The “who” of a lawsuit, who can sue and who can be sued, has long been a fundamental issue of process. Lengthy discussions of the issue are found in Roman law texts of eighteen centuries ago and in succeeding centuries in texts influenced by Roman law. In Roman law texts, the “who” of a lawsuit was discussed in the same context and, most importantly, with the same seeming concern as the fundamental issues of whether the court had authority over the parties and whether the court had competence over the subject matter. The same is true for many of the texts influenced by Roman law.

On May 11, 1938, two New Orleans policemen entered the Astoria Restaurant, marched to the kitchen, and approached Loyd D. T. Washington, a 41-year-old African American cook. They informed Washington that they would be taking him to the First Precinct station for questioning, although they assured the cook that he need not change his clothes and “should be right back” to the “Negro restaurant,” where he had worked for 3 years. Immediately after arriving at the station house, police officers “surrounded” Washington, showed him a photograph of a man, and announced that he had killed a white man in Yazoo City, Mississippi, 20 years earlier. When Washington insisted that he did not know the man in the photograph, that he had never been to (or even heard of) Yazoo City, and that he had been in the army at the time of the murder, the law enforcers confined him in a cell, although they had no warrant for his arrest and did not charge him with any crime. The following day, a detective brought him to the “show-up room” in the precinct house, where he continued the interrogation and, according to Washington, “tried to make me sign papers stating that I had killed a white man” in Mississippi. As every African American New Orleanian knew, the show-up (or line-up) room was the setting where detectives tortured suspects and extracted confessions. “You know you killed him, Nigger,” the detective roared. Washington, however, refused to confess, and the detective began punching him in the face, knocking out five of his teeth. After Washington crumbled to the floor, the detective repeatedly kicked him and broke one of his ribs. The beating continued for an hour, until other policemen restrained the detective, saying “give him a chance to confess and if he doesn't you may start again.” But Washington did not confess, and the violent interrogation began anew. A short time later, another police officer interrupted the detective, telling him “do not kill this man in here, after all he is wanted in Yazoo City.” Bloodied and writhing in pain, Washington asked to contact his family, but the request was ignored. Because he had not been formally charged with a crime, New Orleans law enforcers believed that Washington had no constitutional protection again self-incrimination or coercive interrogation and no right to an arraignment or bail, and they had no obligation to contact his relatives or to provide medical care for him.

Lindsay Farmer's argument that, in seeking to replace the common law with legislation, and in striving for a novel systematization of the relationship between civil and penal law, the criminal law commissioners of 1833-45 transformed the understanding of criminal law in relation to government is a powerful one. It is to some degree an inferential argument, positing that a reading of Bentham's theory of legislation allows us to understand the commissioners' work better, since Bentham “makes explicit many of the broader political assumptions that guided the commissioners and allows us to understand the precise nature of their codification project.” It is worth asking therefore how far the commissioners were informed by Benthamic ideas and what they understood their task to be.

The basic colonial encounter involved a colonizing power and colonized locals. Some colonial situations were more complex, involving a third element: settlers of nonlocal stock originating in an ethnos, or nation, different than that with which the colonizer was identified. Two prominent examples from the annals of the British Empire are the French inhabitants of Nouvelle France after France ceded it to the British in 1763, and the Dutch inhabitants of the Cape Colony after the British conquest of 1806. The British typically permitted such settler populations to retain at least parts of the laws to which they were accustomed, which laws were often based on the laws of the settlers' jurisdiction of origin. As regards settler use of English law, the English sometimes provided for the application of parts of it to non-British settlers, while blocking such settlers' attempts to use other parts. The part of English law most commonly applied to non-British colonial subjects, both settlers and natives, was commercial law, in order to facilitate commerce between different parts of the Empire. The parts least commonly applied to such inhabitants were family law, land law, and the law of inheritance.

