Continuing our recap of the prizes awarded at this year's meeting of the American Society for Legal History, we turn now to the Sutherland Article Prize, awarded annually "to the person or persons who wrote the best article on the legal history of Britain and/or the British Empire published in the previous year."
This years co-winners were Holly Brewer (University of Maryland), for “Creating a Common Law of Slavery for England and its New World Empire,” Law and History Review 39, no 4 (November 2021): 765-834, and Elizabeth Papp Kamali (Harvard Law School), for “Tales of the Living Dead: Dealing with Doubt in Medieval English Law," Speculum 96, no. 2 (April 2021): 367-417. The citations:
Holly Brewer’s “Creating a Common Law of Slavery for England and its New World Empire,” is a provocative, ambitious, and deeply researched article, which offers a fundamentally revisionist account of the origins and evolution of the way in which the English common law came to allow human beings to be owned as property. Far from absent at home and merely tolerated abroad, slavery was, Brewer argues, embedded in the English common law for at least a century before the 1772 Somerset decision. Beginning with the efforts of the common law courts under Charles II to support a struggling Royal African Company by contriving a legal fiction by which people could be considered as “things” and thus owned and traded as goods, the article traces the lasting impact of these efforts into the eighteenth century and beyond. Even as later common law judges from John Holt to the Earl of Mansfield attempted to undo the precedent, the damage had been done, having embedded itself through subsequent Parliamentary statute and colonial law across the Atlantic, including in the legal regimes of the new United States. Brewer thus not only locates a place for slavery in the common law—long assumed, not least thanks to Mansfield’s famous ruling, to have resisted it—but inverts our usual understanding of slavery’s path through the law, following it from England into the colonial world rather than vice versa. This process, this article argues, had profound effects, inadvertently producing a “blunt and clumsy instrument” that allowed for both less nuanced and harsher regimes of slavery than developed in other European empires. As if this were not enough, Brewer along the way also offers perspective on a range of other key questions in British legal history, asking readers to reflect on issues such as the role judges play as instruments of policy, how religion and race shape legal argument and precedent, and the need for more complex and multifarious approaches to understanding how the common law itself evolves over time.
Elizabeth Papp Kamali’s “Tales of the Living Dead: Dealing with Doubt in Medieval English Law,” is a remarkably erudite, creative, well-written, and original exploration of how medieval criminal and civil law dealt with the surprisingly complex problem of establishing proof of death in the absence of a body or corpse. Kamali takes what might seem at first glance to be a rather narrow concern and shows how the question raises an impressive range of thorny and profound issues about the nature of evidence and proof in the common and civil law. Kamali shows how this problem reached into a range of corners of the law, from homicide prosecutions to probate, along the way encountering conundrums such as how to deal with another kind of “living dead,” namely convicts who for one reason or another survived the gallows. The work not only engages felony law (criminal context) in common law but also similar quandaries in common law actions on property (private law context), Mort d’Ancestor and dower. Reading beyond the formation of substantive rules and norms, the article reveals rhetorical strategies in the law by mining scattered traces in the archival record, especially those of the Court of King’s Bench, alongside chronicles, ballads, and other “nonlegal” materials. Kamali’s work thus presents both a critical perspective on how medieval lawyers and litigants accommodated the absence of traditional evidence as well as a ready model for the tools and techniques legal historians might deploy when confronted with the very same problem.
Congratulations to Professor Brewer and Professor Kamali, and thank you to the members of the prize committee, chaired by Philip Stern, for their service!
-- Karen Tani
