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Volume 29 - Issue 3 - August 2011

Law and History Review Volume 29 - Issue 3 -
Contents

In This Issue

Articles

  • Imperial Impotence: Treason in 1774 Massachusetts
  • Neil L. York
  • Published online by Cambridge University Press: 21 July 2011, pp. 657-701
  • View extract

    So contended Edmund Burke in the House of Commons, during a May 1770 speech that ridiculed the government's American policy. It was not the first time Burke raised the subject of this 1543 statute. He had asked—rhetorically—during debates two weeks before, “The Act of Henry VIII. Did you mean to execute that?” He then answered his own question, the scorn beneath it probably apparent to all. “You showed your ill will to America, at the same time you dared not execute it.” Burke hoped that by shaming the ministry he might be able to push through a set of resolutions condemning its policies, which could open the way for a new approach to imperial management. He failed, but that did not mean he had been wrong about the futility of threatening to resurrect an old statute to intimidate protesting Americans.

  • “The Terror of their Lives”: Irish Jurors' Experiences
  • Níamh Howlin
  • Published online by Cambridge University Press: 21 July 2011, pp. 703-761
  • View extract

    A commentator noted in 1881 that Irishmen regarded jury service as “the greatest burden that can be inflicted upon them … they would be delighted if trial by jury was suspended tomorrow.” He later added, “[o]f course an enormous outcry would be raised about it in the national press, and in public meetings; but jurors … would give anything in the world not to serve … because it is the terror of their lives.” Much has been written about the poor state of the nineteenth-century Irish jury system, and it is certainly true that for various social, economic and political reasons, in comparison with that in England, the Irish system appears to have operated in a way that fell somewhat short of ideal. This article seeks to provide an understanding of the realities facing the jurors themselves, and will examine their experiences of the justice system before, during, and after the trial.

  • The Antislavery Judge Reconsidered
  • Jeffrey M. Schmitt
  • Published online by Cambridge University Press: 21 July 2011, pp. 797-834
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    It is conventionally believed that neutral legal principles required antislavery judges to uphold proslavery legislation in spite of their moral convictions against slavery. Under this view, an antislavery judge who ruled on proslavery legislation was forced to choose, not between liberty and slavery, but rather between liberty and fidelity to his conception of the judicial role in a system of limited government. Focusing on the proslavery Fugitive Slave Act of 1850, this article challenges the conventional view by arguing that the constitutionality of the fugitive act was ambiguous; meaning that neutral legal principles supported a ruling against the fugitive act as well as a ruling in favor of it, and that prominent antislavery judges were influenced to uphold the act by a belief that doing so was necessary in order to preserve the Union.

  • “All for Keeping His Own Negro Wench”: Birch v. Benton (1858) and the Politics of Slander and Free Speech in Antebellum Missouri
  • Mark M. Carroll
  • Published online by Cambridge University Press: 21 July 2011, pp. 835-897
  • View extract

    In August 1849, outspoken proslavery Missouri Supreme Court Judge James H. Birch sued Unionist Senator Thomas Hart Benton of Missouri for slander because he had publicly accused Birch of having kept “his own negro wench” and whipped his wife because she had dared to complain about it. On first impression, the lurid accusation and resulting lawsuit might seem merely colorful window dressing for the virulent sectional politics of the late antebellum period. Benton's objectionable utterances certainly exemplify the verbal pyrotechnics that, after the Mexican War, often accompanied public debate over the question of whether African-American bondage was to extend across the continental United States. But the vituperation that gave rise to Birch v. Benton, in fact, marked the beginning of one of the most widely-publicized episodes in the struggle pitting the champion of Jacksonian democracy in the trans-Mississippi Southwest against a powerful cadre of proslavery leaders who sought to end his thirty-year career in the United States Senate. According to legal historian Gerald T. Dunne, the politicized nature of the case and its contentious appeal to the Missouri Supreme Court provided the critical catalyst for lawmakers in the state to amend its constitution in 1850 to replace lifetime tenure for judges with periodic voter choice. The landmark constitutional revision both instituted popular election of judges and shook up the composition of the proslavery high court, including the removal of Judge Birch.

Book Reviews

Front Cover (OFC, IFC) and matter

  • LHR volume 29 issue 3 Cover and Front matter
  • Published online by Cambridge University Press: 21 July 2011, pp. f1-f6
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Back Cover (IBC, OBC) and matter

  • LHR volume 29 issue 3 Cover and Back matter
  • Published online by Cambridge University Press: 21 July 2011, pp. b1-b8
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