Southern Slavery and the Law, 1619-1860

Thomas D. Morris.

Published February 1999. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4817-3.

This volume is the first comprehensive history of the evolving relationship between American slavery and the law from colonial times to the Civil War. As Thomas Morris clearly shows, racial slavery came to the English colonies as an institution without strict legal definitions or guidelines. Specifically, he demonstrates that there was no coherent body of law that dealt solely with slaves. Instead, more general legal rules concerning inheritance, mortgages, and transfers of property coexisted with laws pertaining only to slaves. According to Morris, southern lawmakers and judges struggled to reconcile a social order based on slavery with existing English common law (or, in Louisiana, with continental civil law.) Because much was left to local interpretation, laws varied between and even within states. In addition, legal doctrine often differed from local practice. And, as Morris reveals, in the decades leading up to the Civil War, tensions mounted between the legal culture of racial slavery and the competing demands of capitalism and evangelical Christianity.

Endorsements

“Supports and takes exception to many of the traditional views regarding Southern slavery. By overlaying American slavery with Southern law, Morris provides us with valuable insight and analysis. This book will long be considered a classic for understanding Southern slavery and the social system in which it existed.”
– Our State

“This fine book is now the standard work concerning the legal history of slavery in the United States.”
– Journal of Southern History

“The fullest and most probing explication to date of the policies and practices of the ‘laws’ of slavery.”
– Historian

“A valuable contribution to the historiography of southern law and to the historiography of the institution of slavery.”
– Journal of the Early Republic

“Brimming with knowledge and insight about a horrific aspect of our legal culture that continues to affect us.”
– Washington Post Book World

“Morris’s comprehensive investigation ranges from 17th-century Chesapeake to late antebellum Texas in considering sources of slave law, the role of race in its development, and relationships among slavery, capitalism, and the law. . . . Historians of slavery will find perceptive observations on violence by and against slaves, manumission, hiring out, and flight.”
– Choice

Awards
1997 Frank L. and Harriet C. Owsley Award, Southern Historical Association, 1996 Book Award, Society for Historians of the Early American Republic

Impeachment: The Constitutional Problems

Raoul Berger.

Published 1999. Order online through The Harvard University Press. ISBN: 9780674444782.

The little understood yet volcanic power of impeachment lodged in the Congress is dissected through history by the nation’s leading legal scholar on the subject. Berger offers authoritative insight into “high crimes and misdemeanors.” He sheds new light on whether impeachment is limited to indictable crimes, on whether there is jurisdiction to impeach for misconduct outside of office, and on whether impeachment must precede indictment. In an addition to the book, Berger finds firm footing in contesting the views of one-time Judge Robert Bork and President Nixon’s lawyer, James St. Clair.

Endorsements

“Originally published in 1974 at the time of the Nixon crisis, this erudite book by a legal scholar offers authoritative insight into all aspects of impeachment.”
— Washington Post Book Review

“An admirable and powerful work…valuable and illuminating.”
— Arthur M. Schlesinger, Jr.

The Republic According to John Marshall Harlan

Linda Przybyszewski.

Published September 1999. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4789-3.

Supreme Court Justice John Marshall Harlan (1833-1911) is best known for condemning racial segregation in his dissent from Plessy v. Ferguson in 1896, when he declared, “Our Constitution is color-blind.” But in other judicial decisions–as well as in some areas of his life–Harlan’s actions directly contradicted the essence of his famous statement. Similarly, Harlan was called the people’s judge for favoring income tax and antitrust laws, yet he also upheld doctrines that benefited large corporations.

Examining these and other puzzles in Harlan’s judicial career, Linda Przybyszewski draws on a rich array of previously neglected sources–including the verbatim transcripts of his 1897-98 lectures on constitutional law, his wife’s 1915 memoirs, and a compilation of opinions, drawn up by Harlan himself, that he wanted republished. Her thoughtful examination demonstrates how Harlan inherited the traditions of paternalism, nationalism, and religious faith; how he reshaped these traditions in light of his experiences as a lawyer, political candidate, and judge; and how he justified the vision of the law he wrote.

An innovative combination of personal and judicial biography, this book makes an insightful contribution to American constitutional and intellectual history.

Endorsements

“Clearly a book . . . that all judicial scholars will have to take note of in the future.”
– Law and History Review

“An excellent description and analysis of the possible sources and meaning of John Marshall Harlan’s judicial decisions.”
– Journal of American History

“This fine book provides a balanced and judicious study of Harlan’s jurisprudence. Drawing on overlooked sources, Przybyszewski offers fresh insights into the norms that influences Harlan’s work as a judge. . . . This work should be of interest to a wide range of scholars.”
– American Historical Review

“The serious student of American history, or its government, can hardly fail to find this densely packed volume rewarding.”
– Rapport

“Przybyszewski skillfully exploits several hitherto overlooked primary documents and argues that in the context of Harlan’s life experiences and ideology, his juridical writings are less consistent and more of a ‘mixed record’ than commonly thought. . . . An excellent contribution to a discourse she invites others to join.”
– Choice

“A fine intellectual biography of an important figure in American Law.”
– Law and Politics Book Review

Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South

Peter W. Bardaglio.

