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.”

A number of works have recently been published that seek to re-narrate colonial histories, with a particular emphasis on the role of law in at once creating and marginalizing colonial subjects.1 Focusing on mid-twentieth century detention camps in the British colony of Kenya, this article illuminates a colonial history that was deeply buried in a Foreign and Commonwealth Office (FCO) building for many years. As such, the analysis supports the revelatory work of David Anderson and Caroline Elkins, who highlighted the violence that underpinned British detention and interrogation practises in Kenya.2 In particular, the article explores recently declassified colonial files, and pieces together a picture of administrative subterfuge, suppression of facts, and whitewashing atrocities, threaded through with official denial, which long outlived its colonial genesis. Against the hypothesis that detention laws created an architecture of destruction and concomitant custodial violence in Kenya, the article establishes that an accountability deficit is the legacy of detention without trial as it was practiced in colonial Kenya. By untangling a complex web of colonial records and government papers relating to Kenya, this article reveals the often insurmountable pressure that was exerted to conceal evidence of detainee violence, and the role of a highly sophisticated propaganda machine that controlled the public narrative of a violent incident when outright denial was impossible.

For historians and property law scholars, the abolition of the fee tail estate in land by many states during the American Revolutionary Period serves as a principal symbol of the power of republican ideology during the Founding Era. Political leaders of the Founding Era deplored the system of hereditary privilege that defined the European aristocratic political order. Property served as the foundation of that order: political, economic, and social privileges were associated with ownership of landed estates. Property and inheritance law enabled families to retain land, and, therefore, the privileges associated with landed estates, over the generations. Therefore, American historians celebrate the abolition of the fee tail estate and primogeniture by some states as a practical and tangible achievement of the Republican Revolution.

This article explores a puzzle in Canadian legal historiography: the meaning of “British justice” and its relationship to race. Scholars have noted the use of this term in the interwar years of the twentieth century, to object to demonstrations of racial bias in the legal system. The puzzle is why. From the mid-1850s onward, statutes aimed at circumscribing the rights and opportunities of aboriginal people multiplied. British Columbia passed anti-Chinese, anti-Japanese, and anti-Indian legislation. Saskatchewan prohibited Chinese and Japanese employers from hiring white women. At least some officials supposed that legislation targeting African Canadians would be permissible. In 1924, the Toronto Telegram called for a poll tax against Jews. It is clear that between 1880 and 1920 or thereabouts, federal and provincial law was deeply involved in creating and reifying legal categories that rested explicitly on physical distinctions perceived to exist among people, which were assumed to signal morally and legally relevant characteristics. Why, then, would anyone have thought that “British justice” should be a shield against racism?

In 1706, Jamaica's provost marshal received a writ of escheat from the island's Supreme Court of Judicature. The writ directed him to empanel a jury of “Twelve and Lawful Men of the Neighbourhood” who would determine whether the slaves of James Whitchurch, a Jamaican merchant, should be escheated—returned—to the Crown. Did the “Negro Woman Slave Commonly Called Catalina” and her “Seaven Pickaninny” belong to Whitchurch, or could Queen Anne claim her prerogative right to an escheat because the previous owner of the slaves, Charles Delamaine, had died without an heir? The jury found in the Crown's favor, but a dissatisfied Whitchurch petitioned Queen Anne for relief, asking her to return the slaves and quiet his title. Whitchurch's petition, the first Jamaican escheat case to come before the Queen, sparked a transatlantic legal controversy as colonists, Assembly members, and imperial officials weighed the Crown's prerogative right to escheats against local political grievances and the Board of Trade's desire to encourage West Indian settlement and trade. This seemingly mundane conflict over property law quickly acquired constitutional significance, generating the kind of rights talk so familiar to early American historians: Jamaican colonists claimed the rights of Englishmen, and the Jamaican Assembly asserted an institutional capacity akin to Parliament. In this article, I contextualize colonists' rights talk, rooting their claims to English rights in concerns about the administration of property law during a crucial liminal moment in Jamaican history. As the colony transitioned from a small-scale to a large-scale plantation economy and from a society with slaves to a slave society, property and the law that governed it became the focus of intense political conflict.

In Romans 13:5, St. Paul famously announced that Christians must obey law not only for fear of punishment, but also “for conscience sake.” Early modern Protestants and Catholics agreed that violations of laws that bound conscience, if unrepented, threatened damnation. But not all law obligated conscience. Natural law typically did. So did Jesus's injunctions and God's moral law revealed in the Old Testament, but not His judicial law governing civic affairs or His ceremonial law regulating Jewish religious observance. Human laws about things indifferent, matters neither commanded nor forbidden in scripture and nature, presented the most complicated case. Disobedience to only certain classes of human laws—but not all—imperiled the soul. Catholics and Protestants fiercely debated how to distinguish rulers’ ordinances that bound conscience from those that did not. This article explores the principles that animated the dispute and the methods used for linking human law to the fate of the soul or challenging that connection.

