It is a belief almost universally shared that the Clandestine Marriages Act of 1753 gave parents absolute control over the marriages of their minor children, and that a failure to obtain parental consent rendered a marriage void. For almost seventy years this Act was in force, from its implementation on March 25, 1754, until it was repealed by the Marriage Act 1823. In this same period historians have discerned the rise of the affective family, characterized by marriage for love and by equality between all members of the family. The tension between these two ideas has resulted in some rather tortuous explanations being advanced in an attempt to reconcile affective individualism and parental power. But was the period between 1754 and 1823 as distinctive as has been assumed?

The four articles in this special issue experiment with an innovative set of questions and a variety of methods in order to push the analysis of slavery and the law into new territory. Their scope is broadly Atlantic, encompassing Suriname and Saint-Domingue/Haiti, New York and New Orleans, port cities and coffee plantations. Each essay deals with named individuals in complex circumstances, conveying their predicaments as fine-grained microhistories rather than as shocking anecdotes. Each author, moreover, demonstrates that the moments when law engaged slavery not only reflected but also influenced larger dynamics of sovereignty and jurisprudence.

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.

The impeachment trial of Warren Hastings has long been considered one of the key political trials in the history of the British empire. It was the first major public discursive event of its kind in England, and arguably in Europe as a whole, in which the colonial ambitions and practices of European powers in the east stood exposed to a close and comprehensive critique. In addition, the legal and moral legitimacy of colonialism itself was thrown into question before the highest judicial body in Britain, the House of Lords. The fact that the prosecution was led by Edmund Burke, one of the most articulate and prescient political statesman of modern Europe, has only added to the trial's enduring significance as a moment of critical reflection on colonial practices. Indeed, it could be argued that it was on this occasion, and in this act of defending the rights of an alien population against coercive colonial rule, that some of Burke's long-held political and ethical convictions found their clearest expression.

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.

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.

The historian Charles Payne has described Brown v. Board of Education as “a milestone in search of something to signify.” Widely hailed as a symbol of Jim Crow's demise, the case is popularly understood to represent America at its best. For many, Brown symbolizes the end of segregation, a national condemnation of racism, a renewed commitment to the ideal of color-blind justice, or some combination of all of these, but Brown is equally affirmed in less celebratory narratives, in which it is seen to articulate a constitutional aspiration against which the injustice of current racial practices can be measured. Unlike the celebratory Brown, which indulges a fantasy of completion or accomplishment, this aspirational Brown marks “an appeal to law to make good on its promises” of equal citizenship and racial democracy, even if that promise remains as yet largely unfulfilled.

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.

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.

Sometime during the middle of the nineteenth century, a correspondent from the interior of Oman wrote to the jurist Sa‘id bin Khalfan Al-Khalili (c. 1811–70) with an observation: “The Mazru‘is have wealth on the Swahili coast [al-Sawāḥil] and wealth in Oman.” This in itself was no surprise: the Mazru‘is, along with scores of other Arab clans, included a branch that had long since established its political authority in Mombasa, on the coast of what is now Kenya, but lately, the correspondent suggested, things had been changing. Members of the Mombasa Mazru‘is were now coming to Oman armed with wakalas (powers of attorney) from unknown scribes, for the sale of their familial properties in their ancestral homeland. “He [the Mazru‘i] sold what God likes from these properties and took the value… and the yield was separated from the property owners.” The people's acquiescence to the state of affairs was of particular surprise to the questioner. Days, months, and years went by, he noted, and the property owners (arbāb al-amwāl) did not seem the least bit interested in changing the system, “and the people, as you well know, come and go via this sea, from Oman to the Swahili coast, with confidence that they know [bi-ḥukm al-iṭma'ināna annahum ‘alamū].”

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.

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.

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?

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.

“Crime is a great leveller,” stated Western Australia's The Inquirer in October 1853. “Policy requires that we should convince the native population that in our Courts of Justice they really are what we profess and tell them they are—the equals of the white man, whatever they may be elsewhere.” The Inquirer was responding to a case that had just come before Perth's Quarter Sessions, in which John Jones was tried for the murder of Neader in the colony's southwest. Jones was found guilty of manslaughter and sentenced to transportation for life. Given that Australia's colonies were notable for their failure to bring settlers to trial for violence against Aboriginal people, it is significant that The Inquirer's editor did not regard Jones' conviction and sentence as a sign that the Courts of Justice were working as they professed to do. The charge was one of wilful murder, and the evidence indicated that “if ever a foul and deliberate murder was committed, it was on the occasion which led to this trial.” The verdict that Jones was guilty only of manslaughter, he continued, was indicative of the jury's disregard of the law's impartiality when a white man was on trial for the murder of an Aboriginal man. If the law was to make a distinction between white and black, “let it be declared: but to say there is none, and to act as if there were, is a mockery.”

On July 31, 1944, Rikizo Yoneyama, a former resident of Haney, British Columbia, an agricultural area east of Vancouver, wrote to the Canadian Minister of Justice to protest the sale of his property. Two years earlier, when he and his family had packed their belongings for their forced expulsion from coastal British Columbia, they could take with them only what they could carry and, like other displaced people, they left much behind. “I realize that we are the victims of a war emergency and as such are quite willing to undergo … hardship … to help safeguard the shores of our homeland,” wrote Yoneyama, “however, I do urgently desire to return to my home … when the present emergency ends. May I plead your assistance in the sincere request for the return of that home?” When letters like his did receive a response from the federal government (there is no record that he did so in this case) it came in the form of standard letter, acknowledging that “the disposal of … property will be a matter of personal concern” but informing Japanese Canadians that, in conformity with a new federal law, everything, including their homes, would be sold.