Published March 1998. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4712-1.

In Reconstructing the Household, Peter Bardaglio examines the connections between race, gender, sexuality, and the law in the nineteenth-century South. He focuses on miscegenation, rape, incest, child custody, and adoption laws to show how southerners struggled with the conflicts and stresses that surfaced within their own households and in the larger society during the Civil War era. Based on literary as well as legal sources, Bardaglio’s analysis reveals how legal contests involving African Americans, women, children, and the poor led to a rethinking of families, sexuality, and the social order. Before the Civil War, a distinctive variation of republicanism, based primarily on hierarchy and dependence, characterized southern domestic relations. This organic ideal of the household and its power structure differed significantly from domestic law in the North, which tended to emphasize individual rights and contractual obligations. The defeat of the Confederacy, emancipation, and economic change transformed family law and the governance of sexuality in the South and allowed an unprecedented intrusion of the state into private life. But Bardaglio argues that despite these profound social changes, a preoccupation with traditional notions of gender and race continued to shape southern legal attitudes.

Endorsements

“Bardaglio has succeeded in writing a book that asks important questions, poses thoughtful answers, and raises a host of issues for future researchers to explore. This book will join a handful of others as indispensable to the study of southern regionalism and the legal history of the American family.”
– Journal of Interdisciplinary History

“Should establish a model for future studies of the southern household.”
– Southern Quarterly

“[A] readable and rewarding book.”
– Journal of American History

“An ambitious and provocative book. . . one that offers fresh ways of thinking about the South’s legal system and culture, the decision for secession, the larger implications of Reconstruction, the roots of southern Progressivism, and the enduring differences between the South and the North.”
– Choice

“[Bardaglio] has given coherence and heft to previously scattered facts and interpretations and produced a work that should be required reading among historians of the family, sexuality, and the South.”
– Journal of the History of Sexuality

“With its exceptional command of the primary sources and extraordinary facility with the relevant secondary literature, Peter W. Bardaglio’s Reconstructing the Household is a signal contribution to legal history, the history of the family, and the study of southern race relations.”
– Journal of Social History

Awards
1996 James A. Rawley Prize, Organization of American Historians

The Farmer’s Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865-1945

Victoria Saker Woeste.

Published September 1998. The University of North Carolina Press. ISBN: 978-0-8078-4731-2.

Americans have always regarded farming as a special calling, one imbued with the Jeffersonian values of individualism and self- sufficiency. As Victoria Saker Woeste demonstrates, farming’s cultural image continued to shape Americans’ expectations of rural society long after industrialization radically transformed the business of agriculture. Even as farmers enthusiastically embraced cooperative marketing to create unprecedented industry-wide monopolies and control prices, they claimed they were simply preserving their traditional place in society. In fact, the new legal form of cooperation far outpaced judicial and legislative developments at both the state and federal levels, resulting in a legal and political struggle to redefine the place of agriculture in the industrial market.

Woeste shows that farmers were adept at both borrowing such legal forms as the corporate trust for their own purposes and obtaining legislative recognition of the new cooperative style. In the process, however, the first rule of capitalism–every person for him- or herself–trumped the traditional principle of cooperation. After 1922, state and federal law wholly endorsed cooperation’s new form. Indeed, says Woeste, because of its corporate roots, this model of cooperation fit so neatly with the regulatory paradigms of the first half of the twentieth century that it became an essential policy of the modern administrative state.

Awards 
2000 J. Willard Hurst Prize, Law & Society Association, A 1999 Choice Outstanding Academic Book

Law, Land, and Family: Aristocratic Inheritance in England, 1300 to 1800

Eileen Spring.

Published February 1997. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4642-1.

Eileen Spring presents a fresh interpretation of the history of inheritance among the English gentry and aristocracy. In a work that recasts both the history of real property law and the history of the family, she finds that one of the principal and determinative features of upper-class real property inheritance was the exclusion of females. This exclusion was accomplished by a series of legal devices designed to nullify the common-law rules of inheritance under which–had they prevailed–40 percent of English land would have been inherited or held by women. Current ideas of family development portray female inheritance as increasing in the seventeenth and eighteenth centuries, but Spring argues that this is a misperception, resulting from an incomplete consideration of the common-law rules. Female rights actually declined, reaching their nadir in the eighteenth century. Spring shows that there was a centuries-long conflict between male and female heirs, a conflict that has not been adequately recognized until now.

