Ford and Hinchy in Legal Histories of Empire Symposium

[We have the following announcement.  DRE}

Legal Histories of Empire: Second Symposium

Join us for the second of several symposia planned for 2020 and 2021 for Legal Histories of Empire.

Our speakers:

Lisa Ford: 'The King's Colonial Peace: Variable subjecthood and the transformation of empire'

This paper is drawn from my forthcoming book, The King's Peace: Empire and Order in the British Empire. The book uses colonial peacekeeping as a lens through which to examine the shifting parameters of crown prerogative in Empire in the Age of Revolutions. This paper will argue that the legal vulnerability of (and often threats to order posed by) a diverse array of subjects - formerly French Catholics in Quebec, Caribbean slaves and NSW convicts - both prompted and justified the unravelling of the very idea of the freeborn Englishman that had been mobilised by protestant Britons in pre-revolutionary America.

Lisa Ford is Professor of History at the University of New South Wales, Australia. Her major publications include Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (2010) which won the Littleton-Griswold Prize (American Historical Association); the Thomas J. Wilson Prize (Harvard University Press); and the Premiers History Award (NSW). She is also co-author of Rage for Order: The British Empire and the Origins of International Law, 1800-1850 (co-authored with Lauren Benton, 2016) and author of The King’s Peace, which will be published by Harvard later this year. Ford is currently leading a collaborative project funded by the Australian Research Council exploring the role of commissions of inquiry sent throughout the British Empire in the 1820s on which subject she hopes to lead author a book manuscript this year. She also holds a four-year ARC Future Fellowship, during which she will explore the changing use of martial law in the British Empire from the late eighteenth century until 1865.

Jessica Hinchy: 'Child Removal and the Colonial Governance of the Family: Hijra and "Criminal Tribe" Households in North India, c. 1865-1900'

Historians have primarily examined colonial child removal projects in settler colonial contexts. Yet from 1865, the colonial government in north India forcibly removed children from criminalised communities. Child separation began in the households of gender non-conforming people labelled ‘eunuchs,’ particularly Hijras, and eventually extended to socially marginalised people designated as ‘criminal tribes,’ especially Sansiyas. First, what does a comparison of these child removal schemes tell us about the colonial governance of the family? Patrilineal, conjugal and reproductive household models marginalised Hijras and Sansiyas in differing ways, while the category of ‘child’ was contingently defined. Child separation was attempted to varying ends, including both elimination and assimilation. Yet often, the colonial state could not sustain such intensified forms of intimate governance in the face of resistance from households. Nor could officials simply determine removed children’s futures. Second, what does child removal suggest about the making of colonial law? When children were initially removed from Hijra and Sansiya households, officials admitted that ‘the law may have been somewhat strained,’ since existing laws did not provide police or magistrates with legal powers to separate these children. The Sansiya child removal project, for instance, prompted debates about colonial legal exceptions and the ‘legality’ of the colonial state’s practices among colonial officials and Indian and European non-officials.

Jessica Hinchy is an Assistant Professor of History at Nanyang Technological University in Singapore. She researches the history of gender, sexuality, households and family in colonial north India. In 2019, Cambridge University Press published her first monograph, Governing Gender and Sexuality in Colonial India: The Hijra, c. 1850-1900. Her research has also appeared in Modern Asian Studies, Gender & History and Asian Studies Review, among other journals.

The event will take place by zoom on Friday 5 March (or Thursday 4 March, depending on your timezone - see below). Please register here (via Eventbrite) to attend.

Timezones:
Sydney @ 12.30 pm on 5 March
Singapore @ 9.30 am on 5 March
Auckland @ 2.30 pm on 5 March
New Delhi @ 7.00 am on 5 March
London/Dublin @ 1.30 am on 5 March
Nairobi @ 4.30 am on 5 March
Vancouver @ 5.30 pm on 4 March
New Haven/Toronto @ 8.30 pm on 4 March

A Blurb for Bartie's "Free Hands and MInds"

Some time ago, we posted a notice of Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars.  At the time, we had no endorsement to post with it.  We have one now:

Free Hands and Minds is centered in absolutely first rate, short-form—longer than an article and shorter than a book—intellectual biographies of three Australian legal scholars, each active at the time when Australian law teaching was professionalizing years after World War II.  Peter Brett who took a Harvard JSD under Henry Hart centered his work  on Criminal Law; Alice Erh-Soon Tay, first on comparisons with and between the Marxist legal systems of China and Russia and later on Human rights; and Geoffrey Sawer the law governing Australian federalism seen from the perspective of political and social circumstances at the time of the relevant decisions.  For each, the scholarship is taken seriously, the life is taken seriously and the academic surround is taken seriously, pretty much all at the same time.  No one could ask more from work in this form.

