Vernacular Law: Writing and the Reinvention of Customary Law in Medieval France

Ada Maria Kuskowski, Cambridge University Press (October 2022)

Custom was fundamental to medieval legal practice. Whether in a property dispute or a trial for murder, the aggrieved and accused would go to lay court where cases were resolved according to custom. What custom meant, however, went through a radical shift in the medieval period. Between the twelfth and thirteenth centuries, custom went from being a largely oral and performed practice to one that was also conceptualized in writing. Based on French lawbooks known as coutumiers, Ada Maria Kuskowski traces the repercussions this transformation – in the form of custom from unwritten to written and in the language of law from elite Latin to common vernacular – had on the cultural world of law. Vernacular Law offers a new understanding of the formation of a new field of knowledge: authors combined ideas, experience and critical thought to write lawbooks that made disparate customs into the field known as customary law. (Click to purchase)

The Dreadful Word Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776

Kristin A. Olbertson. Cambridge University Press (March 2022).

This book, the first comprehensive study of criminal speech in eighteenth-century New England, traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness. Analyzing provincial statutes and hundreds of criminal prosecutions, Kristin A. Olbertson argues that colonists transformed their understanding of speech offenses, from fundamentally ungodly to primarily impolite. As white male gentility emerged as the pre-eminent model of authority, records of criminal prosecution and punishment show a distinct cadre of politely pious men defining themselves largely in contrast to the vulgar, the impious, and the unmanly. “Law,” as manifested in statutes as well as in local courts and communities, promoted and legitimized a particular, polite vision of the king’s peace and helped effectuate the British Empire. In this unique and fascinating work, Olbertson reveals how ordinary people interacted with and shaped legal institutions.

Imperial Incarceration Detention without Trial in the Making of British Colonial Africa

Michael Lobban. Cambridge University Press (August 2021)

For nineteenth-century Britons, the rule of law stood at the heart of their constitutional culture, and guaranteed the right not to be imprisoned without trial. At the same time, in an expanding empire, the authorities made frequent resort to detention without trial to remove political leaders who stood in the way of imperial expansion. Such conduct raised difficult questions about Britain’s commitment to the rule of law. Was it satisfied if the sovereign validated acts of naked power by legislative forms, or could imperial subjects claim the protection of Magna Carta and the common law tradition? In this pathbreaking book, Michael Lobban explores how these matters were debated from the liberal Cape, to the jurisdictional borderlands of West Africa, to the occupied territory of Egypt, and shows how and when the demands of power undermined the rule of law. This title is also available as Open Access on Cambridge Core.

Martha S. Jones on the Hard Histories at Hopkins Project

Professor Martha S. Jones, author of Birthright Citizens: A History of Race and Rights in Antebellum America, recently published a fascinating opinion piece in the Washington Post reflecting on her work researching the history of Johns Hopkins University and its ties to slavery. You can find the op-ed here and visit the Hard Histories at Hopkins website for more details on Professor Jones’s research and findings.

Felony and the Guilty Mind in Medieval England

Elizabeth Papp Kamali. Cambridge University Press (July 2019). Available via Cambridge and Amazon.

Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire

Sam Erman. Cambridge University Press (November 2018). Available via Cambridge and Amazon.

Coming Soon: Erman’s Almost Citizens

Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire is coming soon! Publication is expected in November-December 2018. To get up to speed on the project before it is published, you can watch the below video in which Professor Erman summarizes his book and the major arguments it makes. A transcription of the video follows.

The book is titled Almost Citizens and it’s the story of how in the early twentieth century formal empire became constitutional in the United States. It makes three arguments. The first argument is that individuals without formal legal training make a difference at law. Here, I enter into a part of the field that is concerned with individual agency and with claims-making. The second argument of the book is about the idea that law changes outside the courts. I argue that people in congress, federal bureaucrats, the President, even individual litigants and lawyers, change the meaning of the constitution over time. The third argument is that people’s thinking about race and gender could never be separated from their understandings about what the law was and what it should be. The idea is that the law does not just develop because of legal logics, but our own biases; how judges see the world more generally, and how others see the world, profoundly shapes what the law is and what it can become.

Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America

Michael A. Schoeppner. Cambridge University Press. January 2019. Available via Cambridge University Press and Amazon.

Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a ‘moral contagion’ of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship – one that guaranteed a number of rights against state regulation – they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by antebellum free people of color, by people afflicted with ‘moral contagion.’

The First Modern Risk: Workplace Accidents and the Origins of European Social States

Julia Moses. Cambridge University Press, June 2018. Available to purchase via Cambridge University Press and Amazon.

During the late nineteenth century, many countries across Europe adopted national legislation that required employers to compensate workers injured or killed in accidents at work. These laws suggested that the risk of accidents was inherent to work and not due to individual negligence. By focusing on Britain, Germany, and Italy during this time, Julia Moses demonstrates how these laws reflected a major transformation in thinking about the nature of individual responsibility and social risk. The First Modern Risk illuminates the implications of this conceptual revolution for the role of the state in managing problems of everyday life, transforming understandings about both the obligations and rights of individuals. Drawing on a wide array of disciplines including law, history, and politics, Moses offers a fascinating transnational view of a pivotal moment in the evolution of the welfare state.