Endorsements

“[A] significant and highly original study.”
– Choice

“[A] lively and combative book. . . . It will be quite impossible for social or legal historians in the future to ignore the arguments presented here; the subject will never be quite the same again, and that is a real achievement.”
– Times Literary Supplement

“Eileen Spring has brought a fresh vision to the history of land law. . . . This is the best kind of feminist history. . . . A highly original and provocative book which overturns a great deal of accepted wisdom, with implications for legal, family, and women’s history.”
– Continuity and Change

“This is an admirable study, lucidly and economically argued, which makes its points about the inequitable treatment of heiresses-at-law and widows clearly and forcefully. . . . It deserves to be read not only by specialists in the development of the law of property, but by all those interested in the propertied élite of late-medieval and early-modern England.”
– Cambridge Law Journal

“Eileen Spring has written a fine and provocative book that asks us to reexamine many of the accepted views of the development of English land law. . . . Spring accomplishes an essential goal in writing legal history, she makes a highly technical and complex topic accessible to a wide audience and she does so with a timely twist.”
– Law and History Review

“An intelligent and engaging book that is a major contribution to both the history of law and the history of women. Ingeniously original, Spring’s work is sure to generate a great deal of rethinking on the part of those interested in the social history of land law.”
– Morris S. Arnold, United States Court of Appeals

Awards 
A 1995 Choice Outstanding Academic Book

Heart versus Head: Judge-Made Law in Nineteenth-Century America

Peter Karsten.

Published September 1997. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2340-8.

Challenging traditional accounts of the development of American private law, Peter Karsten offers an important new perspective on the making of the rules of common law and equity in nineteenth-century courts. The central story of that era, he finds, was a struggle between a jurisprudence of the head, which adhered strongly to English precedent, and a jurisprudence of the heart, a humane concern for the rights of parties rendered weak by inequitable rules and a willingness to create exceptions or altogether new rules on their behalf. Karsten first documents the tendency of jurists, particularly those in the Northeast, to resist arguments to alter rules of property, contract, and tort law. He then contrasts this tendency with a number of judicial innovations–among them the sanctioning of ‘deep pocket’ jury awards and the creation of the attractive-nuisance rule–designed to protect society’s weaker members. In tracing the emergence of a pro-plaintiff, humanitarian jurisprudence of the heart, Karsten necessarily addresses the shortcomings of the reigning, economic-oriented paradigm regarding judicial rulemaking in nineteenth-century America.

Endorsements

“As writing on legal doctrine goes, this is among the best. Karsten’s direct style makes for an intriguing journey through American courtrooms.”
– Journal of the Early Republic

“In Heart versus Head, Peter Karsten breathes some life into a subject that might be thought long dead. . . . Heart versus Head presents a picture of nineteenth-century law dramatically different from the one developed in the leading historical surveys.”
– Journal of American History

“A study on nineteenth-century law concerning property, torts, and contracts that is sure to stir debate for years to come. . . . A well-researched and thoroughly documented monograph that will be of great value to the student of legal history.”
– History: Reviews of New Books

“With prodigious research and meticulous attention to detail, Peter Karsten has created a powerful and convincing alternative to the reigning interpretation of the history of nineteenth-century American law by joining doctrinal analysis with intellectual and cultural history. He has opened new paths whose pursuit is likely to set the agenda for the field for decades to come.”
– William P. LaPiana, New York Law School

“In this exhaustively researched and brilliantly written monograph, Peter Karsten has moved ‘the jurisprudence of the heart’ to the center of nineteenth-century judicial thought. In the process, he has reminded us of the importance of midwestern, southern, and far western legal precedents. This is must reading for every student of legal history.”
– Peter C. Hoffer, University of Georgia

The People’s Welfare: Law and Regulation in Nineteenth-Century America

William J. Novak.

Published December 1996. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4611-7.

Much of today’s political rhetoric decries the welfare state and our maze of government regulations. Critics hark back to a time before the state intervened so directly in citizens’ lives. In The People’s Welfare, William Novak refutes this vision of a stateless past by documenting America’s long history of government regulation in the areas of public safety, political economy, public property, morality, and public health. Challenging the myth of American individualism, Novak recovers a distinctive nineteenth-century commitment to shared obligations and public duties in a well-regulated society. Novak explores the by-laws, ordinances, statutes, and common law restrictions that regulated almost every aspect of America’s society and economy, including fire regulations, inspection and licensing rules, fair marketplace laws, the moral policing of prostitution and drunkenness, and health and sanitary codes. Based on a reading of more than one thousand court cases in addition to the leading legal and political texts of the nineteenth century, The People’s Welfare demonstrates the deep roots of regulation in America and offers a startling reinterpretation of the history of American governance.

Endorsements

“Sophisticated and provocative, well-written, well-argued, and exhaustively researched . . . an important, useful, and controversial attempt to reorient our understanding of nineteenth-century American legal history.”
– Law and Legal History

“Offers a vigorous and effective challenge to two related bodies of literature: one that conceives of the law in the early Republic as a mere instrument in the hands of entrepreneur-favoring jurists and legislators, and another that sees government more generally yielding its residual colonial and medieval regulatory functions to the dictates of the market economy.”
– American Historical Review

“Well written and thoroughly researched. . . . This is a comprehensive and well documented book, showing the author’s competence in a number of disciplines, including economics, social history, and law.”
– Business History Review

“An extraordinarily important historical work on American government regulation in the 19th century. . . . [A] landmark treatise.”
– Library Journal

“[A] provocative, prodigiously researched, and beautifully written book.”
– Reviews in American History

“[An] interesting and at times provocative book.”
– Journal of Economic History

Awards 
1997 Littleton-Griswold Prize in American Law and Society, American Historical Association

Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920

Richard F. Hamm.

