MH, a domestic cook who was 26 years of age, was charged with murdering her newborn infant in September 1931. MH had been “seeing a boy” who, she stated, “took advantage” of her on one occasion, procuring her consent to sexual intercourse by a promise of marriage. She claimed that she only realized she was pregnant during the later months of her pregnancy, but did not inform the father of her child. Her employer, suspecting that MH was pregnant, enquired on several occasions whether she could do anything to help, but MH did not admit her “condition.” Although her employer was aware that MH had no family or home to go to, she gave MH notice to quit her job. A couple of weeks later, MH gave birth in her bedroom at her employer's home; she did not call out for assistance or disturb the girl with whom she shared the bedroom. MH admitted in her statement that the baby cried after birth and that she “tied a white dress belt … around its neck to kill it,” adding: “I tied it [the belt] tight. I killed the child and I know I killed it.” Afterwards, MH put the body in a suitcase, cleaned up the bloodstains, and returned to work. The suspicions of her employer eventually lead to the discovery of the dead infant. The postmortem examination showed that the infant had been born alive, but had received no attention at birth; death was the result of strangulation. MH was acquitted of murder at the Central Criminal Court.

Partisan expert witnesses, selected, prepared, and presented by the parties, are one of the central features of Anglo-American judicial proceedings. They provide fact finders with essential technical information and are authorized to propound a range of opinions and conclusions that other witnesses are not. Their views are often the deciding factor in hard-fought cases. Yet their association with one party and their apparent partiality have long troubled legal commentators. These concerns have grown in recent years along with the perception, not based on a great deal of empirical evidence, that more and more experts are being used to prove more and more different things in modern American trials.

Perhaps because Willard Hurst did not publish his first book, The Growth of American Law, until 1950, more than a decade after he entered law teaching, his readers have often found it hard to imagine him as other than a fully formed scholar. The pluralist politics of his major writings, their functionalist sociology, and their attentiveness to consensus in history have made Hurst seem so much a product of the 1950s that one can easily overlook the ways in which developments in law and politics in the preceding decades shaped his perspective on the American past.

This article analyses domestic law cases brought by former slaves during the decade following the Civil War. It argues that ending slavery was a long and complex process that included not only granting rights to freedpeople, but also subtracting the incapacities previously imposed by bondage and applying certain rights retroactively. Reconstruction-era judges, throughout the era and across the South, overlooked the realities of slavery as a lived institution. Instead, they reimagined slavery as a collection of legal disabilities that could simply be subtracted and summarily resolved. This is how they would carry out abolition. The notion that slavery had to be undone stands in contrast to prevailing scholarship that emphasizes the acquisition and exercise of rights as demonstrative of consummate freedom. Instead, this article shows that even when positive law and judicial rulings were used to deconstruct the peculiar institution, slavery, as a legal construct, could not be fully demolished. Judges and freedpeople alike were left to face troubling legacies for which there was no remedy. No performance of legal acrobatics could alter, undo, or fully resolve the myriad ways slavery continued to affect many former slaves and influence the direction of their free lives. Abolition would remain incomplete.

This article revisits the debates on the question of slave marriage that were carried on for roughly two centuries, both back and forth across the Atlantic and on the local terrain of the British West Indian plantation colonies. These debates came into critical focus during the fifty-year showdown over “amelioration,” which ended—though only in a manner of speaking—with the British Abolition Act of 1833. For a long time the lines were starkly drawn, but, in the context of laissez-faire political imperium or “indirect rule,” seldom tested. The metropolitan authorities felt some obligation to uphold the grand moral and civilizational integrity of the as-yet imperfectly imagined British Empire, as well as of Western Christendom. They, therefore, were inclined to see the slave as a species of imperial subject, still vaguely conceived within the emerging terms of reference of their global trusteeship and presumptive legal jurisdiction. They felt that, to honor the dignity of the latter, and sustain and nurture its moral legitimacy, the slaves—their subjects, ultimately—should be encouraged to marry, and their marriages should be formally marked, if only symbolically or by summary Christian rite. The planters, for their part, were unshaken in their certitude that the slaves were a species of property, their property no less, and that the idea of any kind of formal marriage among them was preposterous, a great impertinence, an attack on their authority and rights of property, a threat to public safety, and a dangerous intrusion upon the sacrosanctity of European racial exclusivity and superiority.

In the spring and summer of 1788, a master was prosecuted for the torture of two female slaves in the French Caribbean colony of Saint-Domingue (present-day Haiti). The exceptional nature of the case was immediately obvious to the participants who lived through it. The governor and intendant of Saint-Domingue—in essence, the colony's chief military and administrative officers, respectively—described it as a “unique opportunity to arrest, by means of a single example, the course of so many cruelties.” In 1788, the most recent victims of this long eighteenth-century history of cruelties included two slaves known only as Zabeth and Marie-Rose, ostensibly tortured because they were suspected of having administered poison to their master and fellow slaves. This article tells the story of the prosecution of the master who tortured them, Nicolas Lejeune.