I am glad that the Review has provided a Forum for advancing discussion of the “rapidly evolving field of Second Amendment scholarship,” as Richard Uviller and William Merkel so aptly describe it. The field is evolving so rapidly, in fact, that I had no chance to consult their excellent book on the subject when writing this article. Having now had the luxury—and great benefit—of reading it in preparing my reply to their comments, I can only cheer them on for the way that book and their remarks in the Forum advance the common goals we seek: to replace an ahistorical quotation-hunting with a meticulous examination of “the collateral expressions of the founders and their contemporaries to find the most likely purposes and assumptions underlying the text” of the Second Amendment.

In 1788, a Dutch-born minister in upstate New York named Lambertus De Ronde translated the U.S. Constitution into Dutch. Five years later, a legal scholar in the Netherlands, Gerhard Dumbar, produced another Dutch translation of the U.S. Constitution. De Ronde's translation was printed on at least two separate occasions in 1788, and scores of editorial changes between the two printings demonstrate that De Ronde was working to make the text appealing and understandable to his audience. Dumbar, however, disparaged De Ronde's translation for its amateurish character. Dumbar claimed, furthermore, that a legal education, and not experience in an American context, was essential for understanding the Constitution. In an analysis of the context and language of these two early Dutch translations of the Constitution, this article contributes new perspectives on the transnational character and influence of the U.S. Constitution. This article argues that for the Dutch in New York, debates about ratification and interpretation of the U.S. Constitution, were as much concerned with local character and transnational currents as with national politics.

There has been a great deal of confusion in recent years in regard to what we mean by “truth.” Although confusion and debate over determining the truth is hardly novel for either philosophers or common folks, the issue of “truth” and how we might know it (or produce it) has been quite the rage these last twenty years among historians, legal scholars, and postmodern would-be theorists. Plausibility, coherence, elegance, and consistency over time and within a community are just a few among the current yardsticks. These have, in both their rule-bound and unfettered forms, nudged aside inherited liberal (and marxist) conceptions of “correspondence theory,” which held that there is something really true out there—our task being to get as close to it as we can.

A commentator noted in 1881 that Irishmen regarded jury service as “the greatest burden that can be inflicted upon them … they would be delighted if trial by jury was suspended tomorrow.” He later added, “[o]f course an enormous outcry would be raised about it in the national press, and in public meetings; but jurors … would give anything in the world not to serve … because it is the terror of their lives.” Much has been written about the poor state of the nineteenth-century Irish jury system, and it is certainly true that for various social, economic and political reasons, in comparison with that in England, the Irish system appears to have operated in a way that fell somewhat short of ideal. This article seeks to provide an understanding of the realities facing the jurors themselves, and will examine their experiences of the justice system before, during, and after the trial.

History is a strange medium: it carries the most contemporary debates onto the most distant terrain. Both Bruce Mann and David Konig focus on the notions of change and context that undergird the forum essays. Those issues, more than any moment in early New York, link the articles and the comments. By exploring the way we defined “constitutions,” “constitutionalism,” and “constitutional history,” the commentators open up a large and current question. They invite a discussion about approaches to constitutional change.

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

In belle époque France, criminal juries were criticized as too tolerant of crime and too lenient to effectively punish criminals. While the French institution of the jury was under attack by magistrates and other elites, mixed sex juries provided an alternative model. Jury reformers advocated the introduction of mixed-sex criminal juries in France in order to render better verdicts and reduce crime, especially in the areas of infanticide and abortion. The French National Assembly debates over proposed legislation, however, stalled over political concerns with women's truncated citizenship rights. Historical analysis of the types of arguments deployed in this jury reform debate (including archival documents, parliamentary records, and press sources) reveals that reform proponents argued that gender difference-especially in terms of morality and psychology-justified women's admission to juries, particularly in cases of infanticide and abortion. The operation of an unofficial “women's jury” (jury féminin) between 1905 and 1910 in Paris demonstrated women's judicial decision-making capacity. Analysis of this citizens' jury documents the development of a feminist critique of the legal treatment of domestic violence, reproductive freedom, and marriage law publicized in the early twentieth century. This research contribution posits grounds for the re-periodization of feminist legal history as viewed through this case study of women's claims to jury service in Third Republic France.