Endorsements:

‘Based on detailed work in three countries and languages, this book looks broadly and comparatively at how governments dealt with workplace accidents in the nineteenth century, one of industrialization’s earliest dilemmas. With both empirical substance and theoretical sophistication, it also illuminates the more general problem of the contemporary state first undertaking what is now its foremost task, managing modernity’s ever-growing risks.’

–Peter Baldwin, University of California, Los Angeles

‘In this masterful and path breaking study, Moses identifies the genealogical origins of European social states in the neglected sphere of workplace accidents and the social policies that governments adopted to address what they came to recognize as the ‘first modern risk’. Weaving together a stunning array of research – from law and moral philosophy to state theory and citizenship studies – this book charts the shifting responsibility for the inevitable perils of industrial capitalism, from the personal agency of freedom of contract to state management of an increasingly social distribution of risk. This is a book as timely as it is profound. As neoliberalism’s unremitting assaults on today’s social states have given rise to brutalizing levels of inequality, nothing could be more urgent than our learning from Moses’ deep analysis of the social and political conditions that once created and sustained national commitments to egalitarian social rights.’

–Margaret Somers, University of Michigan

Devastation without Representation in Puerto Rico

In an opinion piece for the LA Times, published on the one year anniversary of Hurricane Maria, Professor Sam Erman writes of devastation without representation in Puerto Rico. You can read the piece here. Learn more about Erman’s work by viewing his video interviews and reading about his forthcoming book with the series, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press, October 2018).

Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia

Jessica K. Lowe. Cambridge University Press (January 2019). Available via Cambridge University Press and Amazon.

On July 4, 1791, the fifteenth anniversary of American Independence, John Crane, a descendant of prominent Virginian families, killed his neighbor’s harvest worker. Murder in the Shenandoah traces the story of this early murder case as it entangled powerful Virginians and addressed the question that everyone in the state was heatedly debating: what would it mean to have equality before the law – and a world where ‘law is king’? By retelling the story of the case, called Commonwealth v. Crane, through the eyes of its witnesses, families, fighters, victims, judges, and juries, Jessica K. Lowe reveals how revolutionary debates about justice gripped the new nation, transforming ideas about law, punishment, and popular government.

Endorsements:

Advance praise: “In Murder in the Shenandoah, Jessica K. Lowe deftly investigates a deadly brawl to illuminate the legal culture of the new nation’s most influential state, shortly after the American Revolution. Filled with plot twists, surprising revelations, colorful characters, and rich insights, this book will reward anyone interested in the roots of American criminal law.” –Alan Taylor, author of American Revolutions: A Continental History, 1750–1804

Advance praise: “Elegantly written and copiously sourced, Jessica K. Lowe’s book is a must-read for specialists and students alike. Lowe upends the accepted notion that southerners went outside the law to resolve conflicts because of the culture of honor that was inextricably embedded in slavery. She uses criminal law to open a window into social change in postrevolutionary Virginia and to set the stage for antebellum-era conflicts in imaginative and unexpected ways.” –Victoria Saker Woeste, American Bar Foundation

Advance praise: “Jessica K. Lowe’s beautifully crafted account of murder and justice powerfully illuminates the reconstruction of criminal law in the early American republic. Lowe skillfully turns the story of a single Virginia killing into a compelling meditation on how people, high and low, struggled over the meaning of equality and the rule of law in the aftermath of revolution. A formidable piece of scholarship, Murder in the Shenandoah is also a gem of historical narration and analysis, at once tough-minded and humane.” –Sean Wilentz, author of The Rise of American Democracy: Jefferson to Lincoln

Advance praise: “Professor Lowe has produced a volume that is both a murder mystery and a mini-treatise on the history of criminal law in colonial Virginia. Hard-nosed legal history has seldom been presented in such fascinating, readable form. Behind the legal story is an equally important story of social change in early Virginia. Lowe knows her Virginia law, and applies to it the questions of a modern historical sensibility. Readers will be surprised and intrigued by this admirable volume.” –Stanley Katz, Princeton University Center for Arts and Cultural Policy Studies

Advance praise: “In Jessica K. Lowe’s poetic telling of a murder trial in the Shenandoah Valley on Independence Day in 1791, we see how issues of class, violence, and the rule of law came together to lead to the execution of a Virginia patrician. Lowe’s beautifully written book shows the law in motion. Wage workers, slaves, jurors, and the legal and planter elite all cross her stage as the values of democracy made a new American law.” –Alfred L. Brophy, author of University, Court, and Slave: Proslavery Thought in Colleges and Courts and the Coming of Civil War

Erman Discusses Puerto Rico on the Podcast BackStory

Sam Erman, Associate Professor of Law at the University of Southern California, appeared in a recent episode of the podcast BackStory, titled “After Hurricane Maria: The History of Puerto Rico and the United States.” The episode, which aired September 7, 2018, examines the relationship between the United States and Puerto Rico across history and includes Erman’s discussion of Puerto Rico’s constitutional status. You can read more about Erman’s book, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press, October 2018), on the SLH website.

Martha S. Jones Discusses Her Book in the Johns Hopkins Hub

Professor Martha S. Jones sat down recently with the Johns Hopkins Hub to discuss her book, Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, June 2018). Check out the interview here.

Erman on the Gonzales v. Williams Case

Professor Sam Erman, author of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press in October 2018), discusses the pivotal Gonzales v. Williams case that shaped the status of Puerto Rico and its citizens in the eyes of the United States government. A lightly edited transcription follows the video. You can read more about the book here.

