Joseph Bennett, a Legal Tourist in Boston, 1740

Sally Hadden

Some of the most detailed legal histories of New England have fixed upon the strong differences that existed between crimes and their punishment in England and New England. The strength of the Puritan ethos infused many of the criminal laws passed and then left on the books through the seventeenth and into the eighteenth century. But how would a London lawyer have viewed the contrasts existing between the world of legal practice he knew, and the one he visited in Boston in 1740? Joseph Bennett left us a fantastically detailed rendering of procedural and practical differences that struck him in the creation of his "A History of New England." This paper examines some of these differences, considering them in the rubric of 'legal tourism' as well as for what they tell us about Boston's emerging legal culture.


The Reconstruction of American Citizenship: Fenians and the Expatriation Crisis of the 1860's

Lucy Salyer

At the height of Reconstruction in 1868, Congress redefined the contours of American citizenship as it simultaneously broadened national power. The 14th Amendment is the best known effort to establish the basis of membership in the American polity. The new amendment not only affirmed and gave constitutional basis for birthright citizenship, but it also centered citizenship in the nation rather than in the states. The Expatriation Act of 1868, less well studied, was just as important to the articulation of a more powerful nation state. The Act arose after a group of Irish American Fenians launched a raid in British Canada and were subsequently tried for treason by Britain, despite their status as naturalized American citizens. The trial sparked a diplomatic crisis and a broad change in international as well as American law as several countries adopted treaties recognizing the right of citizens and subjects to change their political allegiances from one country to another. This paper explores the specific historical circumstances which provoked a broader affirmation of voluntary allegiance and analyzes the broader significance of expatriation for concepts of nation and citizenship in the late nineteenth century.


Constitutional Politics and the Collapse of the New Deal Conceptual Order

Mark Graber

This New Deal conceptual universe was structured by a distinctive understanding of the distinction between law and politics. As originally conceived, the distinction required persons making constitutional decisions to base their rulings solely on constitutional grounds. As reformulated by Herbert Wechsler and other process theorists, the law/politics distinction entailed a judicial obligation to decide constitutional cases on the basis of legal principle and an institutional division of labor. In sharp contrast to James Bradley Thayer and other classical legal thinkers who insisted that all governing officials had obligations to make constitutional decisions, Wechsler and others insisted that only justices had obligations to make decisions on the basis of fundamental legal principles, that elected officials were free to act on their policy preferences in all cases, as long as they did not disobey judicial decisions. This understanding of the distinction between law and politics structured both the constitutional theory of the late twentieth century and the constitutional history. Historically minded political scientists have undermined crucial elements of that constitutional history, demonstrating that crucial cases and constitutional controversies cannot be understood as contests between principle and policy preferences. In doing so, this paper argues, that historical work has undermined the central elements of the contemporary distinction between law and politics. Rather than dividing the political universe into elected officials who make decisions on the basis of policy preferences and justices who decide cases on legal principle, new work in political science and law highlights the interactions between what is conventionally been described as law and politics and demonstrates how each is partly constitutive of the other.


Property and Empire: Re-reading Johnson v. M'Intosh

Jedediah Purdy

Justice Marshall's opinion in Johnson v. M'Intosh is a puzzle in both its doctrinal structure and Marshall's manifest ambivalence about his ruling and long, strange dicta that are both triumphal and elegiac. Some of the puzzles are newly intelligible when read in the context of the law and theory of colonialism, which, like the case itself, was concerned with the expropriation of continents and relations between dominant and subject peoples. The presentation will deal with the opinion's debt to a distinction between two bodies of law: one governing relations among "civilized" nations, the other for relations between "civilized" governments and the "imperfect sovereigns" of other nations, and the role that property institutions played in the theory of historical development that underlay that distinction.


Abstracts from Previous Papers


The Corporate Origins of Judicial Review

Mary Bilder

Professor Bilder will be presenting her work on the relationship between judicial review and corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, she argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to the Constitution-what is now referred to as judicial review. This history helps to resolve certain debates over the origins of judicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation could not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.


Creating an American Property Law: Alienability and its Limits in American History

Claire Priest

This article analyzes an issue central to the economic and political development of the early United States: laws protecting real property from the claims of creditors. Traditional English law, protecting inheritance, shielded from the reach of creditors a debtor’s land, though not chattel property, in two respects. Under English law, an individual’s freehold interest in land was exempted entirely from the claims of unsecured creditors both during life and in inheritance proceedings. In addition, even where land had been explicitly pledged as collateral in mortgage agreements, Chancery court procedures imposed substantial costs on creditors using legal process to seize the land.