Published February 1995. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4493-9.

Richard Hamm examines prohibitionists’ struggle for reform from the late nineteenth century to their great victory in securing passage of the Eighteenth Amendment. Because the prohibition movement was a quintessential reform effort, Hamm uses it as a case study to advance a general theory about the interaction between reformers and the state during the Gilded Age and Progressive Era. Most scholarship on prohibition focuses on its social context, but Hamm explores how the regulation of commerce and the federal tax structure molded the drys’ crusade. Federalism gave the drys a restricted setting–individual states–as a proving ground for their proposals. But federal policies precipitated a series of crises in the states that the drys strove to overcome. According to Hamm, interaction with the federal government system helped to reshape prohibitionists’ legal culture–that is, their ideas about what law was and how it could be used.

Endorsements

“Well researched and lucidly written, Hamm’s study is also notable for deftly situating temperance and prohibition in relation to other progressive era reforms.”
– Choice

“Breadth of conception and depth of analysis make Shaping the Eighteenth Amendment a valuable addition to the literature.”
– Journal of American History

“In this well-researched and crisply written volume, Richard F. Hamm provides a valuable corrective to many conventional but faulty assumptions about the Prohibition movement, its ideology, and its legal strategies in the four decades preceding passage of the Eighteenth Amendment. . . . Hamm’s study provides a detailed and sophisticated new look at the men and women involved in shaping the Eighteenth Amendment.”
– Journal of Southern History

“Hamm has succeeded admirably in presenting the constitutional and legal history of prohibition and in demonstrating the way that the prohibition movement and the polity interacted to alter both. . . . His book should be of interest to constitutional and legal scholars, those interested in the emergence of the twentieth-century state, and specialists in the politics of the era.”
– American Historical Review

“In coping with one of the most controversial reform efforts of the progressive era, Richard Hamm in this thoughtful and provocative book places the prohibition crusade within the nation’s legal and political structure.”
– American Journal of Legal History

“A rich study of how one group of social reformers used the law.”
– Journal of Church and State

Award
1996 Henry Adams Prize, Society for History in the Federal Government

American Legal Realism and Empirical Social Science

John Henry Schlegel.

Published 1995. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5753-3.

John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. In this book, he explores individual Realist scholars’ efforts to challenge the received notion that the study of law was primarily a matter of learning rules and how to manipulate them. He argues that empirical research was integral to Legal Realism, and he explores why this kind of research did not, finally, become a part of American law school curricula. Schlegel reviews the work of several prominent Realists but concentrates on the writings of Walter Wheeler Cook, Underhill Moore, and Charles E. Clark. He reveals how their interest in empirical research was a product of their personal and professional circumstances and demonstrates the influence of John Dewey’s ideas on the expression of that interest. According to Schlegel, competing understandings of the role of empirical inquiry contributed to the slow decline of this kind of research by professors of law.

Endorsements

“A masterful study. . . . Every law and social science researcher should read the book. . . . It is a brilliant book, and a wonderful ‘read.’”
– Law and Politics Book Review

“American Legal Realism and Empirical Social Science is a refreshing and insightful analysis of the origins, flowering, and demise of ‘legal realism.’ . . . His book succeeds admirably not only in expanding our understanding of legal realism but also in illuminating both the cultural evolution of the profession of law teaching and the course of academic legal thinking in the twentieth-century United States. . . . Schlegel has written a thoroughly researched, perceptive, and provocative book that adds immeasurably to our understanding of legal realism and the culture of American law teaching. It should become a foundation stone for subsequent discussions of twentieth-century American legal thought and education.”
– Journal of American History

“Makes a valuable contribution to our understanding of American legal realism by recasting the ‘ideas in context’ approach to intellectual history. . . . Schlegel’s study of these professors’ and these institutions’ engagement with social science is comprehensive and penetrating, providing a wealth of factual information and solid analysis.”
– American Historical Review

“Exceptionally thorough research, a riveting narrative style, some humor along the way, and a host of stimulating asides and suggestions for future work.”
– G. Edward White, University of Virginia

“Schlegel is the first historian of Legal Realism–the most influential movement of twentieth-century American legal thought–to recognize that the Realists were neither primarily legal philosophers nor theorists of the judicial role, but rather scholars who hoped to enlist social science in the cause of legal and social reform. Schlegel’s story is basically a tragic one, of noble ambitions brought to shipwreck on opposition and indifference; but there are many comic moments too, and the book is great fun to read. At last we have the story of Realism as the Realists themselves would have written it–the story of who exactly the Realists were and the work they actually did.”
– Robert W. Gordon, Stanford Law School

Laws Harsh As Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law

Lucy E. Salyer.

Published November 1995. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4530-1.