The Gonzales v. Williams case is a Supreme Court decision from 1904 that began when a woman traveled from Puerto Rico to Ellis Island and she was stopped at Ellis Island as an alien who was undesirable for entry. She sued and said “I’m not an alien; I’m an American.” The argument was that you [the United States] annexed Puerto Rico in 1899 and that transformed all of us [residents of Puerto Rico] into Americans, and thus U.S. citizens. This was important, not primarily because of Puerto Rico, but because the U.S. had also annexed the Philippines–which was much larger and more populous and which most Americans considered to be much more racially “degraded” at the time (and so more of a threat). But Isabel Gonzalez, the woman who took this trip, was the test case. And what the Supreme Court decided was that she was not an alien—she was allowed to enter. But they didn’t decide if she was a citizen. And this was important (to my book, and to legal history more broadly) because it was part of a trend of how the Supreme Court dealt with the expansion of the United States into overseas islands in the early twentieth century. Rather than say that colonialism as a whole is okay, or say that we are not going to allow anything like colonialism in this country, the Supreme Court equivocated. So, in this case, they said, “well, you’re not an alien. We won’t decide if you’re a citizen.” That opened up the possibility that there were Americans who weren’t citizens—other than American Indians, which had always been a special case. And in other cases, the Supreme Court said “we’re going to say that there are places that maybe don’t have to become states,” which violated a longstanding rule that all U.S. territory other than the capitol was a state or would become a state. And they also said that there were Americans living in the United States with less than full constitutional rights. It had been thought, prior to 1898, that every American within U.S. jurisdiction had to have the full gamut of constitutional rights. So I use this case in order to try to illustrate how the Court uses strategies of evasion and ambiguity in order to kind of nudge the nation to a position that seems simultaneously to somewhat honor the constitution and to accommodate certain forms of empire.

Birthright Citizens: A History of Race and Rights in Antebellum America

Martha S. Jones. Cambridge University Press, June 2018. Available  via Amazon and Cambridge University Press.

Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans’ aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.

Endorsements:

“Beautifully written and deeply researched, Birthright Citizens transforms our understanding of the evolution of citizenship in nineteenth-century America.  Martha Jones demonstrates how the constitutional revolution of Reconstruction had roots not simply in legal treatises and court decisions but in the day to day struggles of  pre-Civil War African-Americans for equal rights as members of the national community.”
–Eric Foner, Columbia University

“Martha Jones’s ‘history of race and rights’ utterly upends our understanding of the genealogy of citizenship. By showcasing ordinary people acting on their understanding of law’s potentialities, Jones demonstrates the vibrancy of antebellum black ideas of birthright citizenship and their impact on black political and intellectual life. Written with verve, and pulling back the curtain on the scholar’s craft, Birthright Citizens makes an important contribution to both African American and socio-legal history.” 
–Dylan Penningroth, University of California, Berkeley

“Birthright Citizens gives new life to a long trajectory of African Americans’ efforts to contest the meaning of citizenship through law and legal action.  They claimed citizenship rights in the courts of Baltimore, decades before the concept was codified in the federal constitution – ordinary people, even the formally disfranchised, actively engaged in shaping what citizenship meant for everyone. Martha Jones takes a novel approach that scholars and legal practitioners will need to reckon with to understand history and our own times.”
–Tera Hunter, Princeton University

“Birthright Citizens is a brilliant and richly researched work that could not be more timely. Who is inside and who is outside the American circle of citizenship has been a fraught question from the Republic’s very beginnings. With great clarity and insight, Jones mines available records to show how one group–black Americans in pre-Civil War Baltimore– sought to claim rights of citizenship in a place where they had lived and labored. This is a must-read for all who are interested in what it means to be an American.”
–Annette Gordon-Reed, Harvard University

“In this exacting study, legal historian Martha Jones reinterprets the Dred Scott decision through a fresh and utterly revealing lens, reframing this key case as just one moment in a long and difficult contest over race and rights. Jones mines Baltimore court records to uncover a textured legal landscape in which free black men and women knew and used the law to push for and act on rights not clearly guaranteed to them. Her sensitive and brilliant analysis transforms how we view the status of free blacks under the law, even as her vivid writing brings Baltimore vibrantly alive, revealing the import of local domains and institutions – states, cities, courthouses, churches, and even ships – to the larger national drama of African American history. Part meditation on a great nineteenth-century city, part implicit reflection on contemporary immigration politics, and part historical-legal thriller, Birthright Citizens is an astonishing revelation of the intricacies and vagaries of black struggles for the rights of citizenship.”
–Tiya Miles, author of The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits

In the News:

• Jones discussed birthright citizenship and the fourteenth amendment in Time, the Atlantic, and NPR in October 2018.
• Jones sat down with the Johns Hopkins Hub to discuss her book (August 2018)
• KPFA radio aired an interview with Jones, “The American Circle of Citizenship: Who is Inside and Who is Outside?” (August 2018).
• Jones’ Birthright Citizens declared a “must read” race and culture book of the summer by Colorlines.
• Lapham Quarterly excerpted Birthright Citizens in July 2018.
• Newbooksnetwork.com published an interview with Jones about Birthright Citizens.
• Professor Jones discussed Birthright Citizens in an interview with WYPR in July 2018.

