Social and legal historians have long been attracted to well-publicized court cases as primary sources for illustrating the feelings and attitudes of particular historical settings. Such cases are frequently extensively documented, and the detail of their reporting often seems to provide unique insight into the thoughts, attitudes, and even the speech of a past not otherwise accessible. Use of the “famous case” as an image of its time is tempting and can be rewarding if its limitations are recognized. By definition, the “famous case” involves extraordinary events and/or extraordinary personages. Cases of this nature cannot therefore be taken as representative of all that they portray.

Colonialism was always an uncertain process. Even the imposition of colonial law was fraught with incomplete application, resistance, and the reinterpretation of European categories in indigenous terms. Magistrates often operated with fragmentary and inaccurate understandings of local cultural practices and rules, seeking to rectify this disadvantage by relying on local experts yet unable to adjust their decisions according to the class and kin interests of these experts. Staffing was often limited, local linguistic knowledge lacking, and a sociological understanding of how custom operated according to social status and shared knowledge of individuals often missing. Colonial officials faced the problem of limited capacity and large populations to manage and govern. Indeed, recognition of distinct regimes of personal law was one solution to the dilemma of the need to control populations at the lowest possible cost. Even though retrospective histories tend to emphasize the transformative power of colonial law, as this collection shows so well, at the time the practices were far more ambiguously linked to the power to change. Instead, they created spaces for contestation and agency. However, these wonderfully detailed and careful studies also show that despite creative uses of the courts, women often did not succeed in legally challenging the marriages that bound them.

The punishment prescribed by English law for murder in the first half of the twentieth century was death. A judge had to pronounce this sentence upon a person convicted of murder, except in two special classes of cases: persons under eighteen years of age at the time of the offense and pregnant women. He had no discretion to impose any less severe sentence. While retribution survived only in a symbolic form elsewhere in the criminal law, capital punishment, as Oxford criminologist Max Grunhut maintained, was a “powerful relic of retaliation in kind.” The law still reflected the ancient concept that every murderer forfeits his life becauce he has taken another's life: “He that smiteth a man, so that he die, shall be surely put to death.”

Sir Henry Maine, the eminent Victorian jurist, once remarked, in frustration at being unable to secure his desired reforms of the Indian criminal law, that no one cared about the penal code except theorists and habitual criminals. This has been the recurrent lament of the English criminal lawyer. Repeated initiatives in the field of codification over the last 150 years have enjoyed little popular support or understanding, and as the most recent project stumbles forward into its fourth decade, an air of fatalism surrounds the entire question of the code. There are calls for a new political initiative to revive the project, and there have been more modest appeals for a reexamination of the principles of existing penal legislation, though neither seems likely to provoke much response. Yet, for all of the recent discussion of codes and codification, the question of the significance of codification to the modern law remains something of an enigma.

In 1614, an angry pamphleteer writing in the name of six peasants described for his French readers how the country was being taken over by lawyers. Legal officials had swelled their purses, bellies, and heads by gobbling up the rest of France; they were like a growing infestation of “leeches,” he exclaimed passionately, “that suck our blood right to the bone.” These judicial parasites were so disgusting that one should not even consider them a part of society; they were a foreign substance “born of putrefaction and living off putrescence.”

In 1860 and again in 1864, Alexander Spiers appeared before the insolvency court in Sydney, endeavoring to explain his failure in business. He was described as a milliner in the records but he had never made a bonnet in his life. The real milliner and businesswoman was his wife, Ann Spiers, who had been running her business since her marriage in 1846. She made purchasing and pricing decisions, managed staff, was the front person in the shop, and advertised in newspapers. She told the insolvency court in 1860 that her husband “used to keep the books and attend to the house business but he never sold anything in the shop. He used to mark the goods occasionally.” Alexander Spiers similarly distanced himself. “My wife put the value upon the articles in our stock,” he said. “She is much better acquainted with their value than myself.” In spite of this, it was Alexander Spiers' name that was on the insolvency papers. Under the law of coverture, he was responsible for his wife's debts and her business legally belonged to him.

At least once during his tenure, the royal governor of colonial New York received a list of questions from London. The Board of Trade, which recommended colonial policy to the king's Privy Council, sought information about the province's geography, population, trade, and legal regime. This last question often came first: “What is the constitution of the Government?” The responses, from the first British governor in 1669 to the last before the Revolution, described the imperial arrangement as a hierarchy of power flowing directly from the Crown. In 1738, for example, the lieutenant governor wrote that “The constitution is such as his Majesty by his commission to his Governour directs, whereby the Governour with the Council and assembly are empowered to pass laws not repugnant to the laws of England.” A decade later, Governor George Clinton replied more insightfully, with the help of his closest advisor, Cadwallader Colden: “The constitution of this Government is founded on His Majesty's Commission & Instructions to his Governor. But the assembly have made such Encroachments on his Majesty's Prerogative by their having the power of the purse that they in effect assume the whole executive powers into their own hands.”

