21 (2003): 527–584.CrossRefGoogle ScholarGolder, Hilary and Kirkby, Diane, “Mrs. Mayne and Her Boxing Kangaroo: A Married Woman Tests Her Property Rights in Colonial New South Wales,” Law and History Review 21 (2003): 585–605.CrossRefGoogle Scholar

2. See, for example, Jeremy Finn, “Reverses in the Flow: English Adoption of Law from the Empire,” paper presented at the Australia and New Zealand Legal History Society meeting, Melbourne, July 1998; and “‘It Might Be Worth Trying It in Our Dominion’: Adoption of Australasian Legislation by Canadian Legislatures in the Nineteenth Century,” paper presented at the Legal History Conference, Australian National University, Canberra, Feb. 2000; Buck, Andrew, McLaren, John, Wright, Nancy E., eds., Land and Freedom: Law, Property Rights and the British Diaspora (Ashgate, 2001)Google Scholar; Weaver, John, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal: McGill-Queens University Press, 2003)Google Scholar; Coleman's, PeterProgressivism and the World of Reform: New Zealand and the Origins of the American Welfare State (Lawrence: University Press of Kansas, 1987)Google Scholar and his recent comparisons of the treatment of debtors in the United States and New Zealand; Havemann, Paul, ed., Indigenous Peoples' Rights in Australia, Canada, and New Zealand (New York: Oxford University Press, 1999)Google Scholar; McLaren, John, Foster, Hamar, and Orloff, Chet, eds., Law for the Elephant: Law for the Beaver (Regina, Sask.: Canadian Plains Research Center, 1992)Google Scholar; McHugh, P. G., “Maori Fishing Rights and the North American Indian,” Otago Law Review 6 (1985): 65–94Google Scholar; Bernard Hibbitts, “Her Majesty's Yankees: The Use of American Authorities in the Courts of Victorian Nova Scotia,” paper presented at the annual meeting of the American Society for Legal History, Richmond, Oct. 1996. For examples of comparativist work by legal historians of the U.S., see Peter Hoffer and Hull, N. E. H., Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York: New York University Press, 1981)Google Scholar; Konig, David, “Colonization and the Common Law in Ireland and Virginia, 1569–1634,” in The Transformation of Early American History, ed. Henretta, James, Kammen, Michael, Katz, Stanley N. (New York: Knopf, 1991), 70–92Google Scholar; Allen, David G., In English Ways: The Movement of Societies and the Transferal of Local Laws and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill: University of North Carolina Press, 1981)Google Scholar; and Karsten, Peter, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora, 1600–1900 (New York: Cambridge University Press, 2002).Google Scholar

3. ed. E. G. Swem, 2 vols. (Roanoke: Stone Printing, 1934–1936).

4. For example, one indexed entry, in a volume of the first series of the William & Mary College Historical Quarterly (vol. 7, p. 113) reprints an item from the Salem (Mass.) Mercury for July 15, 1788, reporting the arrival at Fisher's Island of the brig Nancy with “140 convicts, taken out of the British jails,” for distribution in New England. The captain, a half-pay naval officer, is reported to have received “51 sterling per head from the government” for his troubles, all of which sounds exactly like the new imperial system of transportation to New South Wales. Was the Nancy a mere aberration, a final shipment?

5. Greenberg, Douglas, Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca: Cornell University Press, 1976).Google Scholar

6. A tiny fraction of the decisions of their high courts have been made subject to oversight by the Law Lords of Privy Council throughout the years, and the Colonial Office reviewed colonial statutes with care before the grant of Responsible Government, somewhat more circumspectly thereafter. The passage by the Imperial Parliament in 1865 of the Colonial Laws Validating Act relinquished virtually all further disallowance powers (one such exception: shipping). See Swinfen, David, Imperial Control of Colonial Legislation, 1813–1865: British Policy towards Colonial Legislative Powers (Oxford: Clarendon, 1970)Google Scholar; and Karsten, Between Law and Custom, 509–12.

