29 December 2021

JOURNAL: The American Journal of Legal History LXI (2021), nr. 2


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Revolutionary Criminal Punishments: Treason, Mercy, and the American Revolution (Mugambi Jouet)
DOI 10.1093/ajlh/njab001
This article focuses on the exceptional mildness of criminal punishments for alleged traitors in the wake of the American Revolution. American leaders were disinclined to inflict the death penalty on loyalists who supported British rule in the revolutionary war or on insurgents in the Shays, Whiskey, and Fries rebellions shortly after independence. In fact, the Founding Fathers and other first-generation officials commonly showed remarkable mercy. Numerous “traitors” readily rehabilitated themselves by recognizing their faults, swearing an oath of allegiance to the new American republic, and promising to refrain from further wrongdoing. These revolutionary punishments were a striking prefiguration of modern penal practices: guilty pleas, probation sentences, and rehabilitation policies aiming to reintegrate wrongdoers into society. While American revolutionary punishments comprised stark racial inequities and did not constitute a lost utopia, they were particularly mild for the period. In contrast, the contemporary French Revolution led to wide-scale executions of purported traitors. Besides shedding light on historic events that criminal justice scholars have neglected, the article’s findings are relevant to ongoing debates about American exceptionalism and the peculiar harshness of modern American justice, including originalist and non-originalist interpretations of the Eighth Amendment. The rise of mass incarceration in the United States and its retention of the death penalty can foster cultural essentialism about how American culture traditionally lacks humanistic sensibilities. In reality, the revolutionary criminal punishments of the late eighteenth century demonstrate how America was once a trailblazer in embracing humane conceptions of justice.

José María Torres Caicedo and the Politics of International Law in Nineteenth-Century Latin America (Sebastián Mantilla Blanco, LL.M, (Dr. iur.))
DOI 10.1093/ajlh/njab005

The mid-nineteenth century was the formative period of doctrines that dominated international law debates in Latin America until well into the twentieth century. José María Torres Caicedo (1830–89) is one of the least-known international law scholars from those years. Torres Caicedo’s vast experience as a diplomat provided him with a sharp political instinct, which nurtured his academic work about international legal affairs. A look into his writings exposes the politics behind present-day principles, such as sovereign equality and non-intervention. It also reveals the stance of Latin American intellectuals with regard to the Eurocentric notion of the ‘civilized State’. In the field of the law of aliens, Torres was a major influence in the development of the Calvo Doctrine. His contributions to international law are all the more relevant, as historians place Torres as one of the first authors designating Central and South America as ‘Latin America’. This term was closely intertwined with Torres Caicedo’s views on foreign policy and international law. 

Internment of Enemy Aliens during the World Wars (Manuel Galvis Martínez)
DOI 10.1093/ajlh/njab006

The article offers a historical approach to one of the most understudied areas of international humanitarian law by focusing on the successes and shortfalls of the two international armed conflicts with the highest numbers of civilians interned in global history. Through the study of State practice during Word War I and Word War II, the author addresses the causes and justifications that led to massive internment of enemy aliens, the practical determination of the need of those measures, and the role of ethnicity for internment. Lessons drawn from those experiences not only clarify and humanize abstract legal provisions of the 1949 Geneva Conventions but also warn about harmful deviations from the intended purpose of those norms for future cases.

Religious Minorities under the Constitution of the Irish Free State, 1922–1937 §Thomas Mohr) (OPEN ACCESS)
DOI: 10.1093/ajlh/njab002

The Irish Free State came into existence in 1922 as a self-governing state with a substantial Catholic majority. This article examines the special constitutional provisions adopted in 1922 that were aimed at religious minorities in the new state. The Protestant community comprised the largest religious minority in 1922 and was particularly vulnerable as many of its members had opposed the foundation of the Irish Free State. Nevertheless, this article recognizes the diversity behind the term ‘Protestant’ and also provides some attention to the position of the Quaker community, often perceived in Ireland as neither Catholic or Protestant, as well as that of the small Irish Jewish community. This article examines the origins and operation of the special provisions of the 1922 constitution of the Irish Free State aimed at protecting the rights of religious minorities and giving them a significant voice within the Irish legislature. It also analyses how and why most of these constitutional safeguards were removed from the text of the 1922 constitution. Most of these provisions were not replicated in the 1937 constitution of Ireland that remains in force to this day. The conclusion argues that one of the weaknesses of the constitutional provisions aimed at religious minorities was that they did not openly include this objective in their wording. This facilitated the removal of almost all of these provisions in the 1930s while ignoring or openly denying that they were aimed at religious minorities despite ample historical evidence to the contrary.

Book reviews:

  • Michael Lobban and Ian Williams (eds.), Networks and Connections in Legal History (William Eves)
  • Keila Grinberg, A Black Jurist in a Slave Society: Anotnio Pereira Rebouças and the Trials of Brazilian Citizenship (Bruno Lima)
Erratum to: Radical Histories versus Liberal Histories in Work Injury Law. Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (FREE)

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