Hannah Flynn was sentenced to death on February 27, 1924. She had been convicted of the murder of Margaret O'Sullivan, her former employer. Hannah worked for Margaret and her husband Daniel as a domestic servant, an arrangement that ended with bad feeling on both sides when Hannah was dismissed. On Easter Sunday, April 1, 1923, while Daniel was at church, Hannah returned to her former place of work, and killed 50-year-old Margaret with a hatchet. At her trial, the jury strongly recommended her to mercy, and sentence of death was subsequently commuted to penal servitude for life. Hannah spent almost two decades in Mountjoy Prison in Dublin, from where she was conditionally released on October 23, 1942 to the Good Shepherd Magdalen Laundry in Limerick. Although there is no precise date available for Hannah's eventual release from there, it is known that “a considerable time later,” and at a very advanced age, she was released from the laundry to a hospital, where she died. The case of Hannah Flynn, and the use of the Good Shepherd Laundry, represents an explicitly gendered example of the death penalty regime in Ireland following Independence in 1922, particularly the double-edged sword of mercy as it was experienced by condemned women.

Since the last century canon-legal historians and, more recently, social historians have examined a variety of questions concerning the social and legal aspects of marriage in the later medieval period. Particular significance has been given to the synthesis by Alexander III of existing sacramental and legal opinion concerning marriage in the twelfth century. His synthesis produced a doctrine in which marriage was viewed as a purely consensual union. Any two legally entitled adults could contract marriage by words of mutual consent. A twofold distinction existed in the nature and intent of these words. On the one hand, a binding and immediately effective union was created through the exchange of words of present consent (per verba de praesenti). Neither publicity, nor church solemnization, nor indeed consummation added anything to the validity and permanence of such a contract. On the other hand, a promise to marry was expressed by words of future consent (per verba de futuro), which might be terminated by the agreement of the parties or by a subsequent de praesenti contract. If, however, a de futuro contract was followed by intercourse, it took upon itself the legal mantle of a de praesenti contract, and what was initially only a promise to marry was transformed into a binding marriage.

The action of covenant before the reign of Edward III is a subject of considerable mystery. By the time that the Year Books come to the fore in the last decade of the thirteenth century, it has become a relatively scarce form of action in the royal courts, and consequently our sources of information are fairly scanty; in addition, by this time, the restrictions which limited the potential of covenant as a general contractual remedy are already firmly in evidence, with the result that the development of these restrictions is not easily visible. There is, though, a considerable amount of additional material in the rolls of the Justices in Eyre in the reign of Edward I, and in some of the multifarious tracts on pleading which proliferated in the later years of the thirteenth century and which have remained for the most part in manuscripts which have not been systematically examined by legal historians.

“Take the census; make the country. Let's do both together!” “Hacer censos, es hacer Patria. Ayúdenos a hacerlos” cajoled one bold, bright poster in the days before May 15, 1930 when census takers dispersed across Mexico to count its inhabitants. Other placards similarly played on multiple meanings for the verb “hacer”—to make or to do: “Taking a census will make the country …” “Hagamos censos y haremos patria…” At the same time, within that collective nation-building, a census jingle affirmed individual importance: “A census is a count. He who is numbered, counts. And he who counts, succeeds.” “Un censo es una cuenta. El que censa, cuenta. Y el que cuenta, acierta.” In government propaganda, the 1930 census made Mexico and drew its inhabitants into the national fold, an ongoing, delicate project after the fratricide of the 1910 Revolution.

The urbanization of nineteenth century America led to enormous changes in American criminal justice, as the rise of this dramatically more complex kind of human settlement posed new problems for legal regulation. Some of those problems are familiar. Many reformers emphasized the way cities eroded traditional controls on predatory crime, and they viewed modern police forces, public prosecution, and the modern penitentiary as a means of substituting formal social control for the informal controls of the past. But cities posed a different problem as well. In the city people made their homes in dense mixed-use environments that had not yet been sorted out and segregated along the lines of the modern metropolis, and when they ventured out of them they came together in the crowded streets, squares, and parks that proliferated in the nineteenth century. This complex environment made new demands on their behavior, as conduct that would have bothered no one in sparsely occupied rural spaces became problematic in the densely shared environments of the city. This change did not involve the collapse of old strategies for controlling familiar forms of bad behavior; it involved a shift in what sort of behavior counted as “bad” in the first place. The continued evolution of the urban environment, in turn, depended upon the ability of criminal justice institutions to grapple with these challenges. Shared environments require those who use them to develop and enforce rules to regulate the sharing.

The Enlightenment was the age of empathy and abstract identity. The common man no longer was to be pitied for his unfortunate plight. Instead, enlightened gentlemen and reformers strove to empathize with the ordinary person—identify with him—precisely because he was identical to them in some fundamental sense. That sense differed from Enlightenment theory to theory, but the identity remained central. So Bentham insisted that every member of the utility community was like any other because every member's pain and joy equally affected the utilitarian calculus and thus the common good. Contractarians like Beccaria or Fichte portrayed all citizens as identical insofar as they were all signatories to the social contract, a contract grounded in the shared rationality of its signatories who surrendered some of their external freedom to pursue their life plans protected from the chaos of the law of nature. And Kant and Hegel stressed the common capacity for rational deliberation shared by all humans as rational beings.