For most historians, William Wilberforce is not immediately associated with the history of capital punishment, at least not beyond his occasional efforts to solicit mercy for individuals sentenced to death, and his distinctly subaltern role in the decisive early nineteenth century parliamentary debates over the abolition of the death penalty in England. Most scholars concern themselves with the first of the two “great objects” of which, in a diary entry for October 28, 1787, Wilberforce declared that “God Almighty has set before me … the suppression of the slave trade and the reformation of manners.” That concern is easily justified: the abolition of the slave trade quickly became the central preoccupation of Wilberforce's public life, and its implications were of global significance. His second professed mission of 1787 onwards—to help launch and sustain the Society for Giving Effect to His Majesty's Proclamation against Vice and Immorality—has inspired a smaller, although no less rich, body of scholarship. Our broad perspective on Wilberforce's public life remains that which was first laid down half a century ago, and which has subsequently been reinforced by historians of gender such as Leonore Davidoff and Catherine Hall. Wilberforce and his associates are principally seen as the progenitors of nineteenth century moral earnestness and spiritual idealism, as well as the feminine ideal of “the Angel in the House.” They were, as Ford K. Brown suggested in 1961, the “Fathers of the Victorians.”

In 1860, unfenced land across the South was open to the public. No state criminalized trespass, and the range was closed in only part of one county. Elsewhere, some states had closed the range, but most unfenced land in the United States was open to the wanderer. In the former Confederacy, fresh elections were held in 1865, and legislatures moved quickly to criminalize trespass, restrict hunting and fishing, and close the range.

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.

A central goal of the lunch counter sit-ins of 1960, the protests that launched the direct-action phase of the Civil Rights Movement, was to give new meaning to the very idea of “civil rights.” To the students who took part in the protests, civil rights work entailed litigation and lobbying. It required relying on the older generation of civil rights activists and working through established civil rights organizations. It meant surrendering student control over the demonstrations. And, as the great unrealized promise of the then 6-year-old Supreme Court ruling in Brown v. Board of Education made painfully clear, it meant patience. For the thousands of students who joined the sit-in movement, reliance on their elders, litigation, and patience—the stuff of civil rights, traditionally understood—was precisely what they wanted to avoid.

One of the most striking changes in the penal culture of fin-de-siècle Europe was England's reform of adjudication and punishment. In this “de-moralization of criminality,” the system began to shed its punitive sentencing, which often saw minor offenders imprisoned with hard labor for weeks or months, to adopt a more moderate system of penalties. These concrete changes were intertwined with a broader shift in British criminological thinking from a “classical” view to a “positivist” one. The former held offending to be a rational, individual choice that required severe deterrents, whereas the latter saw criminality as a product of harsh economic and social conditions. This shift in dominant understandings of criminality prompted reformers, judicial officials, police, and policymakers to refocus on the causes of crime and its prevention, the offender as a subject, and the potential for treatment and rehabilitation through state intervention. A central practice of the resultant “penal-welfare complex” was supervised probation as a substitute for imprisonment. Scholars of penal reform have argued that the passage of the Probation of Offenders Act 1907, which initiated the professionalization of the probation service, was a key moment in this transition. With it, such arguments hold, England took a substantial step from having a discretionary, moralized criminal justice system toward having a standardized, bureaucratic one.

In 1795, a disgruntled George Wythe published his own edition of decisions from Virginia's newly formed High Court of Chancery, of which he was the sitting judge. Wythe's volume was replete with rebukes of his fellow justices in the court system for their lack of erudition and grounding in the distinctive principles and procedures of common law and chancery jurisdictions. His own copy of the volume, which, like many of his books that found their way into the library of his prize pupil, Thomas Jefferson, includes Wythe's handwritten appendix to the series of references he had made to classical literature and rhetoric in his own remarks, including several to the legal arguments of Demosthenes, and most strikingly to Sophocles' Antigone. Like much of their correspondence, their respective legal arguments as attorneys, and Thomas Jefferson's own massive commonplace books of common law and equity jurisprudence, Wythe's extensive commentaries signify not only the continued appeal and display of an early modern humanist legal and intellectual culture, but also the centrality and power of the idea of equity in that culture and for its successors acting in the Atlantic and imperial constitutional crisis of the second half of the eighteenth century.

Scholars today are unanimous about the existence of a forum internum in the Western church since the rise of scholastic theology and jurisprudence in the twelfth century. From that time onward, they agree, an “inner court,” dedicated exclusively to individual believers who confessed their sins in absolute secrecy to a priest was sharply distinguished from the so-called forum externum, which dealt with publicly alleged breaches of the canon law.

Since its introduction into North America in the late nineteenth century, direct democracy, particularly in the form of direct legislation, has periodically piqued the interest of legal scholars. A handful of studies have examined the history of direct legislation in the United States and in Canada; however, these studies often fail to examine how direct legislation was actually used. Brief references might be given to which initiatives the voters attempted to secure via direct legislation, but the actual mechanics of the vote, and questions such as what the ballot said, for example, are typically overlooked.