Focusing primarily on the exclusion of the Chinese, Lucy Salyer analyzes the popular and legal debates surrounding immigration law and its enforcement during the height of nativist sentiment in the early twentieth century. She argues that the struggles between Chinese immigrants, U.S. government officials, and the lower federal courts that took place around the turn of the century established fundamental principles that continue to dominate immigration law today and make it unique among branches of American law. By establishing the centrality of the Chinese to immigration policy, Salyer also integrates the history of Asian immigrants on the West Coast with that of European immigrants in the East.

Salyer demonstrates that Chinese immigrants and Chinese Americans mounted sophisticated and often-successful legal challenges to the enforcement of exclusionary immigration policies. Ironically, their persistent litigation contributed to the development of legal doctrines that gave the Bureau of Immigration increasing power to counteract resistance. Indeed, by 1924, immigration law had begun to diverge from constitutional norms, and the Bureau of Immigration had emerged as an exceptionally powerful organization, free from many of the constraints imposed upon other government agencies.

Endorsements

“A tremendous contribution to our understanding of how legal alien residents gradually came to lose their constitutional rights in the United States.”
– Western Legal History

“Brilliant, well-researched and well-written.”
– Law and History Review

“Salyer’s fresh approach to the study of immigration law contributes a critical and vitalizing measure of complexity to a dimension of immigration history.”
– American Journal of Legal History

“An elegantly written, well conceived book that makes an important contribution to the field.”
– Pacific Historical Review

“This excellent book, carefully and thoroughly researched and engaginglywritten, represents some of the finest recent scholarship in the history of American law.”
– American Historical Review

“This is an important study for American historians of the late nineteenth and twentieth centuries, especially those who focus upon the American West, immigration, nativism, ethnicity, and Asian Americans.”
– Western Historical Quarterly

Awards 
1995 Theodore Saloutos Memorial Book Award, Immigration History Society

Protecting the Best Men: An Interpretive History of the Law of Libel

Norman L. Rosenberg.

Published September 1990. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4290-4.

From the trial of John Peter Zenger in the eighteenth century to the recent libel cases of William Westmoreland and Ariel Sharon, political defamation cases have attracted considerable attention. As Norman Rosenberg shows, cases like these raise fundamental questions about how much criticism of public leaders a supposedly open, liberal society will permit.

Drawing upon a wide variety of historical sources, Protecting the Best Men argues that there exists no natural, evolutionary history of free speech. It also challenges interpretations that rest upon discovering an “original understanding” about the First Amendment. Instead, this interpretive history of the law of libel highlights the complexity and historically rooted nature of legal concepts and legal consciousness in the United States.

Endorsements

“Rosenberg has written a fine book that demonstrates that libel law, like other supposedly timeless and apparently fundamental legal doctrines, depends on historical forces and follows no clear line of development.
– Law & Society Review

Women and the Law of Property in Early America

Marylynn Salmon.

Published February 1989. Order online through The University of North Carolina Press. ISBN: 78-0-8078-4244-7.

In this first comprehensive study of women’s property rights in early America, Marylynn Salmon discusses the effect of formal rules of law on women’s lives. By focusing on such areas such as conveyancing, contracts, divorce, separate estates, and widows’ provisions, Salmon presents a full picture of women’s legal rights from 1750 to 1830.

Salmon shows that the law assumes women would remain dependent and subservient after marriage. She documents the legal rights of women prior to the Revolution and traces a gradual but steady extension of the ability of wives to own and control property during the decades following the Revolution. The forces of change in colonial and early national law were various, but Salmon believes ideological considerations were just as important as economic ones.

Women did not all fare equally under the law. In this illuminating survey of the jurisdictions of Connecticut, Massachusetts, New York, Pennsylvania, Maryland, Virginia, and South Carolina, Salmon shows regional variations in the law that affected women’s autonomous control over property. She demonstrates the importance of understanding the effects of formal law on women’ s lives in order to analyze the wider social context of women’s experience.

Endorsements

“An excellent book that portrays in great detail the variations, both large and subtle, that existed in the relationship of women to the law of property in seven colonies. . . . A richly textured portrait not merely of the specific subjects under consideration but indeed of the process through which tradition and innovation interacted in the formation of American legal rules in the colonial period. . . . Genuinely definitive in that it is clearly the starting point for all subsequent investigations of this subject.”
– The William and Mary Quarterly

“Provides a clear and systematic empirical survey of the evolution of women’s property rights; all students of women’s history, legal history, and early American history should read it.”
– Southern Historian

The Transformation of Criminal Justice: Philadelphia, 1800-1880

Allen Steinberg.

Published November 1989. Order online through The University of North Carolina Press. ISBN: 9-780-8078-1844-2.

Allen Steinberg brings to life the court-centered criminal justice system of nineteenth-century Philadelphia, chronicles its eclipse, and contrasts it to the system — dominated by the police and public prosecutor — that replaced it. He offers a major reinterpretation of criminal justice in nineteenth-century America by examining this transformation from private to state prosecution and analyzing the discontinuity between the two systems.

Steinberg first establishes why the courts were the sources of law enforcement, authority, and criminal justice before the advent of the police. He shows how the city’s system of private prosecution worked, adapted to massive social change, and came to dominate the culture of criminal justice even during the first decades following the introduction of the police. He then considers the dilemmas that prompted reform, beginning with the establishment of a professional police force and culminating in the restructuring of primary justice.

