JOURNAL: Law and History Review (Volume 40 - Issue 3 - August 2022)

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ARTICLES

The Case of Proclamations (1610), Aldred's Case (1610), and the Origins of the Sic Utere/Salus Populi Antithesis (Noga Morag-Levine) / OPEN ACCESS

At least since the middle of the eighteenth-century, salus populi (the people’s welfare) and sic utere (use your own without injuring others) have encapsulated alternative conceptions of regulatory power, with the former associated with continental police regimes and the latter with Anglo-American conceptions of limited government. This article finds the origins of this antithesis in the intersection of two landmark cases addressed by Coke in the fall of 1610: Aldred’s Case, sic utere’s foundational text, and the Case of Proclamations, where Coke disputed the legality of building and starch proclamations. The Crown had provided common-good justifications for these proclamations, but their beneficiaries had included the individual neighbors of smelly starch makers and obstructive new buildings who had been left unprotected by previously existing local law. Rather than acquiescing to centralized legislation enacted via proclamation or parliament, Coke hinted in Aldred’s Case towards common law nuisance adjudication based on the sic utere principle as the desired mechanism for overriding local law that had privileged injurious land uses. Like salus populi, sic utere served a centralizing function. But whereas the former invited expansive regulatory agendas, the latter conditioned interventions on a judicial finding of a nuisance. In this, Coke’s invocation of sic utere in Aldred’s Case presaged the maxim’s eventual role as a substantive limit on the police power.

The Reconstruction of Federalism: Foreign Submarine Telegraph Cables and American Law, 1868–78 (Brooks Tucker Swett) / OPEN ACCESS

In the wake of the Civil War, Americans contested the relationship between the federal government and states. Conflict over federal authority played out in concrete and surprising terms in a controversy that erupted in 1868 surrounding regulation of international telegraphy. The debate, which has remained largely unexamined, centered on whether a state could authorize a foreign company to land a submarine telegraph cable on American shores without Congress’s permission. Scholars have scrutinized consequences of the revision of federalism for individuals’ rights but have devoted less attention to implications for the nation’s international relations and commerce. The regulation of foreign cables, however, proved a key testing ground for the federal government’s efforts to assert sovereignty before both state authorities and other nations during Reconstruction. The episode revealed varied alliances and sources of opposition that emerged amid attempts to project federal power. It also reflected many Americans’ growing expectations of an expanded role for the national government in commerce and the international sphere—a position the federal government realized only haltingly. Intractable problems of federalism contributed to congressional inaction. While undertaking the formidable work of reconstructing the Union, the United States government struggled to delineate the physical boundaries of its authority.

From Reciprocity to Territoriality: Extradition, the Opium War, and the Idea of British Sovereignty in Hong Kong, 1842–44 (Ivan Lee) 

This article examines a key ambiguity in the Opium War treaties of 1842-1843, which concerned the legal status of Hong Kong’s native Chinese population. Overlooked in existing studies, the question was whether the cession of Hong Kong entailed British jurisdiction over crimes involving Chinese people inter se. To British minds, the idea of territorial sovereignty pulled against the reciprocal premise of the treaties, by which China and Britain enjoyed an absolute right to discipline their own offenders. To square the circle, British officials mooted various compromises steeped in extant ideas of sovereignty and subjecthood. Subsequently, all efforts at a principled policy were abandoned following a pivotal murder in eastern Hong Kong. Seven Chinese suspects were examined at the colonial magistracy for possible surrender to China, but the hearing was construed after the fact as a full trial and acquittal, which anchored exclusive British jurisdiction on the island. Thus, Hong Kong lay at the intellectual centre of Britain’s incipient Chinese Empire. The meaning of the Opium War treaties was shaped through iterative domestic discourse, in which the ideas of territorial sovereignty, extradition, and extraterritoriality were mutually constitutive, and law-making involved the retrospective rationalization of equivocal events and decisions on the ground.