In 1939, at the end of almost two decades of statewide want and despair, Oklahoma adopted the community property system “to save state residents on their federal income tax.” Between 1939 and 1947, Oklahoma and four other states openly and unabashedly exploited the Supreme Court's creation of what amounted to a tax loophole for the nation's wealthy; several more states seriously considered doing the same. In 1930, the Court had ruled that the community marital property regime of eight western states permitted their married couples to split family income between spouses, so that each spouse reported half of that income for federal income tax purposes. As a result of the federal government's progressive income tax bracket structure, in most cases this split meant that more of the family's income would be taxed in lower tax brackets. Thus, a property regime that was purely a creation of state law had the effect of reducing residents' federal tax obligations.

This article, part of the forum “The Everyday Materials of Colonial Legal Spaces,” analyzes how Spanish law intersected with longue-durée Indigenous histories to pattern performative judicial violence in disputes over boundary lands separating Indigenous communities. During the late seventeenth and eighteenth centuries when population growth and expansion and commercialization of the livestock industry put pressure on Indigenous lands, Native judicial officers used their coercive power and symbols of judicial authority to physically enter boundary lands and shape the course of legal disputes. By combining legal and extralegal procedures, Native officials developed customary patterns of judicial practice and performance proper to their own jurisdiction in which objects invested with political, sacred, and quotidian meaning figured centrally. Staffs of office and whips wielded by Native authorities as emblems of Indian administrative and legal jurisdiction represented one category of the everyday materials of law. Clothing, farming implements, and livestock afforded other tools with which Indigenous farmers and authorities made legal claims. When reading land disputes alongside criminal cases of land invasions across Oaxaca’s judicial archives, it becomes clear that Native officials and farmers used these objects to struggle over territory and authority in cycles of litigation, land titling or contracts of joint-possession, and violence that often endured for decades or centuries, forming an enduring facet of agrarian custom in the region.

One of the most important legacies of the American Civil War, not just in the re-united States of America but also in the nineteenth and twentieth century world, were the new laws of war that the conflict introduced. “Lieber's Code,” named after the man who authored it for the Lincoln administration, was a set of instructions written and issued in April 1863 to govern the conduct of “the armies of the United States in the field.” It became a template for all subsequent codes, including the Hague and Geneva conventions. Widely understood as a radical revision of the laws of war and a complete break with the Enlightenment tradition, the code, like the war that gave rise to it, reflected the new post-Napoleonic age of “people's wars.” As such, it pointed forward, if not as the expression of the first total war, then at least as an expression of the first modern one, with all the blurring of boundaries that involved.

Crucial to the implementation of the War Relocation Authority's (WRA) regulations of its detention camps for the uprooted Japanese American community of the West Coast were the WRA “project attorneys,” white lawyers stationed in the camps who gave legal advice to administrators and internees alike. These lawyers left behind a voluminous correspondence that opens a new window on the WRA's relationship with its prisoners, a relationship heretofore understood as encompassing coercion on one side and either compliance or resistance on the other. This article uses the voluminous correspondence of the project attorney at the Heart Mountain Relocation Center in Wyoming as a new lens for viewing the regulatory relationship between the WRA and the imprisoned community. It focuses on three of the many matters about which the project attorney gave advice: the design of the camp's community government, its criminal justice system, and its business enterprises. Evidence from this one law office suggests that on many key issues, the relationship between the WRA and the internees was marked not so much by coercion as by reciprocal accommodation, with each taking account of some of the preferences of the other. While the data are from just one of the ten WRA camps, they suggest a need to reconsider our understanding of how this American system of racial imprisonment operated.