In his commentary, “The Historiography of Difference,” Kunal Parker hits on two crucial and interrelated themes that form the framework for debates in modern South Asian history: colonialism and subaltern agency. In this short response to Parker's comment, I address both of these issues and also offer some insights about methodological obstacles in the writing of Indian legal history.

Finding emotions in medieval and early modern sources is one of the more difficult challenges currently facing historians. The task of uncovering emotions in legal records is even more fraught. Legal sources were precisely crafted to meet legal requirements and jurisdictional issues. Equally, emotions were not part of the jurisdiction of any court in the late Middle Ages or early modern period and there was no legal interest in eliciting them from litigants. Why then would we begin to think it is possible to find emotions in these legal records? This article invites social and legal historians to begin considering these questions by investigating the emotions in cases brought into the court of Chancery between 1386 and 1558.

Constitutionalism in Mexico, indeed in Latin America generally, has always posed a problem for interpreters, especially for Anglo-American interpreters. It is true that adherence to a written constitution and to constitutional order has been central to Mexican political liberalism since independence. As a state-building philosophy, liberalism has functioned both as an ideology, in combat with inherited colonial and Hispanic patterns of government, and as an all-embracing myth serving to unify contending self-defined liberal factions. In both instances, liberals fought for, debated, and on occasion were able to implement basic Western constitutional principles, namely, the preservation of individual liberty and legal equality within a representative government whose powers were set out and limited in the articles of a written document. The problem of interpretation arises because of a widespread view that constitutional government in Mexico has been ineffective or, at best, that the struggle to achieve it has been arduous.

In 1773, with the empire on the brink of revolt, the Privy Council gave the final ruling in the case of the Mohegan Indians versus the colony of Connecticut. Thus ended what one eighteenth-century lawyer called “the greatest cause that ever was heard at the Council Board.” After a decades-long battle for their rights, involving several appeals to the Crown, three royal commissions, and the highest court in the empire, the Mohegans' case against Connecticut was dismissed. The dispute centered on a large tract of land (~20,000 acres) in southeastern Connecticut, which, the Mohegans claimed, the colony had reserved for them in the late seventeenth century. Concerned that the colony had violated its agreements, the Mohegans, aided by powerful colonists with a pecuniary interest in this tract of land, appealed to the Crown for redress. As a result of this appeal, what had been a narrow dispute over land became part of a larger conflict between the Crown, the colony, and the tribe over property and autonomy in the empire.

In 1930 Richard B. Morris published Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries. The monograph included a chapter on the legal status of colonial women that became extremely influential within a short time of its appearance. Morris's influence continues half a century later. Several books published in 1980 cite him as one of their primary authorities on women's rights: Linda K. Kerber, Women of the Republic: Intellect & Ideology in Revolutionary America; Lyle Koehler, A Search for Power: The ‘Weaker Sex’ in Seventeenth-Century New England; and Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800. Other influential books and articles also rely heavily on Morris, including A Little Commonwealth: Family Life in Plymouth Colony by John Demos, ‘The Illusion of Change: Women and the American Revolution,’ by Joan Hoff Wilson, and ‘The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson, 1800–1840,’ by Gerda Lerner. In fact, almost every published sentence on women's rights in early American law is followed by a footnote citing chapter three of Studies in the History of American Law. In The Bonds of Womanhood (1977), Nancy F. Cott declared that Morris's chapter ‘has become the standard essay on colonial women under the common law.’

An inquiry into law in Manchukuo might seem, at first glance, to be something of an oxymoronic task. The state itself was created in clear contravention to international law, and when the investigation of the Lytton Commission stated as much in 1933, Japan walked out of the League of Nations, the closest the world had to an international arbitrational body at the time. Within Japan itself, the creation of Manchukuo could be considered the point of no return in the march toward wartime militarism. After this event, arbitrary and military power ran roughshod over civilian institutions of governance, so much so that some scholars of Japanese legal history characterize the period as the “collapse of the legal system” (hō teisai hōkai).

The Prosecution Project <https://prosecutionproject.griffith.edu.au/> is a large-scale digital project that aims to provide a new way of exploring the context and impact of changes in the criminal trial during the nineteenth and twentieth centuries. It does so from an elementary platform: the digitization of the court calendars of criminal trials in the higher courts in the six main Australian jurisdictions over time periods as long as 130 years. The objective is to address questions of the criminal justice process centered on prosecution, from arrest, committal, and indictment, to verdict, sentence, and beyond. In a field of historical research that is more often characterized by the richness of discursive analysis, the Prosecution Project's comparative data sets are designed to offer a new understanding of quantitative context over long periods of time. The challenge of building the data platform is, however, considerable, requiring significant planning, collaboration and investment by a large number of researchers, working with relevant archive repositories, and, in this case, assisted by the engagement of an interested community lying outside the regular academy. This article describes the background to the project, its development as a collaborative digital initiative, and its technical and organizational requirements and possibilities, before we explore briefly some of the research outcomes that this project makes possible.