From 1843 to 1943, the regime of extraterritoriality in China operated to exempt not just diplomats but also other citizens of Western empires from Chinese law and jurisdiction without granting the Chinese in the West reciprocal privileges. This was a milestone in international law and relations; it also had a long-lasting impact on the trajectories of modern Chinese history. On the one hand, the Treaties of Nanking (Nanjing) in 1842 and Bogue (Humen) in 1843, signed in the aftermath of the First Opium War (1839–42), marked the first institutionalization of British extraterritorial privileges in East Asia. Through treaties in 1844, the United States and France also secured such privileges in China and established their imperial prestige in the Asia-Pacific. These practices prompted revision of international law treatises and set the pattern for Western dealings with Asian countries for the century to come. On the other hand, from the late nineteenth century on, attempts to abolish foreign extraterritoriality continued to be a most powerful rallying call among the Chinese to “modernize”/“Westernize” their legal and political systems to regain sovereignty and international respectability.

The Philadelphia convention of 1787 looms enormous in many accounts of U.S. constitutional history, serving as the set piece in which various and muddled worldviews, theories, interests, and allegiances gelled into a coherent science and structure of politics. The Convention thus becomes time zero in the chronology of U.S. political and constitutional development, a finite and forward-looking first moment defining, for good or ill, the terms according which subsequent debates regarding the nature of U S. government would be conducted.

Ephram (Fedya) Nestor, a Bulgarian-born immigrant to the United States, was “an unusual person,” according to his second wife Barbara. She met him in 1933 when he was selling vegetables from his car and remembers not really liking him. “He stayed too long,” he “talked too much,” and worst of all to this devoted radical, he “passionately espoused the cause of Communism [but] he didn't know too much about it.” Interviewed when she was ninety, sharp-witted Barbara Nestor still recalled how Fedya embarrassed her at a Marxist study group with his “foolish” statements and obvious lack of knowledge about Marx or communism. His family agreed he was “not much of a Communist” when he joined the local party in 1936 and could not be trusted with the simplest duties. Nonetheless, the federal government deported Fedya in 1956 for his brief Communist Party (CP) membership.

All historical sources reflect reality in a partial and distorted way. The past, therefore, can be understood only when the limitations of particular sources are recognized and the methods employed in making historical observations, as well as the observations themselves, are constantly tested and refined. Drs. Poos and Smith, in an earlier issue of the Law and History Review, have undertaken such a task when they thoroughly examined my use of manorial court rolls' data for demographic analysis of a medieval English parish.

Over the past 30 years, a growing amount of scholarly attention has been paid to forms of constitutional interpretation other than judicial review, ranging from departmentalism to explicitly removing judicial review from the court's purview. As many of these works have recognized, such skepticism is not new, but has a strong historical tradition. What has not often been noted, however, is that differing conceptions of judicial review—even opposition to judicial oversight of legislative actions—existed nearly from the moment that Marbury v. Madison was decided. This article examines some of these divergent opinions on judicial review in the Early Republic by studying how it was perceived by the Old Republicans, the conservative faction of the Virginia Jeffersonians.

In 1871, former slave Lettie Marshall sued the estate of B. G. Marshall, her former master, arguing that she was entitled to farm two hundred acres of his land in Fort Bend County, Texas. Her claim was based on a “homestead exemption” provision of the Texas Constitution, which exempted the homestead of a “family” from “forced sale for debts” and vested continued occupancy rights in surviving “family” members after the death of the family head. After Emancipation, Marshall and her family had become sharecroppers on B. G. Marshall's estate and continued to farm the land until his death. At trial, Marshall portrayed herself as B. G. Marshall's “confidential servant” whom he treated “like she was one of the family.” As proof that their bond transcended a mere contractual relationship, she noted that he had entrusted her with overseeing a “squad of eight or ten hands,” and that upon occasion she “lent him money” and even “lived in the same house with Marshall, who was a cripple, and … waited on him, ” when her legal status no longer obliged her to do so. Not only did she fulfill “all of the duties and relations to him of mother, sister, and daughter,” but Lettie Marshall, her husband, and their descendents were the only named beneficiaries of his will.

The most striking feature of the Supreme Court's decision in United States v. Curtiss-Wright Export Corp. is its language asserting an independent and exclusive executive foreign affairs power. As “the sole organ of the federal government in the field of foreign relations,” the Court declared, the executive holds “very delicate, plenary and exclusive power” that “does not require as a basis for its exercise an act of Congress.” From the day the case was decided, it has stood as a preeminent authority for those who would magnify the constitutional role of the president by proclaiming the independent and unchecked nature of the executive's foreign affairs power.

The shortest trial report in the Old Bailey Proceedings is precisely eight words in length. In February, 1685:

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.

In his thoughtful and informative article on the twelve judges and judicial review, James Oldham illuminates an important if little-studied corner of eighteenth and nineteenth-century judicial practice. For centuries judges in criminal (and civil) cases had reserved questions that presented peculiar difficulties related to procedure or the interpretation of statute to the consideration of their colleagues. We seldom glimpse much of the substance or form of these deliberations. They were private and informal discussions, although by the eighteenth century the participants in these meetings observed well-understood conventions. Oldham outlines what these rules and practices involved. Decisions, for instance, did not have to be unanimous. The majority opinion took on the force of precedent, even though the deliberations often survived only in unpublished notes or the memories of the judges. Oldham gives a strong reading to this practice. Judges not only determined which cases would be referred to their colleagues, they exercised considerable discretion in ruling on the objections that had been raised. He views this process as offering another example of the power of the judges to shape the character of legal proceedings in early modern England. They were not only correcting procedural mistakes that arose during a trial; they were actively interpreting statute. In doing so, they demonstrated their decisive role in controlling the operation of criminal justice over the long eighteenth century.