Making extensive use of court dockets, state and municipal government publications, public speeches, personal memoirs, newspapers, and other contemporary records, Steinberg explains the intimate connections between private prosecution, the everyday lives of ordinary people, and the conduct of urban politics. He ties the history of Philadelphia’s criminal courts closely to related developments in the city’s social and political evolution, making a contribution not only to the study of criminal justice but also to the larger literature on urban, social, and legal history.

Endorsements

“An important work. Joining together the history of the courts, prosecution patterns, city politics, and social developments, it convincingly demonstrates that the transformation of criminal justice was central to the development of city life itself. And that we are still haunted by its legacy.”
– Journal of the Early Republic

Governing the Hearth: Law and the Family in Nineteenth-Century America

Michael Grossberg.

Published August 1988. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4225-6.

Presenting a new framework for understanding the complex but vital relationship between legal history and the family, Michael Grossberg analyzes the formation of legal policies on such issues as common law marriage, adoption, and rights for illegitimate children. He shows how legal changes diminished male authority, increased women’s and children’s rights, and fixed more clearly the state’s responsibilities in family affairs. Grossberg further illustrates why many basic principles of this distinctive and powerful new body of law–antiabortion and maternal biases in child custody–remained in effect well into the twentieth century.

Award 
1986 Littleton-Griswold Prize in American Law and Society, American Historical Association

Custom, Kinship, and Gifts to Saints: The Laudatio Parentum in Western France, 1050-1150

Stephen D. White.

Published 1988 (Out of Print). Order online through The University of North Carolina Press. ISBN: 978-0-8078-6640-5.

White combines an intensive study of medieval law with insights from anthropology, religion, and social history to create a picture of French society in the Middle Ages which is impressive in its breadth and illuminating in its detail. By examining the practice whereby gifts of land were approved by the giver’s relatives, he suggests novel ways of looking at early medieval law, kinship, land tenure, and gift exchange. White shows that laudatio parentum can be properly analyzed only within a combined social, legal, and religious context.

Transfers of Property in Eleventh-Century Norman Law

Emily Zack Tabuteau.

Published 1988. Order online through The University of North Carolina Press. ISBN: 978-0-8078-6628-3.

Perhaps the greatest problem of medieval property law was that third parties and even grantors themselves often challenged transactions, making the lives of grantees miserable with lawsuits or forcible seizures. By the eleventh century, many devices for attempting to forestall or defeat claims were in use and others were in the process of being invented. Tabuteau considers the nature and efficacy of these devices as well as the degree to which the consent of interested parties was necessary or advisable.

Law School: Legal Education in America from the 1850s to the 1980s

Robert Stevens.

Published February 1987. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4175-4.

In this first general history of legal education, Stevens traces the development of law schools, the legal profession, and legal thought, relating their evolution to intellectual, political, and social trends. He describes how the establishment gained power over education after 1920 and how, in the past two decades, both students and the practicing profession have questioned this authority. He also examines the implications of the “legal revolution” and new opportunities for women and minorities.

Supreme Court Justice Joseph Story: Statesman of the Old Republic

R. Kent Newmyer.

Published August 1986. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4164-8.

The primary founder and guiding spirit of the Harvard Law School and the most prolific publicist of the nineteenth century, Story served as a member of the U.S. Supreme Court from 1811 to 1845. His attitudes and goals as lawyer, politician, judge, and legal educator were founded on the republican values generated by the American Revolution. Story’s greatest objective was to fashion a national jurisprudence that would carry the American people into the modern age without losing those values.

Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870

Hendrik Hartog.

Published October 1983, The University of North Carolina Press. ISBN: 9-780-8078-1562-5.

Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725-1825

William E. Nelson.

Published 1982. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9736-2.

Nelson identifies three principal institutions involved in conflict resolution: the twon meeting, the church congregation, and the courts of law. He subsequently determines the type of cases over which each institution had jurisdiction and studies the procedures by which each functioned. He examines the tendency after 1800 to bring disputes to the court and sees this as a response to the introduction of new, nontraditional values not held by local institutions.

Law and Society in Puritan Massachusetts: Essex County, 1629-1692

David Thomas Konig.

Published January 1981. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4081-8.

Distinguished by the critical value it assigns to law in Puritan society, this study describes precisely how the Massachusetts legal system differed from England’s and how equity and an adapted common law became so useful to ordinary individuals. The author discovers that law gradually replaced religion and communalism as the source of social stability, and he gives a new interpretation to the witchcraft prosecutions of 1692.

In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution

John Phillip Reid.

Published April 1981, The University of North Carolina Press. ISBN: 9-780-8078-1449-9.

On the Laws and Customs of England : Essays in Honor of Samuel E. Thorne

Morris S. Arnold, Thomas A. Green, Sally A. Scully and Stephen D. White.

Published 1981 (out of print). Order online through The University of North Carolina Press. ISBN: 978-0-8078-7814-9.