7. See especially Kercher, Bruce, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996)Google Scholar; Kercher, , An Unruly Child: A History of Law in Australia (St. Leonards, NSW: Allen and Unwin, 1995)Google Scholar; Petrow, Stefan, “Resisting the Law: Opposition to the L. & W. Ry. Rate, 1872–1874,” University of Tasmania Law Review 15 (1996): 77–104Google Scholar; Byrne, Paula, Criminal Law and Colonial Subject: New South Wales, 1810–1830 (Cambridge: Cambridge University Press, 1993)CrossRefGoogle Scholar; Hill, Richard, Policing the Colonial Frontier: The Theory and Practice of Coercive Social and Racial Control in New Zealand, 1767–1867, 2 vols. (Wellington, N.Z.: U. R. Ward, 1986)Google Scholar; Cadigan, Sean, Hope and Deception on Conception Bay: Merchant-Settler Relations in Newfoundland, 1785–1855 (Toronto: University of Toronto Press, 1995)CrossRefGoogle Scholar; Lewthwaite, Susan, “Violence, Law and Community in Rural Upper Canada,” in Essays in the History of Canadian Law, ed. Loo, Tina, Lewthaite, Susan, and Phillips, Jim (Toronto: University of Toronto Press, 1994), 2:353–86CrossRefGoogle Scholar; Wilton, Carol, “Lawless Law: Conservative Political Violence in Upper Canada, 1818–41,” Law and History Review 13 (1995): 111–36CrossRefGoogle Scholar; Romney, Paul, “From the Types Riot to the Rebellion: Elite Ideology, Anti-legal Sentiment, Political Violence and the Rule of Law in Upper Canada,” Ontario History 79 (1987): 113Google Scholar; Maquis, Greg, “‘A Machine of Oppression under the Guise of Law’: The St. John Police Establishment, 1860–1890,” in Historical Perspectives on Law and Society in Canada, ed. Loo, Tina and McLean, Lorna (Toronto: Copp Clark Longman, 1994), 200–218Google Scholar; Steven Kenny, “‘Cahouts’ and Catcalls: An Episode of Popular Resistance in Lower Canada at the Outset of the Union,” in Historical Perspectives on Law and Society in Canada, ed. Loo and McLean, 74–94; Fingard, Judith, Jack in Port: Sailortowns in Eastern Canada (Toronto: University of Toronto Press, 1982)Google Scholar; Baker, H. Robert, “Creating Order in the Wilderness: Transplanting English Law to Rupert's Land, 1835–1851,” Law and History Review 17 (1999): 209–46.CrossRefGoogle Scholar

8. Among the examples of U. S. and U.K. nonlegal historians who have illuminated this tension between law and custom are Miller, Wilbur, Revenuers and Moonshiners: Enforcing the Federal Liquor Law in the Mountain South, 1865–1900 (Chapel Hill: University of North Carolina Press, 1991)Google Scholar; Thelen, David, Paths of Resistance: Tradition and Dignity in Industrializing Missouri (New York: Oxford University Press, 1986)Google Scholar; Kim, Sung Bok, Landlord and Tenant in Colonial New York (Chapel Hill: University of North Carolina Press, 1978)Google Scholar; Taylor, Alan, Liberty Men and Great Proprietors: The Revolutionary Settlement on the Maine Frontier, 1760–1820 (Chapel Hill: University of North Carolina Press, 1990)Google Scholar; Ives, Edward, George Magoon and the Down East Game War: History, Folklore and the Law (Urbana: University of Illinois Press, 1988)Google Scholar; Pisani, Donald, “‘I am Resolved not to Interfere but permit all to work freely’: The Gold Rush and American Resources Law,” California History 77 (1998–1999): 123CrossRefGoogle Scholar; Aron, Stephan, How the West Was Lost: The Transformation of Kentucky from Daniel Boone to Henry Clay (Baltimore: Johns Hopkins University Press, 1996)Google Scholar; Thompson, E. P., Customs in Common (New York: New Press, 1991)Google Scholar; Neeson, Jane, Commoners: Common Right, Enclosure and Social Change in England, 1750–1820 (New York: Cambridge University Press, 1993)CrossRefGoogle Scholar; and Earle, C., “Custom, Class Conflict and Agrarian Capitalism: The Cumbrian Customary Economy in the Eighteenth Century,” Past & Present 110 (1986): 106–33.Google Scholar (I do not mean to say that there are only a few U.S. legal historians who attend to this tension. But not enough of us consider research agendas comparable to the one suggested in Dirk Hartog's “Pigs and Positivism” (Wisconsin Law Review [1985]: 899–927). For examples of some that have, see, for example, Konig, David, Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill: University of North Carolina Press, 1979)Google Scholar; Banner, Stuart, “Written Law and Unwritten Norms in Colonial St. Louis,” Law and History Review 14 (1996): 33–80CrossRefGoogle Scholar; Reagan, Leslie, When Abortion was a Crime: Women, Medicine and Law in the U. S., 1867–1973 (Berkeley: University of California Press, 1997)Google Scholar; and Karsten, Between Law and Custom.

9. What Kercher refers to as “an American notion of convict transportation,” with the shipmasters having property of their convicts' labor, is, of course, based on an imperial statute, not a custom.

10. Obviously I am not including either of these essays or the work of folks like Peter Coleman or P. G. McHugh in this grievance, but it is true of a number of other such efforts from the circle of CANZ legal historians.