Private individuals and voluntary associations have dominated the creation and direction of institutions of health, education, culture and good works throughout most of American history. Notwithstanding the great increase of government activity in these areas during the last fifty years, the extent to which private decisions structure public endeavors continues to distinguish our experience from that of other western cultures. Indeed, the unprecedented accumulation of large amounts of private capital which marked the late nineteenth and early twentieth centuries, and the desire of the owners of that wealth to devote some part of it to ‘benevolent’ purposes resulted in the formation of philanthropic foundations, so large in scope and so immodest in purpose, that they continue today to play a major role in our society.

On June 27, 1940, Vera Tiscenko, a Polish actress formerly with the Moscow Arts Theatre, “of her own free will and after due deliberation” embraced the Islamic faith at the Nakoda Mosque at 19 Chowringee Road, Calcutta. Vera Tiscenko's journey from Moscow to colonial Calcutta was a long and tortuous one. Fleeing the country after the revolution, Vera settled in Berlin where she married a Russian émigré, Eugene Tiscenko. Over the next few years they moved across Europe from Nazi Berlin to civil war Spain and finally settled in Mussolini's Rome, where Vera gave birth to a son, Oleg. In 1938, Eugene Tiscenko went to Edinburgh to qualify for a British medical degree, while Vera and her son left Rome for Calcutta after being invited by Professor Shahid Suhrawardy, her former director at the Moscow Arts Theatre. The reason for the separation between the couple remains unclear. Chief Justice Derbyshire was to speculate that Eugene Tiscenko might have intended to settle somewhere in British India after qualifying, but Vera herself admitted that the marriage had been unhappy. Finding “relief and solace in the teachings of Islam,” she cabled her husband the news of her conversion and requested that he accept the Islamic faith. Eugene Tiscenko replied that his religious convictions were unshakable and “refused absolutely” to change his faith.

Speaking at the Travancore legislative assembly on February 2, 1938, Sir C.P. Ramaswamy Aiyar said: “The federation contemplated in the Government of India Act (1935) was founded on the recognition of the fundamental idea that the Ruler alone represents his state and that the Ruler is the government of the state.” Travancore was one of the oldest princely states in India, which antedated the British occupation and claimed a dynastic rule uninterrupted by any foreign or domestic powers. Its history of constitutional reforms and economic advancement enabled it to occupy a pivotal position in colonial India. As the Dewan (prime minister) of Travancore, Sir C.P. played a crucial role in the constitutional debates on the political form of postcolonial India, especially federation, in the last two decades of the British Empire in India. He argued that Indian states were inherently sovereign, and that the only locus of sovereignty in the states was their rulers. In doing so, he imagined a future Indian federation predicated on the idea of divisible sovereignty, which was given constitutional effect by the Government of India (GOI) Act (1935). Sir C.P.'s expositions on the sovereignty of the states and Travancore's constitutionalism offer analytical lenses to recuperate a history of imperial constitutionalism and the grand political project it enabled: Indian federation.

On February 23, 1938, a Jerusalem Military Court convicted Mustafa Mansour of the unlawful possession of a weapon and for opening fire at a bus. The prosecution's key witness tying Mansour to the shooting was, however, not human but canine. Due to darkness the police could not pursue the “brigands” immediately following the incident. They returned at dawn accompanied by Doberman Pinschers. The dogs tracked footprints from the crime scene to the defendant's village, and then to his house, where the police discovered a few rounds of ammunition, some of which were spent.

England's criminal justice system has been depicted as evolving from a preindustrial form in which wide judicial discretion served to legitimate the social order, to a new form where the need to impose industrial discipline on an increasingly urbanized work force produced less harsh but more systematic punishments. According to this vision, the wheels of Victorian justice ground both more gently and more intrusively than they had a century before, since along with the abolition of many capital crimes and the diminishing resort to incarceration went an intensified examination of private lives. As Jennifer Davis has made clear, however, historians of crime often underestimate the degree of continuity between eighteenth- and nineteenth-century law enforcement, particularly at the local level. Significantly, both eighteenth-century justices of the peace and nineteenth-century police court magistrates enjoyed great latitude in their dealings with the poor people who appeared before them. Nowhere is the highly personal and unsystematic nature of modern summary justice more strikingly revealed than in the police court's adjudication of disputes between husbands and wives.

Progressive legal scholars from the 1930s through the 1960s sought to explain why the Supreme Court had set itself in such bald opposition to the concurrent branches of the federal government. The Court seemed profoundly committed, even to the point of risking its very existence, to an ideology that, in Justice Holmes's famously understated phrase, “a large part of the country d[id] not entertain.” What had led to the union between jurisprudence and conservative reaction?

Before the income-splitting joint tax return for husbands and wives became a part of the Internal Revenue Code in 1948, the federal income tax was assessed essentially on an individual basis. The progressive rate structure of the income tax meant that a husband and wife would, as a couple, pay the least tax if their income were divided equally between them. This became a substantial consideration as maximum marginal rates of tax exceeded 90 percent during the 1940s.