Investigating a wide range of problems in the development of English law, this collection of original essays honors the contributions of Samuel D. Thorne to the study of English legal history from the eleventh to the seventeenth century. The essays combine close study of legal texts and doctrines in their own setting with broader analysis of the interaction of legal and social change. Although each essay has its own historiographical context, a substantial unity is achieved.

An Imperfect Union : Slavery, Federalism, and Comity

Paul Finkelman.

Published 1981 (Out of Print), The University of North Carolina Press. ISBN: 080-781-4385. Reprint of the first and only edition.

Finkelman describes the judicial turmoil that ensued when slaves were taken into free states, and the resultant issues of the conflict of laws, comity and cooperation between the states, their Constitutional obligations, and the threat of the nationalization of slavery.

The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910

Lawrence M. Friedman, Robert V. Percival.

Published 1981. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9748-5.

Focusing on a single county at a time when the population grew from 24,000 to 246,000, the authors combine statistical analysis of documentary sources, contemporary newspaper accounts, and exploration in criminal case files to give a detailed reconstruction of the operations of the county’s entire criminal justice system. By tracing the process from arrest to trial, sentencing, and punishment, this study will have a profound effect on our perception of American criminal justice.

Awards
1982 James Willard Hurst Prize in American Legal History, Law and Society Association, 1984 Robert G. Athearn Award, Western History Association

Faithful Magistrates and Republican Lawyers

A. G. Roeber.

Published 1981. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9766-9.

Until the mid-1700s, law was not thought of as a science or profession. Most Virginians adhered to the English country tradition that considered law to be a local and personal affair. The growth of cities and business, however, guaranteed that disputes would spill over county boundaries. As law proliferated and became more complex, it encouraged the growth of a legal profession composed of men who shared specialized knowledge of law and the courts.

Endorsements

“Provides new and valuable evidence of the degree to which the legal profession had its way in remodeling the judicial system of Jefferson’s Virginia.”
– North Carolina Historical Review

Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878

Michael Stephen Hindus.

Published July 1980. Order online through The University of North Carolina Press. ISBN: 9-780-8078-1417-8.

This broad, comparative study examines the social, economic, and legal contexts of crime and authority in two vastly different states over a one hundred year period. Massachusetts–an urban, industrial, and heterogeneous northern state–chose the penitentiary in its attempt to minimize the role of informal and extralegal authority while South Carolina–a rural southern slave state–systematically reduced its formal legal institutions, frequently relying on vigilantism.

The Rule of Law: Albert Venn Dicey, Victorian Jurist

Richard A. Cosgrove.

Published 1980 (Out of Print). Order online through The University of North Carolina Press. ISBN: 0-8078-1410-5.

So commonplace has the term rule of law become that few recognize its source as Dicey’s Introduction to the Study of the Law of the Constitution. Cosgrove examines the life and career of Dicey, the most influential constitutional authority of late Victorian and Edwardian Britain, showing how his critical and intellectual powers were accompanied by a simplicity of character and wit. Dicey’s contribution to the history of law is described as is his place in Victorian society.

Underdevelopment and the Development of Law: Corporations and Corporation Law in Nineteenth-Century Colombia

Robert C. Means.

Published October 1980, The University of North Carolina Press. ISBN: 9-780-8078-1423-9.

Sir Edward Coke and ‘The Grievances of the Commonwealth,’ 1621-1628

Stephen D. White.

Published 1979. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9807-9.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Law and Politics: The House of Lords as a Judicial Body, 1800-1976

Robert Stevens.

Published 1978, The Harvard University Press.

The Transformation of American Law, 1780-1860

Morton Horwitz.

Published 1977. Order online through The Harvard University Press. ISBN: 9-780-6749-0371-5.

In a remarkable book based on prodigious research, Morton J. Horwitz offers a sweeping overview of the emergence of a national (and modern) legal system from English and colonial antecedents. He treats the evolution of the common law as intellectual history and also demonstrates how the shifting views of private law became a dynamic element in the economic growth of the United States.

Horwitz’s subtle and sophisticated explanation of societal change begins with the common law, which was intended to provide justice for all. The great breakpoint came after 1790 when the law was slowly transformed to favor economic growth and development. The courts spurred economic competition instead of circumscribing it. This new instrumental law flourished as the legal profession and the mercantile elite forged a mutually beneficial alliance to gain wealth and power.

The evolving law of the early republic interacted with political philosophy, Horwitz shows. The doctrine of laissez-faire, long considered the cloak for competition, is here seen as a shield for the newly rich. By the 1840s the overarching reach of the doctrine prevented further distribution of wealth and protected entrenched classes by disallowing the courts very much power to intervene in economic life.

This searching interpretation, which connects law and the courts to the real world, will engage historians in a new debate. For to view the law as an engine of vast economic transformation is to challenge in a stunning way previous interpretations of the eras of revolution and reform.