Reforming Women, Protecting Men: The Prosecution of Infanticide in Venezuela's Early Republic, 1820–60 (Reuben Zahler)

Court records for infanticide present several mysteries. In three centuries of colonial rule, Venezuela’s Mérida province had just one court case for infanticide. During the first three decades of Venezuela’s independence, the province had over thirty cases, while the country’s other provinces had none. The defendants in these cases were all poor, illiterate, single women. Curiously, court officials endeavored to acquit even in the face of incriminating evidence, such that the courts convicted only those mothers that confessed. This article explores how these women explained to officials why they killed and/or hid the body, and why the judicial system prosecuted these cases, given that the colonial system did not and officials were inclined to acquit. The investigation finds that the mothers explained their actions as principally due to economic and emotional desperation, including fear of punishment from their parents, rather than an intent to preserve their feminine honor. Further, the provincial judicial system began to prosecute this crime as part of a larger project to build a liberal, patriarchal republic. The prosecutions facilitated civilian-state relations, legitimized nascent institutions, sought to protect the mothers and “reform” their morals, and shielded fathers from responsibility for illicit sex.

FORUM: THE EVERYDAY MATERIALS OF COLONIAL LEGAL SPACES

The Stuff of Legal History (Fahad Ahmad Bishara)

This concluding reflection on the forum, “The Everyday Materials of Colonial Legal History,” seeks to emphasize the contributing essays engagement with historical methodologies that take seriously objects, signs, and the theatrical.

Half Real: Presence and Absence in Mexico's Juzgado General de Naturales (Bianca Premo)

This article centers on the materiality of Indigenous legal interactions with the viceroy in the special colonial court, the Juzgado General de Naturales, which was located, at least ostensibly, inside the viceregal palace in Mexico City. The partial destruction of the palace during a riot in 1692—a year that roughly bisected Spanish colonial rule in Mexico— serves as a focal point for exploring the dynamic history of personal encounters and physical space in the viceregal jurisdiction from the court's founding in the late sixteenth century through the eighteenth century. It surveys the architectural features of the palace, traces the viceroys’ disappearance from audiences with Indigenous subjects at the beginning of the seventeenth century, and charts native petitioners’ own growing reliance on proxies and papers rather than appearances in the court. By focusing on physical presence within the Juzgado’s operation, the court reveals itself as a space of absence and abstraction as much as pomp and procedure.

Taking the Courts to the Fields: Law, Violence, and Agrarian Custom in Colonial Oaxaca, Mexico (Yanna Yannakakis) / OPEN ACCESS

This article, part of the forum “The Everyday Materials of Colonial Legal Spaces,” analyzes how Spanish law intersected with longue-durée Indigenous histories to pattern performative judicial violence in disputes over boundary lands separating Indigenous communities. During the late seventeenth and eighteenth centuries when population growth and expansion and commercialization of the livestock industry put pressure on Indigenous lands, Native judicial officers used their coercive power and symbols of judicial authority to physically enter boundary lands and shape the course of legal disputes. By combining legal and extralegal procedures, Native officials developed customary patterns of judicial practice and performance proper to their own jurisdiction in which objects invested with political, sacred, and quotidian meaning figured centrally. Staffs of office and whips wielded by Native authorities as emblems of Indian administrative and legal jurisdiction represented one category of the everyday materials of law. Clothing, farming implements, and livestock afforded other tools with which Indigenous farmers and authorities made legal claims. When reading land disputes alongside criminal cases of land invasions across Oaxaca’s judicial archives, it becomes clear that Native officials and farmers used these objects to struggle over territory and authority in cycles of litigation, land titling or contracts of joint-possession, and violence that often endured for decades or centuries, forming an enduring facet of agrarian custom in the region.

“Do Not Harm the Decorum”: Mixed Courts and Cloth in Colonial Indonesia (Sanne Ravensbergen) / OPEN ACCESS

In this article four photographs of mixed law courts (landraad) in nineteenth-century colonial Indonesia are approached as a window to study the materiality and meaning of cloth in courtrooms. The photos grant access to a careful colonial curation as well as complex Javanese hierarchies that were translated onto and through cloth, and its colors and patterns. Batik sarongs, tablecloths, head scarves, robes and gowns, coats and turbans reveal a courtroom of semiotic richness and plurality where different actors were signaling different messages to multiple audiences. This emphasis on cloth contributes to an emergent and rich discussion on the importance of objects in the study of law and empire, that has primarily focused on the materiality of paper and other objects of lawmaking. In the mixed court of the landraad, it was cloth that spoke louder than words and paper. This article emphasizes that in a mixed court the display of a plural world and jurisdictional layering, complicating the binary between direct and indirect colonial rule, was more important than a monolithic reflection of state law. Cloth was crucial to the display of this plural world and used as a way to impose, maintain, alter, insert oneself in or resist colonial rule.