Jones on Protesting NFL Players

Martha S. Jones, professor of history at Johns Hopkins University and SLH author, recently penned an op-ed in the Washington Post titled “Trump said protesting NFL players ‘shouldn’t be in this country.’ We should take him seriously.” In the piece, Professor Jones responds to President Trump’s remarks regarding protesting NFL players and considers the  historical context for his actions.  Jones is the author of Birthright Citizens: A History of Race and Rights in Antebellum America (forthcoming from Cambridge University Press, Summer 2018). You can read the full op-ed here, on the Washington Post website.

Kolla on the Writing Process and Links Between Projects

Professor Edward Kolla of Georgetown University Qatar discusses the inspiration for his next project and its ties to his recently published book (Sovereignty, International Law, and the French Revolution) in this third segment of our interview series. You can watch the interview in the video clip below and follow along with the lightly edited transcript that follows. Want to learn more about Professor Kolla’s work? Check out  interview installments one and two in the Studies in Legal History video series.

So, I would say the writing process for the book was challenging; it was the first time I’ve done anything like this and so it was a lot of work (but I enjoyed it, obviously). I’m now straight into my next project, which is a similar project in terms of the history of international law. It’s about the history of the passport.

This project is born of my love of travel. I’ve always loved to travel; I’m sure I was standing in a lineup somewhere, staring down at my passport, waiting to go through immigration and thought, you know, “what is the history behind this document? I should probably know the history behind this document.” It’s actually quite an elusive history. In that way, it’s similar to my first book because the way that popular sovereignty enters discourse about international law is not something that is proactively decided by states. The principle of popular sovereignty does not become a principle of international law because all countries get together and agree on it; revolutionaries start embracing these ideas, they apply them in certain diplomatic situations, and slowly over time it becomes a principle of international law. The history of the passport is also one of legal happenstance. All states never got together and agreed they needed passports and that passports needed to look a certain way. It’s, again, a story of historical development, so in that way the projects are very similar.

The other overlap between the projects is that the French Revolution was an important moment in the history of the passport. Up until the French Revolution, it was taken for granted that if you were carrying some kind of identity document when you’re traveling, the person carrying that document is the person for whom it was intended. It was only at the time of the French Revolution that Revolutionaries started thinking, “Oh no! People could be smuggling, or émigrés could be escaping from France.” So they actually started to write the description of the bearer of these documents on the documents themselves. So, not just hair color or eye color, but shape of nose, and size of forehead. That was really the first moment that these documents started to include information about who the bearer was and this is obviously the precursor to the photographs and biometric data that are used in passports today.

Martha Jones on Birthright Citizens

In this video, Professor Martha Jones of the University of Michigan discusses her book Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, Summer 2018). The video, courtesy of Michigan Law, provides an overview of the forthcoming book and its implications for thinking about citizenship in America. An edited transcription follows.

I’m finishing a book called Birthright Citizens, which is a look at race and citizenship in a somewhat unexplored period. That is, the period before the U.S. Civil War; the period before the amendment of the Constitution, with the 14th Amendment providing birthright citizenship for the first time in the United States. My case study is three African Americans, former slaves, and their descendants. All with a mind toward understanding how, as a nation, we grapple with people who occupy this in-between status–neither slaves, nor fully free citizens. How, in law, do we regard those people? Most often that story is told through a somewhat notorious US Supreme Court case called Dread Scott vs. Sandford, in which the court, through Roger Taney, declaims that no black person can be a citizen of the United States. It turns out that, while Taney was quite sure about his ideas, he really was just one volley in what was an extended debate about race and citizenship before the Civil War.

So, for me, the story begins in the eighteen-twenties with three African American activists themselves, who–through local courthouses, high court arguments, legislatures, and political conventions–again and again make the argument that they are citizens of the United States. Again and again, they make the argument that by virtue of birthright, military service, and their contributions to the economic prosperity of the nation, they should be citizens.

It’s an important chapter in part because it tells a new version of the Fourteenth Amendment, which was not merely a creature of the U.S. Senate, but actually came out of the activism of free African Americans themselves. 

Binyamin Blum Reviews Likhovski for Jotwell

In January 2018, Binyamin Blum reviewed Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017) for Jotwell. The review can be found on the Jotwell website and is also reproduced below. You can learn more about the book by watching the series of short clips Professor Likhovski recorded for SLH concerning his project. 

On Fiscal History: A Cultural History of Tax Law
Binyamin Blum

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.”During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,¹ which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.

1. Or what Lawrence Zelenak has termed “fiscal citizenship.” See Lawrence Zelenak, Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (2013). [↩]

Binyamin Blum, On Fiscal Citizenship: A Cultural History of Tax Law, JOTWELL (January 11, 2018) (reviewing Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel (2017)), https://legalhist.jotwell.com/fiscal-citizenship-cultural-history-tax-law/.

Nicoletti on the Treason Prosecution of Jefferson Davis

Cynthia Nicoletti, Professor of Law and History at the University of Virginia, recently sat down to discuss her latest book, Secession on Trial: The Treason Prosecution of Jefferson Davis (Cambridge University Press, 2017). In the clip below, she describes the fraught decision whether or not to prosecute Davis for treason, and the broader constitutional implications of the eventual decision. A lightly edited transcript follows.