Elias Berdos had not yet reached the age of fourteen when he arrived in the United States in the first decade of the twentieth century. Three weeks after debarking, he applied to Tremont and Suffolk Mills in Lowell, Massachusetts and was put to work in the textile factory's spinning room, tending the mules as many boys his age did. Inexperienced at factory labor and unable to speak English, he ventured forth into the helter-skelter world of a cotton mill. About four weeks later, Elias stood in the spinning room, waiting for the workday to begin. With his back turned to the machinery, he rested his hand on a guard that covered the spinning frame's gears. When his hand slipped into the rotating metal, Elias joined the tens of thousands of workers injured in the process of American industrialization. Like many of those workers, Elias and his family sued the company for damages, but unlike many of his fellow laborers, Elias relied on Massachusetts's statutory prohibitions against child labor to maintain a cause of action. Losing in the lower courts, Elias appealed to the Supreme Judicial Court of Massachusetts. His case led the court to examine the development of child labor law in Massachusetts, looking into both its statutory genesis and legislative intent.

This study examines how law, custom, and social norm interacted in civil justice in Qing and Republican China by looking into 152 civil cases tried in 1912, right after the founding of the Republic of China, and a body of legal interpretations from the Supreme Court during 1912-1929, and certain provisions in the Civil Code of 1929-30--the very first one in Chinese history. It shows that both law and custom were invoked by judges within their moral universe or social norm. It traces how the Supreme Court allowed local customs to be a legal ground for rulings in certain civil disputes, and which customs in civil matters in the Qing and the early Republic were, and which were not, “hardened” into the Civil Code. The interplay between law and custom, mediated by judges with their normative sense of right and wrong, constituted both continuity and change in civil justice between the Qing era and the Republican period. Ultimately, the issues addressed here speak to a larger question of how Chinese jurists, within their judicial discretions, tried to strike a difficult but necessary balance between “law-on-books” and “law-in-action,” while law on the books was undergoing important revisions.

Having long admired Norma Landau's pioneering work on the seventeenth- and eighteenth-century English magistracy, I am grateful to her for bringing her considerable expertise to bear on my article. Characteristically, Landau's criticism is extremely forceful. Unfortunately, the intriguing questions that Landau raises in her comment are obscured by a host of criticisms based on a misunderstanding of the claims that I advance. Landau attributes arguments to me that I do not make and ignores important ones that I do. In the process, she fails to engage with my central thesis: In summary proceedings that required suspects to “account” for materials found in their possession, the presumption of innocence did not exist.

In 1999, Chile became the last country in Latin America to grant full equality to all children regardless of the marital status of their parents. The Law of Filiation (Ley de Filiación) declared all children's right to know their origins, receive support from their progenitors, and participate equally in inheritance. Both supporters and critics hailed the law as transcendental, one of the most significant reforms to civil law since the promulgation of the Chilean Civil Code in 1855. On the day the law took effect, President Eduardo Frei was on hand at a civil registry office to greet the first parents arriving to solicit birth certificates, which no longer specified their children's natal status. He gave them a native quillay sapling, symbol of life and growth, adorned with a ribbon declaring, “Bienvenida, igualdad (Welcome, equality).” In succeeding months approximately 2,000,000 citizens, in a country of 15,000,000, would petition the offices of the civil registry for the new, nondiscriminatory birth certificates. One congresswoman hailed the bureaucratic flood as a “vindication of human dignity.”

Leading works published since the 1980s relating to law and the modern administrative state that privilege economy and politics—work by scholars like William Novak tracing the nineteenth-century common law roots of the modern regulatory state, Stephen Skowronek on the construction of a national administrative state, and Martin Sklar on the intersection of reform with the rise of corporate capitalism in reshaping the political economy of the American state—remain intensely engaged with the work of Willard Hurst. Leading works published in the same period relating to law and the modern administrative state that privilege gender—work by scholars like Kathryn Kish Sklar on Florence Kelley and women's political culture, Linda Gordon on the welfare state, and Leslie Reagan on abortion—do not cite Hurst in the footnotes or, for the most part, in their bibliographies. For that matter, those from one subfield do not cite the other and vice versa. There is a simple, innocuous explanation for these silences—we all have too much to read.

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.

Three themes crucial to understanding eighteenth-century British history converge when one writes about the country attorney: the professions, which had a remarkable development in Georgian England; the rural practitioner as distinct from his urban, principally London, counterpart about whom much more has been written; and the local economy in which attorneys performed as conveyancers, money lenders, managers of landed properties, copyhold court holders, and clerks—for justices of the peace, at the assizes, on turnpike, enclosure, and drainage commissions, for charities, and for law and order associations. Popular literature notwithstanding, country attorneys were not so often knaves using their skills to cheat unwitting clients as indispensable cogs in the rural economy where they served the interests of the landholding classes.

In the fall of 1865, North Carolina lawmakers gathered in Raleigh to draw up a new constitution. Despite the absence of the most extreme secessionists, those in attendance were still a remarkably homogeneous group of planters, businessmen, and professionals—white men of the same wealthy families that had always governed the state. Yet faced with the sweeping changes wrought by war and emancipation, they anticipated a difficult session. Edwin Reade, who delivered the opening address, tried to set a positive tone, assuring the assembly that the future would be easy compared to the hardships of the past five years. The metaphor he chose was that of a homecoming. “Fellow citizens,” he intoned, “we are going home”: “Let painful reflections upon our late separation, and pleasant memories of our early union, quicken our footsteps towards the old mansion, that we may grasp hard again the hand of friendship which stands at the door, and, sheltered by the old homestead which was built upon a rock and has weathered the storm, enjoy together the long, bright future which awaits us.”