In 321 B.C.E., a Roman army led by both that year's consuls was trapped near Caudium, in a defile named the Caudine Forks, the result of a clever strategem devised by the Samnite general Gaius Pontius. According to Livy, writing some three hundred years later, the Samnites had made no plan to capitalize on their good fortune, and so they sent to Pontius's father, Herennius Pontius, to seek his advice. “Let them all go unharmed,” he said. The messenger who returned with that advice was promptly sent back. “All right,” said Herennius, “kill every single one of them.” Unable to decide whether his father had lost his mind, the son had his father brought to the camp, where he gave the same two pieces of advice and justified each. But what would happen, he was asked, “if they are sent away unharmed and conditions are imposed upon them as conquered, in accordance with the law of war (ut et dimitterentur incolumes et leges iis ire belli victis imponerentur)?”1 That practice neither makes friends nor removes enemies, replied the father. Their humiliation will rankle them until they avenge it.

“As punishments become more cruel, men become more ferocious.” That contention, voiced in this instance by a contributor to The Gentleman's Magazine in 1786, had been a respected tenet of Enlightenment penal theory since its articulation by Cesare Beccaria twenty years earlier. In the interim, commentators on both sides of the Channel had continued to theorize about the impact of public physical punishments on the temper of society. Repeated public executions, thought one contributor to The Times, led only to “a shameless apathy”; another cautioned that, “When the wantonness of oppression is made familiar to the eye, the sensibility of the people…degenerates into despondency, degeneracy and stupidity,…” and he repeated Montesquieu's sinister simile likening the tranquility of such a state to the mournful silence of a city that the enemy is about to storm. In the aftermath of the French Revolution, however, such speculation took on the chilling force of prophecy fulfilled, and for the next fifty years a chorus of increasingly alarmed English voices warned of the potential for insurrection inherent in physical punishments. Continued recourse to public executions, a “festival of blood, [was] calculated to shock or brutalize the feelings of man, [to] encourage ferocious habits in the people.” “Revolutions,” trumpeted the Morning Herald in 1835, “are always most bloody in countries whose laws have most familiarized the people with spectacles of vengeance.”

These two fascinating articles seek to fill an important lacuna in the burgeoning literature on the legal construction of whiteness. While LatCrit theorists in the legal academy have urged civil rights scholars and race critics to transcend the “black-white paradigm” of U.S. race studies, the majority of legal histories of whiteness have focused on two sets of cases: trials in the southeastern United States in which local courts tried to draw the line between “white” and “negro”; and cases about immigration and naturalization in which Federal courts determined whether particular foreign immigrants were suitably “white” for citizenship. Likewise, although there have been several important social and cultural histories of Texas Mexicans and whiteness in the last fifteen years, they have not considered the legal realm. The time is ripe for attention to the legal history of Mexican Americans' civil rights struggles in Texas, especially as they illuminate the shifting racial identity of Mexican Americans in the Southwest.

By the close of the nineteenth century, most continental Europeans tacitly accepted, if they thought about it at all, the notion that a civil code governed multiple personal and familial relationships in their daily lives. Like so many legislative structures, intellectual suppositions, and cultural artifacts, what was once regarded as a novel or even a major break with the past came to be understood as one of the many requisites of modernity. Contemporary historians have adopted a similarly indifferent posture, their curiosity only piqued when encountering specific provisions entangled with other political issues. In a strikingly dissimilar approach to that adopted toward penal law, they have been disinclined to explore the relationship between civil legal endeavor and political culture or the history of ideas. Only with respect to Germany have scholars considered these topics worthy of in-depth analysis; in so doing, they have demonstrated that understanding juridical culture is fundamental to appreciating the textures and peculiarities of the liberal nation state.

Slave law in early Louisiana is of great interest because it was shaped by three major European legal traditions under the rule of France (1699 to 1769), Spain (1769 to 1803), and the United States (after 1803). In this article, the types and origins of slave laws in early Louisiana and their application in the slave society of New Orleans is examined. Several different imperial, local, and mixed codes were ordained in the colony to govern relations between masters and slaves, and these laws reveal either the political strategies of imperial policymakers or the social tactics of slaveowners, but very little about actual slave treatment. The administration of justice in New Orleans was mostly determined by the planters: local needs and ideals prevailed when they conflicted with those represented by the crown's laws, and the courts rarely interfered with the authority of indivdual slaveowners over their chattels.

Two legacies vie to take the measure of the work of Willard Hurst. The first understands Hurst primarily in his formal role as the “founding father” of an academic sub-specialty known as “American legal history”—the author of a canonical text Law and the Conditions of Freedom, and the coiner of interpretive phrases like “legal instrumentalism” and “the release of energy” that established the boundaries of disciplinary debate for two generations of acolytes and dissenters. The second legacy flows from the substantive range of Hurst's research and writing as a whole—the depth and breadth of an intellectual project that tears at and transcends the very disciplinary borders being constructed by his texts and phrases. In this essay, I will ignore the first perspective, which tends to dominate hagiographic and commemorative commentaries.