I am Cynthia Nicoletti. I am a Professor of Law and a Professor of History at the University of Virginia. My new book is Secession on Trial: the Treason Prosecution of Jefferson Davis. One of the things that I argue in this book is that Davis’ treason trial is going to implicate the biggest constitutional question of the Civil War, which is the constitutionality of secession. One of the reasons that he’s not tried—the primary reason that he is not tried—is that the government is quite worried about the prospect of Davis’ acquittal (or, at least, their failure to convict him). They’re worried that Davis’ acquittal might provide a backdoor vindication of the right of secession, which is precisely what they are not hoping for.

There are two things that everybody knows about the legal history of the Civil War: everybody knows that the Civil War settled the question of secession’s constitutionality in favor of the permanency of the union. And everybody knows that the Civil War ended slavery. So, what the book really does, is it argues against– or complicates–one of the basic things that we know about the legal history of the Civil War. What I’m trying to show in the book is how fraught this question of the war settling the constitutionality of secession in the Union’s favor really was.

It was very important to me in writing this book that I treated this question as an open question, basically because I think that there wasn’t a clear answer as to whether or not the Constitution allowed secession. I want to bring the reader back into this time period where there hadn’t been 150 years where everybody clearly understood that secession was unconstitutional. What I’ve heard in general is that if only we had prosecuted Robert E. Lee and other Confederates for treason in the aftermath of the war, we wouldn’t be dealing with the specter of confederate statues and celebratory commemoration of Confederates. One thing that I hope that this book does, is that it might push against the easiness of such a narrative, because one of the things that the book talks about is how difficult it was to get treason convictions against Confederates.

Note: this video comes courtesy of UVA Law Communications. Any media relations inquiries can be sent to comm@law.virginia.edu.

Likhovski on His Writing Process

Sometimes the book you set out to write isn’t the book you end up with. Listen as SLH series author Professor Assaf Likhovski of Tel Aviv University discusses the process of writing his latest book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). A lightly edited transcription follows. If you missed the first or second clips in this interview series, you can catch up on the SLH website.

It took me more than a decade to write this book, unfortunately, and I must say that I didn’t intend to write the type of book that ultimately was published. When I began thinking about this book, I was thinking it was something completely different; I’m a legal historian, but I also teach the basic tax course at my home institution, Tel Aviv University. When I was teaching tax cases, I felt very frustrated because I could tell my students about the doctrinal aspects of the cases, but I didn’t know anything about the political, cultural, or economic context.

There were all these cases that I really wanted to know more about, among them an important tax-avoidance case called Mefi that was decided by the Israeli Supreme Court in 1967, and there was nothing about the historical context of this case. But, there was a model that I could use; there was a legal historian Robert B. Stevens, who wrote a book in the 1970s about the British House of Lords. It’s called Law and Politics: the House of Lords as a Judicial Body. It examines all sorts of cases, among them tax cases, placing them in the political, economic, and cultural context of their time. And I thought that I could use the approach that Stevens’ book advocates in analyzing cases such as Mefi.

And that is what I did; actually, the last chapter of the book—chapter 6—was the first chapter that I actually wrote. It’s an analysis of the history of this specific tax-avoidance case and its role in Israeli tax law in the transition from a pro-taxpayer, to a pro-government approach to tax-avoidance. After I wrote an article about the Murphy case, I also wrote an article about British tax avoidance cases in the 1930s and another article about American tax avoidance cases in the 1930s; my idea was to write a comparative legal history of tax avoidance cases in Israel, the UK, and the United States. But, when I started enlarging the Israeli part of the book, looking more deeply into the history of tax avoidance, tax evasion, and economic and social and cultural history, I found so many materials that ultimately I ended up with a book which is only focused on the Israeli case. So, it didn’t come out as a comparative or transnational book; it’s merely focused on one specific tax jurisdiction, although I think that the story that I tell is relevant to other jurisdictions too.

Karen Tani Honored With the Cromwell Book Prize

Studies in Legal History congratulates Professor Karen Tani on receiving the Cromwell Book Prize for her work, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016). The prize, awarded at the annual meeting of the American Society for Legal History, recognizes excellence in scholarship in the field of American Legal History by a junior scholar.

Secession on Trial: The Treason Prosecution of Jefferson Davis

Cynthia Nicoletti. Cambridge University Press (October 2017). Available to order via Cambridge University Press or Amazon.

Sovereignty, International Law, and the French Revolution

Edward James Kolla. Cambridge University Press, October 2017. Available via Cambridge University Press and Amazon.

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

Studies in Legal History (SLH) is pleased to share with our readers an exchange between Robert W. Gordon and William Nelson on critical legal studies. This exchange, of interest to legal historians, was not included in SLH’s publication of Gordon’s collected essays because of its nature as a dialogue between the two scholars, rather than a free-standing work by Gordon. However, we recognized the import of this interchange as it intersects with Gordon’s work and issues of great moment to the field, so we are making it available here (click the link below to read the exchange as a PDF). You can also read more about Gordon’s recent publication with the series, Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017) here.

Gordon-Nelson Exchange-1

Impeachment: The Constitutional Problems: Who Said That a 44 Year-Old Monograph Can’t Be Relevant?

R. B. Bernstein, City College of New York

In today’s atmosphere of constitutional sturm und drang, many are revisiting the 1972-1974 Watergate crisis, which forced President Richard M. Nixon to resign. The Studies in Legal History series played a supporting role in that crisis by publishing Raoul Berger’s Impeachment: The Constitutional Problems (1973). Impeachment made Berger a major figure in the impeachment debates. His stature as a leading constitutional scholar and a progenitor of originalist jurisprudence was evident then, and only grew over time.