                    --John Henry Schlegel, University at Buffalo School of Law

--Dan Ernst

Weekend Roundup

• In the New Republic: Gabriel Rosenberg and Jan Dutkiewicz on the place where the meat industry meets anti-bestiality laws, past and present.

• Catch this virtual event with Ashley Rubin on her forthcoming book, The Deviant Prison: Philadelphia's Eastern State Penitentiary and the Origins of America's Modern Penal System, 1829-1913: Jan.5 at 6-7pm EST. 

• The Wiener Library for the Study of the Nazi Era and the Holocaust, at the Sourasky Central Library, Tel Aviv University, has put some of its collections online, including prosecutions for distributing the Protocols of the Elders of Zion and the Nazi Justice Collection, which "contains information on the judiciary in Nazi Germany and hundreds of trial transcripts."  H/t: JQB
  

• “The new feature documentary, My Native Air: Charles Evans Hughes and the Adirondacks, co-produced by MDT Publishing and Snarky Aardvark Films, is premiering on-demand in a limited run from January 15th to February 15th, 2021.”  H/t: JQB
  

• Brittany Nichole Adams, Special Collections, Digitization, and Archival Services Librarian, Northwestern University is profiled in the Bright Young Librarians series at FineBooks and Collections.
  

• From the Washington Post's "Made by History" section: Anya Jabour (University of Montana) on why "Referring to female PhDs as ‘Dr.’ promotes equal treatment and values women’s work," including a discussion of trailblazing law reformers (and PhD holders) Sophonisba Breckenridge and Edith Abbott.

• ICYMI:  University of Mississippi fires Garrett Felber, a tenure-track assistant professor in the Arch Dalrymple III Department of History, who has studied the American carceral state. (Mississippi Free Press).  Greg Melleuish on Constitutional History in Australia (Telos Press Podcast).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

ANZLS Program Now Available

Courtoom Scene, Sydney, 1817 (wiki)

The program for the 39th Annual Conference of the Australian and New Zealand Law and History Society, “an intensive 1 day world-wide gathering devoted to law in history” on December 9, is now available here.  The keynote plenary sessions are Joshua Getzler, Oxford University, on “Six Nations of the Grand River, military feudalism, and the roots of ‘honour of the Crown’”; Miranda Johnson, Otago University, on “Reckoning with a Pacific empire state: Race, nation, citizenship and the idea of New Zealand”; and a closing address by Dame Sian Elias, former Chief Justice of New Zealand.

--Dan Ernst

ANZLHS 2020

 [We have the following announcement.  DRE]

39th Annual Conference of the Australian and New Zealand Law and History Society

Join us for an intensive 1 day world-wide gathering devoted to law in history on 9 December 2020, hosted by Event Services at the University of Auckland, Aotearoa New Zealand

Keynote plenary sessions will feature:

Joshua Getzler, Oxford University, on "Six Nations of the Grand River, military feudalism, and the roots of 'honour of the Crown'"

Miranda Johnson, Otago University, on "Reckoning with a Pacific empire state: Race, nation, citizenship and the idea of New Zealand"

A Closing Address by Dame Sian Elias, former Chief Justice of New Zealand

The organisers have accepted 39 individual papers and 7 panel presentations. They will be run in four concurrent parallel sessions throughout the day. The programme will be uploaded to the ANZLHS website page shortly.

The timings will be specified according to the NZDT time zone - which is UTC+13. We have attempted to time presentations so that are as reasonable as possible for the presenters (but will be difficult for some). The conference will begin at 9.00am and conclude at 7.00pm NZDT.

