Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws created to restrict the liberty of some individuals or class of individuals in order to protect the public good are in effect outcomes of tradeoffs between abstract universals, namely liberty and the public good. A three way relationship is imagined in which law, liberty, and the public good are in creative tension. The role of the law in this three way tension is further imagined to be the mediator where it serves to calibrate this tension in ways that are also assumed to legitimate the intended outcomes in practice. In particular, where the outcome is the prevention of harm, then laws that curtail liberty must be seen not just as measures for the public good, but rather as necessitated by the potential effects of the very harm itself. The justification for this view is often traced back to the views of nineteenth century political philosopher John Stuart Mill, who famously expressed this in terms that have become known as the “harm principle”; specifically that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Notebooks written by students at the Litchfield Law School are among the primary sources for understanding the influence of English law in this country. The notebooks provide rich documentation of how the common law and elements of English law were presented, explained, and compared with American law in a formal classroom setting during the Early Republic. The digitization project described here, the first large-scale digitization initiative undertaken at the Lillian Goldman Law Library at Yale Law School, with the cooperation of the Litchfield Historical Society, is intended to organize, describe, and analyze those notebooks with a web site containing a database, bibliography, inventory, and links to images. The Litchfield student notebook project was intended not only to create digital surrogates of important historical sources, but also to inform future digital legal history projects at the Lillian Goldman Law Library.

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.

John Locke worried that the common law was bad for business. Although he recognized the political importance of common law institutions such as juries, he also thought that the cumbersome procedures of English courts might hamper economic development in England and its colonies. The Fundamental Constitutions of Carolina, which Locke helped draft in 1669, tried to reconcile these competing political and economic concerns. Although the Constitutions guaranteed “Freemen” a right to trial by jury, the document also provided for specialized judges in port towns to “try cases belonging to [the] law-merchant.” These commercial judges would allow merchants to settle their disputes “as shall be most convenient for trade,” rather than by the expensive formality of the common law.

The generation of legal historians working in the opening decades of the twenty-first century have an opportunity to use digital technology to bring the sources of legal history to a wider audience of scholars and to facilitate the research of future scholars for many generations to come. I say this because, commencing in 1999, I compiled a searchable database of identifying information about and content of the 22,318 reports in the Year Books, cases decided in England's courts of common law between 1268 and 1535. With the generous support and sponsorship of the Ames Foundation, my database has become an online scholarly resource used frequently by researchers and students of English legal history and other disciplines. This has been the most rewarding experience of my scholarly career. Projects such as the one I undertook, and which I call “big legal history,” can require a number of years to complete, as in my case, or else a team of scholars whose contributions all need to be closely coordinated. Because the compilation of large digital resources does not fit the typical career path of most legal historians, I offer here an account of the origins of my project, some of the choices that I had to make at its outset, the progress that I made, and the rewards that I have received along the way.

During the interwar period, the League of Nations led an international campaign against traffic in women. Although important research about the League's work has started to appear, historians have concentrated on the “white slave trade” in the decades before the First World War. From 1924 to 1926, the League conducted the first intercontinental study to determine the number of women caught up in the traffic, and to map the strategies and routes used by traffickers. Undercover investigators visited more than 100 cities across Europe, the Mediterranean, and the Americas. The investigators talked to thousands of prostitutes, pimps, brothel-keepers, and others engaged in the sex trade. The “worldwide” investigation was not only the most significant aspect of the antitrafficking campaign in the interwar years, but also of the League's effort to build an international legal regime on a foundation of sociological jurisprudence.

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.

Sometime in early 1434, two northern Italian counts, Francesco Pico della Mirandola and his brother Giovanni, sent a letter to Pope Eugene IV (r. 1431–47). Out of concern for their subjects, who had long suffered from a shortage of credit, Francesco and Giovanni had allowed some Jews to settle in their lands and lend at interest. In addition, the brothers had rented a house to these Jews for the purpose of moneylending. At the time, the noblemen stressed, they had not believed their actions to be unlawful. They had since come to fear, however, that they had inadvertently brought automatic excommunication upon themselves by violating the provisions of Usurarum voraginem, a decree first issued at the Second Council of Lyon in 1274 that called on secular and religious authorities to refuse lodging to foreign usurers and, in addition, to expel such usurers from their lands. The brothers' uncertainty, the petition noted, reflected the varied opinions of contemporary jurists (presumably those at Bologna, a mere 60 kilometers away), who disagreed on whether the decree was to be understood in reference to Jewish as well as Christian moneylenders. Deciding to err on the side of caution, the brothers petitioned the Holy Father to grant them absolution, if they had indeed incurred ecclesiastical censure through their actions. In addition, they asked to be granted a dispensation allowing the Jews to remain in their lands, so as to spare their subjects from even greater economic misfortune.