Born in 1901 in the Ukraine, Berger came to the United States with his family in 1904. After a career as a violinist, he graduated from the University of Cincinnati and the Northwestern University School of Law, earning his LL.M. from the Harvard Law School. Following a legal career in government service and private practice, he taught at the University of California, Berkeley, Law School and became Harvard’s Charles Warren Senior Fellow in Legal History.

In the 1960s, Berger launched a second career as a constitutional historian. In his first book, Congress vs. the Supreme Court: An Exercise in Dialectic (1969), he analyzed the nature of congressional power over the Court’s jurisdiction. In his next book, Berger worked to develop law-review articles on impeachment that he had published in the 1960s into a book. Working closely with Stanley N. Katz, the first editor of Studies in Legal History, Berger crafted a formidable study focusing on impeachment in early modern England, which he identified as the key influence on the Constitution’s framers. The 1968-1970 controversies over Republican efforts (secretly backed by President Nixon) to impeach Justices William O. Douglas and Abe Fortas drove Berger’s interest. So, too, did the James Madison biographer Irving Brant, who responded to the Douglas and Fortas controversies by publishing Impeachment: Trials and Errors (1972).

Berger’s book dwarfed Brant’s in its scholarship, but they also differed on three substantive points. First, Berger maintained that impeachable offenses were not limited to indictable felonies but also included violations of the constitutional system’s central principles. Second, Berger claimed, an impeachment proceeding could be subject to judicial review. Third, he insisted, those concerned with judicial misconduct, incompetence, or corruption could forgo the unwieldy mechanism of impeachment and use instead the common-law writ of scire facias to remove federal judges – a remedy more legitimate than manipulation of courts’ dockets to keep cases away from judges deemed incompetent or unfit.

Berger’s argument for a broader understanding of impeachable offenses shaped the core of the controversy over impeaching Nixon. Rep. Peter J. Rodino (D-NJ), who chaired the House Judiciary Committee, reportedly was so fearful of fanning speculation about impeachment that he removed the jacket of Berger’s book while reading it, so that others would not see what he was reading.

Berger’s scholarship fueled the impeachment inquiry against Nixon in other ways. The House Judiciary Committee published an anthology, Impeachment: Selected Materials (1973), featuring Berger’s law-review article on impeachable offenses, the most influential argument of his Studies in Legal History volume. Also, Bantam issued mass-market paperback editions of Congress vs. the Supreme Court, Impeachment: The Constitutional Problems; and Executive Privilege: A Constitutional Myth (1974), a trilogy that Garry Wills praised as “one of the scholarly landmarks of our time.”

Berger’s subsequent work defined a new direction for constitutional scholarship. In a series of combative monographs, beginning with Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), and including studies of federalism and the death penalty, Berger used originalist methodology to challenge much of modern constitutional jurisprudence’s orthodoxy. Many former admirers challenged him on methodological and substantive issues; Berger fired back in what seemed to his critics to be endless law-review articles. He died in 2000.

Impeachment: The Constitutional Problems has lasted the longest of his books – but it has not gone unchallenged. In Impeachment in America, 1635-1805 (1984), historians Peter Charles Hoffer and N.E.H. Hull paralleled Berger’s conclusions about the meaning of impeachable offenses but disputed Berger’s emphasis on English sources; insisting that historians seeking to understand the development of impeachment in America had to consider American colonial, revolutionary, and early national sources.

Still, as it did during the 1998-1999 controversy over impeaching President Bill Clinton, Raoul Berger’s landmark study is again finding readers, as the nation considers whether the words and deeds of another president merit impeachment. Not bad for a 44-year-old monograph in a scholarly book series devoted to legal history.

Picture of Raoul Berger sourced from Liberty Fund (http://oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment).

Tax Law and Social Norms in Mandatory Palestine and Israel

Assaf Likhovski (Cambridge University Press, July 2017).  Available to order from Cambridge University Press and Amazon.

Taming the Past: Essays on Law in History and History in Law

Robert W. Gordon (Cambridge University Press, June 2017). Available  via Cambridge University Press or Amazon. Listen here as Professor Gordon discusses his book.

Lawyers and judges often make arguments based on history – on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces – such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.

Endorsements:

“Robert W. Gordon has been one of the preeminent commentators on the rapid rise of American Legal History as a discipline. Each of these essays, written over the past forty years, constitutes an important example of his unequalled influence over the dramatic development of the field.”

–Morton Horwitz, Charles Warren Professor of American Legal History, Emeritus

“The sparkling essays of one of the preeminent legal historians of our era are now collected in one place, where they can talk with each other. Here we see the vintage apercus that make us laugh aloud at Gordon’s wit and nod our head at his wisdom. So, for example, we see Gordon discussing ‘Willard Hurst’s benign, if also rather insistent, influence;’ talking about how ‘dead paradigms … never really get killed off [in law], but hang around and Dracula-like, rise from their coffins to stalk the earth;’ observing that E. P. Thompson ‘almost never (save when exposing an opponent as an ignorant twit) showed off how hard he had been working;’ and pointing out that ‘history does not make a good domestic pet.’ This book is a real treat!”