American property law, however, emerged in the context of colonialism and the dynamics of the Atlantic economy. Although the English property laws were voluntarily rejected by several colonies that sought to improve the terms upon which credit would be extended, laws exempting land from debts were administered in many colonies. In 1732, however, to advance the economic interests of English merchants, Parliament enacted a sweeping statute, The Act for the More Easy Recovery of Debts in America, which required that real property, houses, and slaves be treated as legally equivalent to chattel property for the purpose of satisfying debts in all of the British colonies in America and the West Indies. This statute, and those of the colonies that voluntarily reformed their laws prior to the Act, substantially dismantled the legal framework of the English inheritance system by giving unsecured creditors priority to land over heirs. The Act also provided Parliamentary authority for the legal treatment of slaves as chattel, rather than as a form of real property attached to the land and, in most colonies, required that the courts hold auctions to sell both slaves and real property to satisfy debts. More broadly, this legal transformation led to greater commodification of real property, the expansion of slavery, and enhanced the availability of capital for economic development.

The Act for the More Easy Recovery of Debts was reenacted by most, but not all, state legislatures in the Founding Era. Through the 1840s, most states exempted only minimal amounts of property from creditors’ claims. These policies--a legacy of the colonial era--subjected American landholders to greater financial risk than would have been the case in the absence of the Parliamentary Act. During times of recession, landowners unable to pay their debts faced the threat of losing land and possible disenfranchisement. Tensions relating to creditors’ remedies, both between the states and the federal government, and between states with differing policies had important consequences for American federalism. The history of creditors’ claims to real property in the colonial and founding periods is important to understanding the emergence of an American property law, the economic development of the colonies and states, the growth and operation of slave labor, and American federalism.


Magistrates’ Examinations, Police Interrogations and Miranda-like Warnings in the Nineteenth Century

Wesley MacNeil Oliver

The New York Legislature in the early nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court in Miranda v. Arizona did not invent the language of the warnings, rather it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The legislature adopted the warnings at a point when courts readily found confessions to be the product of an improper threat or inducement. Courts in the early nineteenth century, however, were willing to accept confessions notwithstanding an improper inducement if the suspect had been given the now-famous warnings. As courts less readily found police practices to amount to improper threats or promises, the legislature permitted interrogators to openly defy the statutes that required the warnings. As contemporary scholars contemplate giving the elected branches greater authority to share with courts the power to interpret the constitutional limits on police, this history counsels caution. The New York Legislature created the warnings, that initially appear to be a procedural protection from coercive interrogation, in response to pressure from courts. When courts no longer applied this pressure, the legislature no longer required the warnings.


Legal Ethics: A Medieval Ghost Story

James A. Brundage
University of Kansas, Emeritus

Sir Paul Vinogradoff once described the medieval revival of Roman law as a ghost story. Although the aptness of his metaphor has been questioned, Professor Brundage will argue that the resurrection of Roman ideas about legal ethics that began during the twelfth century fit the ghost story metaphor rather strikingly. In support of his argument he shall focus his paper on the history of three of the most basic obligations of lawyers to their clients: loyal and faithful service, preserving confidentiality, and avoiding conflict of interest. Roman lawyers in late antiquity enunciated these ideals. When a medieval legal profession started to take shape at the end of the twelfth century its members adopted them directly from Roman sources, although naturally in the process they adapted them to fit the very different social and institutional structures in which they functioned. They still remain central to present-day notions about legal ethics and professional responsibility.


Rites and Rights: Interracial Marriage, Louisiana Legal Cultures, and Contractual Freedom in the Antebellum U.S.

Diana Williams

In pre-Civil War Louisiana, some Catholic priests officiated at sacramental "marriages of conscience" for interracial couples who could not legally obtain a civil marriage. The validity and political implications of such clandestine rituals inspired local and national debates, particularly insofar as they involved relationships between white men and women of color. Framing the issue of legitimate interracial marriages in both legal and moral terms, black Catholics raised important questions regarding social organization, the relationship between church and state power, and overarching principles of contract.

This paper explores the political and legal significance of such relationships by highlighting two particularly vivid cases that called into question a white man's ability to end his marriage with a woman of color. The first case, discussed in part one, is a short work of fiction authored by a New Orleans free man of color in 1843 and set in the city's St. Louis Cathedral. The other, discussed in part five, is an 1847 civil suit to annul an interracial marriage. The second, third, and fourth sections of the paper develop the political, religious, and social contexts for these marriages. Central to this context is a schism among New Orleans Catholics--specifically alluded to in the 1843 short story--that pitted ultramontane clergy and parishioners against lay trustees and civil authorities. Part two focuses on the schism and its implications for racial politics, religious freedom, and political authority. Part three shows how the schism generated church-state jurisdictional conflicts concerning marriage law. Part four addresses the legal and social phenomenon of Catholic interracial marriage from roughly the 1840s through Reconstruction. Expensive, legally unrecognized rituals whose meanings might not be agreed upon by those who undertook them, these marriages nonetheless inspired heated controversies, especially as the Civil War approached. This was so because marriage served as a symbolic and substantive foundation for rights claims concerning emancipation, suffrage, citizenship, and gender respectability.

Last modified: August 22, 2008

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