Prisons of Rubble and Paper in Colonial Saint-Domingue and Beyond (Laurie Wood)

Ample scholarship from Foucault onward has probed the origins of prisons as a key technology for modern state control, but overemphasizes the revolutionary era as a moment of invention. The prison existed much earlier and, as this research demonstrates, gradually became a favored tool among many widely-utilized alternatives. Other historians have explored early modern strategies such as exile, used most often to punish recalcitrant subjects when other strategies did not work. This evidence points to a general pattern whereby these forms of control coexisted and even overlapped in an array of punitive options. I theorize coercive strategies as existing together within a “punitive matrix,” in which imprisonment operated as one among many methods of state control, alongside others such as galley labor, banishment, and corporal punishment. Beginning with evidence from Saint-Domingue in the first half of the eighteenth century about prisons, building out from Jean Clavier’s Léogane in the 1740s. It then turns to the archival sources themselves to understand how colonial administrators described prisons. Read together, this evidence highlights the limited power of prisons, and imprisonment, to control imperial subjects, while elucidating some of the pathways chosen by those subjects.

Making Maritime Boundaries in the Bay of Bengal (Kalyani Ramnath)

This essay explores the making of maritime boundaries in the Bay of Bengal in the northern Indian Ocean, emphasizing the role of visualizations in establishing states' jurisdictional claims to unstable coasts and ephemeral islands. These include colonial-era revenue surveys of the Sunderbans, sketches of land formation in the Godavari delta appended to case papers in litigations, nautical charts and inspection reports of the seabed in the Gulf of Mannar, maps drawn at the time of partitioning the subcontinent in South Asia and satellite imagery of the Bay's littoral. These visualizations are the everyday materials that delineate sea space in law, as judges, lawyers and states navigate fluidity and fixity, accuracy and equity in international law.

FORUM: HOLLY BREWER'S "CREATING A COMMON LAW OF SLAVERY FOR ENGLAND AND ITS EMPIRE"

Forum: Holly Brewer's “Creating a Common Law of Slavery for England and its New World Empire”—Introduction (Gautham Rao)

Historians have long since agreed that slavery was central to the social, economic, and political life of the English-speaking North American colonies, and then early United States. Yet the origins of North American slavery have remained far less clear. Holly Brewer's article, “Creating a Common Law of Slavery for England and its New World Empire,” which appeared in a recent issue of Law and History Review, attempted to clarify one key question within this puzzle. Did judges and legislatures in the colonies create their own institution of slavery? Or did they borrow from English precedent? For Brewer, the answer is clear: seventeenth and eighteenth century English judges, merchants, and others, in tandem with “crown policy,” built the institution of slavery that would be “a foundation for a common law of slavery in all English colonies and for the slave trade.” Slavery, in other words, was legal in England before the Somerset decision. It would thus be legal in the British Empire.

Slavery, Law, and Race in England and its New World Empire (Dana Y. Rabin) / OPEN ACCESS

This paper responds to Holly Brewer's article “Creating a Common Law of Slavery for England and its New World Empire.” Brewer traces a process begun by Charles I, in collaboration with his appointed judges, to legalize the buying and selling of people in England and its Empire. Brewer's work is a much-needed reconstruction of the legal precedents that transformed people into chattel, enabling the business of slavery in the seventeenth and eighteenth centuries. Yet race does not receive any engagement as a category of analysis. Missing is an account of the historical processes whereby laws about slavery contributed to racial formation. Although the global expansion of the British Empire coincided with a new emphasis on rule of law and equality before the law, bound labor and persistent questions of race, gender, status, age, nation, and boundary called attention to the contradictions embodied in Enlightenment thought and its proclaimed universal values.

Beyond Somerset?: Slavery and the Temporality of Law (Asheesh Kapur Siddique) / OPEN ACCESS

This is an invited comment on Holly Brewer's LHR article, “Creating a Common Law of Slavery for England and its New World Empire.”

More information can be found here.