–Laura Kalman

“Once an arcane backwater, mostly located in the backrooms of law schools, disconnected from the main themes of academic legal study, legal history has become a site of core controversies, ones that everyone involved with the study of law had to engage with. Legal history is where scholars from emerging fields of ‘non-legal’ history – including historical studies of gender, of race, and of market capitalism – found the scholarly perspectives that made possible exciting new work about law. The writings of Robert W. Gordon helped guide how it all happened. American scholarship owes him a debt of gratitude. And it is good that a new generation will be introduced to his analytic clarity, to his wisdom, and to his attractive voice, through this accessible edition.”

–Hendrik Hartog, Princeton University

“For four decades, Robert W. Gordon has provoked, inspired, and nourished the writing of critical legal histories. I can still recall the exhilaration of reading him as a student. This indispensable volume collects classics and little-known essays that will engage first-time and returning readers with unsettling questions about the ways we understand law’s history and authority.”

–Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

McKinley Honored with Judy Ewell Award

It is with great pleasure that we announce that Professor Michelle McKinley has been awarded the 2017 Judy Ewell Award for the Best Publication in Women’s History, presented by the Rocky Mountain Council for Latin American Studies (RMCLAS). She received this honor for her recent publication with the Studies in Legal History series, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016). The award will be presented at the RMCLAS banquet in Salt Lake City, Utah, in April. In the meantime, we congratulate Professor McKinley for the well-deserved recognition for Fractional Freedoms. Listen to Professor McKinley discuss her work in this recent interview or read more about Fractional Freedoms here.

Criminal Law in Liberal and Fascist Italy

Paul Garfinkel, December 2016. Cambridge University Press. Available to purchase via Cambridge University Press and Amazon.

By extending the chronological parameters of existing scholarship, and by focusing on legal experts’ overriding and enduring concern with ‘“-dangerous-”’ forms of common crime, this book offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–1943). Paul Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom’s penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal research that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.

Garfinkel’s Criminal Law in Liberal and Fascist Italy received the 2017 Helen and Howard R. Marraro Prize for best book on Italian History.

Endorsements:

“Professor Garfinkel’s book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries.”

-Anthony Cardoza, Loyola University Chicago

“Paul Garfinkel’s vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography.”

–Maura Hametz, Old Dominion University

Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel’s ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini’s fascist regime.

-Dr. Jonathan Dunnage, Swansea University

“This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy’s 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider de- bates on the relationship between liberalism and fascism, Paul Garfinkel’s conclusions will attract the attention of scholars in many different fields.”

-John Davis, University of Connecticut

Reviews:

R.J.B Bosworth of Jesus College, University of Oxford, reviewed Criminal Law in Liberal and Fascist Italy for European History Quarterly (vol. 47, issue 4) in 2017. You can read the review online here.

SLH Welcomes Reuel Schiller to the Editorial Team

Studies in Legal History Editors Holly Brewer, Michael Lobban, and Sarah Barringer Gordon welcome Reuel Schiller to the ALH editorial team.

“I am deeply honored to become a co-editor of the Society’s Studies in Legal History series,” Schiller said. “The series’ list is a tremendous one, and its role in nurturing young legal historians is exceptionally important. Our field is growing, both in numbers and in the range of legal subjects that scholars are viewing through a historical prism. I appreciate the opportunity to advance the work of the series in this exciting time for our discipline.”

Reuel Schiller is The Honorable Roger J. Traynor Chair and Professor of Law at the University of California, Hastings College of the Law, where he teaches American legal history, administrative law, and labor and employment law. He is the recent recipient of the 2016 John Phillip Reid Book Award from the American Society for Legal History and has written extensively about the legal history of the American administrative state, and the historical development of labor law and employment discrimination law. He is the author of Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (Cambridge University Press, 2015), as well as numerous articles on the history of American labor law and administrative law in the twentieth century. In 2008, he was awarded the American Bar Association, Section on Administrative Law and Regulatory Practice Award for Scholarship in Administrative Law. Forging Rivals was awarded the 2016 John Phillip Reid Book Award from the American Society for Legal History  and received an honorable mention for the 2016 J. Willard Hurst Prize from the Law and Society Association.  His current research focuses on the development of administrative law and the regulatory state after the collapse of the New Deal order.

Reuel is particularly (though not exclusively) interested in working with authors writing about subjects in nineteenth and twentieth-century American legal history related to state-building, the employment relationship, constitutional law, public law, and the interaction of race and class in the legal system. Though his own work sits at the juncture of legal, political, and intellectual history, he is delighted to work with authors across a wide range of methodologies and subjects.

Michelle McKinley On Fractional Freedoms

Professor Michelle McKinley, the Bernard B. Kliks Associate Professor of Law at the University of Oregon School of Law, discusses her forthcoming book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, September 2016). The book explores slavery and what Professor McKinley terms “fractional freedoms” in the context of colonial Peru.

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Sophia Lee and Michelle McKinley on Archival Finds

What makes an archival visit go from good to great? Professors Michelle McKinley of Oregon University School of Law and Sophia Lee of the University of Pennsylvania Law School discuss “happenstance discoveries” made in the archives and the significance of these finds to their own projects. Read more about the works shaped by this archival labor in Professor Lee’s recent book, The Workplace Constitution from the New Deal to the New Right (2014) and Professor McKinley’s forthcoming Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (2016).