To cover Event Services charges, and to ensure a high quality of digital platform delivery utilising Zoom, Vimeo and Twilio, we are asking all attendees to pay a modest registration fee. In addition, the rules of the ANZLHS require all presenters to pay the Society's 2020 annual subscription. So 'full member registration' applies to presenters who have paid the 2020 Society subscription in advance; 'full non-member registration' applies to presenters (some of whom will have been members in the past) who have not yet paid the 2020 Society subscription. We are waiving registration fees for postgraduate student presenters. The portal for registrations will be launched shortly through the website page. The cost for registration is as follows in $NZ:

Full member registration: $130; Full non-member registration: $ 215; Full-time post graduate presenters: Fee waiver; Attendance only registration: $130

Graduate students are invited to apply for Kercher Scholarships. Five scholarship awards will be made that may adorn your cv even though there is no monetary element to the scholarship this year. Please apply to Katherine Sanders: k.sanders@auckland.ac.nz by 20 November if you have not already applied. Graduate attendees may also wish to enter their paper for the Forbes Society Prize. The Society's peer-reviewed journal law&history will consider submissions from those who present papers at the conference. In the meantime further information about the conference may be gleaned from David Williams: dv.williams@auckland.ac.nz

Gerangelos on Dixon, J., and Australian Nationhood

Peter Gerangelos, University of Sydney Law School, has posted Sir Owen Dixon and the Concept of 'Nationhood' as a Source of Commonwealth Power, which appears in Sir Owen Dixon's Legacy (Federation Press, 2019): 56-79:

Owen Dixon (wiki)

The principal focus of this chapter is to trace from the reasoning of Dixon J, and those whom he influenced, the High Court’s evolving jurisprudence with respect to the concept of “nationhood” as a source of power. A central thesis of this chapter is that it is questionable whether the reasoning of Dixon J in the Cold War Era cases (Sharkey, Burns v Ransley, Communisty Party Case, and the Pharmaceutical Benefits Case) as well as the reasoning in subsequent pivotal executive power cases in the High Court such as AAP and Davis, support the development of an inherent executive “nationhood” power in s 61 of the Constitution. The chapter examines the extent to which the influence of Dixon J, together with the nature of the very issues considered in these cases, come together to influence the outcome of what is often regarded as the most seminal case on executive power in recent years: Pape v Commissioner of Taxation. 

--Dan Ernst

McIntyre and Milne on "Alien" Power in Australia

 Joe McIntyre and Sue Milne, University of South Australia School of Law, have posted The Alien and the Constitution: The Legal History of the ‘Alien’ Power of the Australian Commonwealth:

The identity of a body politic is inevitably intertwined with that of the excluded other. The quintessential political ‘other’ is the ‘alien’. The express constitutional power to regulate ‘naturalisation and aliens’ in s51(xix) has come to be seen as the hook upon which to hang the Commonwealth’s power to regulate Australian nationality and citizenship. Given the Australian colonies were obsessed with exclusions, and the Commonwealth’s roll-out of the White Australia policy as one of its first legislative priorities on immigration, this connexion between alienage and immigration (and thus eventually citizenship) appears inevitable. It is, however, historically wrong. This article argues that the scope and purpose of the ‘aliens power’ has been miscast, and that as a matter of history its true analogue was the races power, not immigration. The power was designed to regulate the domestic disabilities of aliens (and the removal of those disabilities through naturalisation), just as the races power regulates the disabilities of particular classes of persons. Moreover, and contrary to subsequent jurisprudence, the meaning of ‘alien’ at Federation was clear and unambiguous. This article unpicks the history records to understand this purpose and meaning at Federation in a way that challenges our contemporary understanding of Australian identity.

--Dan Ernst

Josev on Australian Histories in Court

An advance copy of Australian Histories and Historiography in the Courtroom, Melbourne University Law Review 43 (2020), by Tanya Josev, a Senior Lecturer and the Co-Director of the Australian Legal Histories Programme, Melbourne Law School, is now available.

This article examines the fascinating, yet often controversial, use of historians’ work and research in the courtroom. In recent times, there has been what might be described as a healthy scepticism from some Australian lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. This article examines some of the similarities and differences in those disciplinary practices in the context of the courts’ engagement with both historians (as expert witnesses) and historiography (as works capable of citation in support of historical facts). The article begins by examining, on a statistical basis, the recent judicial treatment of historians as expert witnesses in the federal courts. It then moves to an examination of the High Court’s treatment of general works of Australian history in aid of the Court making observations about the past. The article argues that the judicial citation of historical works has taken on heightened significance in the post-Mabo and ‘history wars’ eras. It concludes that lasting changes to public and political discourse in Australia in the last 30 years — namely, the effect of the political stratagems that form the ‘culture wars’ — have arguably led to the citation of generalist Australian historiography being stymied in the apex court.