Endorsements

“It is to be hoped that a wide audience will read it since the issues it raises are indispensable… Horwitz’s book is written with a passion.”
— The New York Review of Books

“He has read widely in many fields…[and] has gathered a rich harvest for any reader…a remarkable achievement.”
— The Yale Law Journal

“A thoughtful contribution to the continuing issue of whether and how much we are governed by our judges.”
— Library Journal

“One of the five most significant books ever published in the field of American legal history.”
— William E. Nelson, Yale University

American Lawyers in a Changing Society: 1776-1876

Maxwell H. Bloomfield.

Published 1976, The Harvard University Press.

Law and Politics in Jefferson’s Louisiana

George F. Dargo.

Published 1975, The Harvard University Press.

The Development of Massachusetts Law, 1760-1830

William E. Nelson.

Prosecuting Crime in the Renaissance: England, Germany, France

John H. Langbein.

Published 1974. Order online through The Harvard University Press. ISBN: 9780674184251.

Executive Privilege: A Constitutional Myth

Raoul Berger.

Published 1974. Order online through The Harvard University Press. ISBN: 9-780-6742-7425-9.

The Autobiographical Notes of Charles Evans Hughes

David J. Danelski, Joseph S. Tulchin.

Published 1973. Order online through The Harvard University Press. ISBN: 978-0-6740-5325-0.

Charles Evans Hughes (1862–1948) was lawyer, governor of New York, Supreme Court Justice, presidential candidate in 1916, Secretary of State in the Harding and Coolidge administrations, a member of the World Court, and Chief Justice of the United States from 1930 until his retirement in 1941. To some, Hughes appeared larger than life. Robert H. Jackson once said of him, “[He] looks like God and talks like God.” But to those who knew him well, he was quite human, extraordinarily gifted, but human nonetheless. His Autobiographical Notes portray him as no biography could and provide comment on almost a century of American history as seen by one who played a part in shaping its course.

Hughes’s notes reveal two sides of his personality—a serious side when he was at work, and a genial, sometimes humorous, side when he was relaxing or with friends and family. When he writes of unofficial life especially his boyhood, college years, and early years at the bar—he is raconteur telling his story with a certain amount of humor; when he writes of his official life he tends to be matter-of-fact. The early chapters describe the formative influence which shaped his character: his loving but intellectually demanding parents and deeply religious training; his unusual early education, which took place mostly at home and gave full scope to his precocity. Hughes’s accounts of college life in the 1870s at Madison (now Colgate) and Brown University and of his career as a young lawyer in the New York City of the 1880s and 1890s are valuable portraits of an era.

Brought up to a high sense of duty, Hughes, from the start of his career, felt bound to take worthy legal cases and it was his reputation for integrity and thoroughness that led to his selection as counsel in the gas and insurance investigations of 1905–1906. This was the turn of events that precipitated him into the public eye and, subsequently, into politics. The culmination of his career came in 1937 when he led the Supreme Court through a constitutional crisis and confronted Franklin Roosevelt in the Court packing battle. In the intervening thirty years, Hughes was a major figure in American political and legal circles. His Notes record his impressions of presidents, statesmen, and justices. His reflections on the diplomacy of the 1920s and on the causes leading up to the Second World War are of immense historical importance.

The editors have supplied an introduction to the Notes, commenting on Hughes’s personality and public image, his political style and rise to fame. They have remained unobtrusive throughout, intervening only to clarify references and provide necessary details. For the rest, they let Hughes speak for himself in the crisp and clear style that reveals his unusual intelligence and the retentive and analytical mind that distinguished his conduct of affairs.

Justice Felix Frankfurter wrote of Hughes: “I have known or know about most of the leading men of my time both here and in England enough to justify me in forming a judgment. There isn’t the slightest doubt that C.E.H. is among the few really sizable figures of my lifetime. He is three-dimensional and has impact.” Here, in these Notes, is this great man drawn in life-size proportions.

Frederic William Maitland: A Life

C.H.S. Fifoot.

Published 1971. Order online through The Harvard University Press. ISBN: 978-0-6743-1825-0.

Renowned as a great scholar, teacher, and legal historian, Frederic William Maitland (1850–1906) advanced the cause of legal history, opposing the idea that legal history was law and not history, yet believing in the advantage of legal training.

He was Downing Professor of Law at Cambridge, helped to found the Selden Society, and himself edited Henry de Bracton’s Notebook and four Year Books of Edward II. With Sir Frederick Pollock he wrote the brilliant work that is still a standard, The History of English Law before the Time of Edward I. He edited Memoranda de Parliamento, and wrote Domesday Book and Beyond, Township and Borough, and Roman Canon Law as well as many papers on legal history and law. His lectures on Equity, on The Forms of Action at Common Law, and on Constitutional History of England were published after his death.

C. H. S. Fifoot has written this biography of Maitland with care and devotion in a style that is lucid and eloquent. He traces the origin and development of Maitland’s works, using them to reveal the man himself and his qualities of mind and spirit. Mr. Fifoot places his subject in the context not only of his age, but also of his family and friends. He has drawn on Maitland’s letters as well as unpublished letters of his friends, private papers, manuscripts, and recollections, much of which would otherwise have perished. The many quotations of Maitland he has incorporated are delightful and revealing.