In October 1934, agents from the Chinese Maritime Customs Service received a hot tip that an otherwise unremarkable village off the coast of Shandong was hiding valuable contraband. A search party dispatched to investigate verified the claim after raiding several homes and uncovering sixty-nine bags of sugar. Seeking to add to this already sizeable haul, agents then scaled the walls of another home and discovered ten more bags hidden in the backyard. This time, however, they were met by incensed homeowner Yu Guangbo, who charged at the intruders with a pitchfork and seriously injured an officer when he tried to seize a handgun. His resistance was fierce but, ultimately, futile. Outnumbered, Yu was quickly subdued, beaten, and bound. Left alone in the village temple, he untied himself the next day before reporting his harsh treatment to a local court and inaugurating a lawsuit that would last almost a decade.

What is the relationship between Nazism and natural law—the notion of universal standards, which arise from either God, revelation, nature, rationality, or morality, and which human-made statutes cannot break? In 1946, in the wake of World War II, Gustav Radbruch, one of Germany's most respected Social Democrats and legal philosophers, published his influential article, “Statutory Injustice and Suprastatutory Law,” which grappled with a pressing issue of postwar justice. Should courts deem judges criminally responsible for having earlier convicted defendants, and often sentenced them to death, based on denunciations by family, neighbors, or rivals, denunciations that the Nazi regime had encouraged but that a fair-minded government must condemn? As a matter of jurisprudence, Radbruch set forth his famous formula, which declared that judges must adhere to positive or statutory law, except in rare circumstances in which such law violated fundamental principles of justice. In his words, “[P]ositive law, secured through legislation and power, prevails, even if it is substantively unjust and inexpedient, unless the tension between positive law and justice reaches such an intolerable level that the law as ‘false law’ must yield to justice.” As a matter of history, Radbruch excused Nazi-era judges who had missed his jurisprudential point, because they had succumbed to the legal theory of positivism that had long permeated German legal thinking. “Positivism,” Radbruch wrote, “with its belief that ‘law is law’ rendered the German judiciary defenseless against arbitrary and criminal laws.”

The criminal justice system of eighteenth- and nineteenth-century England has been likened to a corridor of connected rooms or stage sets. At each stage in the judicial process—from detection and apprehension through to trial, sentencing, and punishment—decisions were made that might remove the accused from the system entirely, or propel that person further along the process into a number of possible outcomes. That decision making (including the identity of the decision makers and the criteria upon which their decisions were based) has been the subject of much historical study. Less attention has been given to the individual experiences—the singular journeys—of the accused through this labyrinthine process. This is in large part because of the inherent evidential and methodological difficulties of reconstructing judicial pathways and the wider criminal lives of offenders. As Tim Hitchcock and Robert Shoemaker note, the archives of criminal justice were created to manage the bureaucracy of prosecution and punishment, not to reveal the criminal's navigation of that system. Tracing an individual offender's journey through the judicial process (and that person's life beyond) therefore entails piecing together fragments spread almost randomly across hundreds of thousands of pages.

It is well known that “formal” judicial independence—appointment on good behavior rather than at pleasure—was established in Britain with the 1701 Act of Settlement, and, like many other aspects of the English constitution, not exported to the colonies of either the First or the Second Empire. Its absence formed one of the allegations against the crown in the American Declaration of Independence, and the Constitution of the New Republic accordingly included a federal judicial independence provision. British imperial policy in North America after the Revolution regarding judges continued as before, so that formal judicial independence was not established until 1834, and then only in Upper Canada (now Ontario). In the other three principal British North American colonies this was later still. What is now Quebec (Lower Canada) received good behavior appointments in 1843, and Nova Scotia in 1848. In the other colonies that joined the Canadian Confederation in 1867 (New Brunswick) or within a few years afterwards (British Columbia, Manitoba, and Prince Edward Island), good behavior appointments were introduced for the first time only when the colony joined Confederation.

Colonial regimes tended to change existing legislation and judicial structures, and to introduce new legal systems. When the previous legal system was partly upheld, and especially when a number of legal systems were already in effect, a complex and plural system would emerge, often with contradictory principles and normative assumptions. As a result, the colonial government faced inevitable dilemmas regarding the priorities it should grant to the different legal systems, and the means it should use to mediate conflicts among the different perspectives. Much has been written over the last few decades concerning the interrelation of colonial expansion and the transformation of law. The colonial government emphasized the necessity of changing existing legal systems, often portrayed as backward and unsuitable for the functioning of an empire and the global relations embedded in it. New colonial legislation was intended to achieve greater efficiency and the unification of colonial rule and to advance the “civilizing mission” by negating elements of existing traditions and introducing what the colonial rulers considered to be higher levels of morality. However, such changes ran the risk of being perceived as excessive intervention in the subordinated societies, and, therefore, might undermine the legitimacy of the colonial government.