Edited transcripts of the videos follow:

Professor Sophia Lee on her experiences in the archives:

So I’ve worked in a range of different archives, I work all over the country, but some of the best stuff I’ve found was really happenstance. There were a few happenstance discoveries that I made in the archives that I feel like I really couldn’t have written the book without and they were flukes that I found them, to some extent. One of them came from being at the National Archives and just asking for more, and more, and more records and all of them had to be cleared by somebody in the back. This guy wasn’t even really an archivist but eventually he came out and he said,

“okay, you seem to be really interested in all these things. We don’t really have any of these things, but I do have this random, single microfilm roll from some moment when JFK said all agencies should microfilm all their records for some kind of record preservation. And it was kind of a partial undertaking—some agencies did it, some didn’t, none did it completely, but the Department of Justice has this one microfilm reel—and you’re welcome to look at it.”

And I found things in there that were kind of the lynchpin of the book, and I never would have been able to write it otherwise. I think you really have to, when you’re going out to the archives, befriend archivists, talk to people, and chat them up about your project. And be persistent, because sometimes the things you are going to most value are not going to be things you’re ever going to see listed in a finding aid.

I am already working on my next project and it doesn’t necessarily tie directly in, but in many ways the second book is inspired by something I found in the archives when I was working on the first book that just rung a little bell for me and set off a series of questions that have kind of tickled at my brain ever since. And so I just sort of set it aside; oh maybe that will be…at first I thought maybe just an article or something that would follow on and once I started digging deeper it has grown in to what I think will be a whole book project. So the intellectual roots [of the second book project] are certainly in the first one even if the subject matter is not entirely the same.

Professor Michelle McKinley on her experiences in the archives:

Right at the time that I’m finishing writing—I’m on sabbatical, and I’m finishing my book, I have all my evidence gathered from the past ten years and I’m sitting down to write—the archivist says to me “you know, there’s a box. And we’ve never catalogued it; we’ve just never have had the time. Maybe it’s of interest to you?” So, I said (I’m always interested), so I’m like, “sure, I’ll look at it!” And then they bring me this box and it’s literally, you know, I want to say, sheaves of paper that are tied up with string. So what happens is that when you open the string…so, imagine opening a Christmas present that is sort of just, you know, not in a box the way that we have them now, but you open it and you just see hundreds of pieces of loose paper. And I look at it and I’m looking and it’s handwritten and it is…they’re called censuras.

It’s a huge find for me, and it comes at exactly the wrong time. Because I am finishing my book, and here I have this find that nobody has ever looked at. And it’s not that people are negligent in the archive, they just have so much material. And I have a feeling that this was a box that was just sitting there, waiting, because it was going to be so tedious to go through each piece of paper, figure out how to catalogue it, and where it went to. So here I am and I’m looking at…so, censuras are what I call spiritual subpoenas in which a litigant gets the priest at high mass to urge people to come forward with any information that he or she might have about a proceeding. And it can only take place, it can only be issued by the priest.

Then I started to get really really interested in it and so I go back and I look at all of these ecclesiastical manuals, and it tells the priest that they’re to cover the Bible in black cloth and have a candle burning and this is the prayer: it says “if you don’t come forth, you will be condemned to Hell, your wives will be widows, your children will be orphans, they’ll go begging from door to door and nobody will receive them. Sodom and Gomorrah, the fate of Sodom and Gomorrah, and everything will happen to you.” So it’s actually pretty scary. It’s this way that they’re using the pulpit and the power of God to say “you need to come forth with any information that you have.” It turned out to be a very effective way of getting people to talk about what they knew or what they might have witnessed. So what I ended up doing, because I can’t dig into the whole box (there’s like 9,000 pieces of paper), what I ended up doing was looking at—because I was writing a chapter on baptism—children whose mothers, or children who then grew up later, using this process to get people who knew that they were freed as children to come into the court. So I focused on that and you know I really want to go back and just spend more time with it.

States of Dependency: Welfare, Rights, and American Governance, 1935-1972

Karen M. Tani

April 2016. Order online through Amazon or Cambridge University Press (ISBN: 9781107613218).

Who bears responsibility for the poor, and who may exercise the power that comes with that responsibility? Amid the Great Depression, American reformers answered this question in new ways, with profound effects on long-standing practices of governance and entrenched understandings of citizenship. States of Dependency traces New Deal welfare programs over the span of four decades, asking what happened as money, expertise, and ideas traveled from the federal administrative epicenter in Washington, DC, through state and local bureaucracies, and into diverse and divided communities.
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The Old English Penitentials and Anglo-Saxon Law

Stefan Jurasinski.

April 2015. Order online via Cambridge University Press or Amazon.

In this book, Stefan Jurasinski offers a rich new insight into the nature of law and society in Anglo-Saxon England through a close study of penitential texts, written in the vernacular for priestly use. As these texts bear witness, Anglo-Saxon England’s code of norms was more complex than has often been assumed by historians who have only made use of the legislative codes of Anglo-Saxon kings. The vernacular penitentials gave expression to norms that were not voiced by royal legislation but which must have enjoyed the status of customary law. Jurasinski’s close examination of the content of these texts across a number of chapters offers us new insight into the nature of Anglo-Saxon norms in such diverse areas as slavery, marriage and welfare. It also gives greater insight in to Anglo-Saxon notions of intention and guilt than is to be found in the secular texts.