--Dan Ernst

CFP: ANZLHS 2020 (Revised)

 [We are moving up this call for papers, which has just been revised--see italicize words--in light of recent quarantine breaches in New Zealand that the organizers fear have significantly lessened the likelihood of a face-to-face conference in Auckland in December. DRE]

“One Empire, Many Colonies, Similar or Different Histories?”

39th Annual Conference of the Australian and New Zealand Law and History Society, Auckland, 9th-12th December 2020

Abstracts are invited from scholars bringing historical perspective on law who wish to gather at The University of Auckland and AUT University - there to listen to and discuss papers and panels on aspects of law in history.  Well, that was the original plan, but since the impact of COVID-19, travel restrictions and university funding deficits, we now also seek expressions of interest from those who may wish to present a paper to a dual format conference or virtual-only conference if either possibility turns out to be feasible.

The 2020 theme invites a comparative lens on British imperial and colonial histories. Other papers with an historical perspective on law might include work that positions law in a specific temporal frame; deals with histories of law, lawmaking, and legal ideas; or has a focus on legal institutions and their personnel. Proposals from postgraduate and early career researchers are welcome.

Individual paper proposals for a 20 minute presentation must include an abstract (no more than 300 words) and a biographical statement (no more than 100 words).  Panel proposals by 3 or 4 speakers should include the above, plus a panel title and brief rationale for the panel as a whole (no more than 300 words).  All abstracts must be submitted to Karen Fairweather: k.fairweather@auckland.ac.nz by 31 July 2020.

The Organising Committee intends to notify all those whose abstracts have been accepted for the programme by the end of August 2020. All presenters must be current financial members of the Australian and New Zealand Law and History Society, or must pay a subscription for the 2020 year.

Graduate students are invited to apply for Kercher Scholarships to assist them in attending the conference. Please apply to Katherine Sanders: k.sanders@auckland.ac.nz by 31 August. Graduate attendees may also wish to enter for the Forbes Society Prize.

The Society's peer-reviewed journal law&history will consider submissions from those who present papers at the conference. A conference website with information on registration costs, accommodation options, etc will be established in due course. Our keynote speakers will include Dame Sian Elias (Retired NZ Chief Justice), Joshua Getzler (Oxford) and Miranda Johnson (Sydney, but soon to be at Otago).

Further information about the conference may be gleaned from David Williams: dv.williams@auckland.ac.nz or from [here].

Weekend Roundup

• Floyd Abrams reviews Wendell Bird’s The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act” over at First Amendment News.

• The Federal Judicial Center has arranged its collection of its Notable Federal Trials series in this nifty timeline.  

• Bound By Every Tie of Duty: John Lewes Pedder, Chief Justice of Van Diemen’s Land, by Jacqueline Fox (Australian Scholarly Publishing Pty Ltd), has made the short list for the Dick and Joan Green Family Award for Tasmanian History.

Robert A. Taft (LC)

• We felt late to the party when we saw how many legal historians had done Brian Frye's Ipse Dixit podcast.  We aren't scanning all 556 episodes but can report they include Christopher Tomlins, Nicholas Bagley and Julian Davis Mortenson  Alejandro de la Fuente and Ariela Gross, Thomas McSweeney, Elizabeth Katz, Taja-Nia Henderson and Lutie A. Lytle, Jilll Hasday, Seth Barrett Tillman, and Justin Simaud. Also, from February 1947, Robert A. Taft calls for "curbs on the power of the executive branch of the government"!!

• Sure, you're on lock down, but that doesn't mean you can't (virtually) browse the George Wythe Room at the Wolf Law Library at William & Mary.  H/t: Tom McSweeney.

• The sixth edition of Borkowski's Textbook on Roman Law, by Paul J. du Plessis, is now available.

• A more accessible version of John Fabian Witt's lecture on the legal history of infectious diseases is here.

• Over at the Legal History Miscellany: Can you steal a peacock? A post by Krista J. Kesselring on animals in early modern law.

• The Hoover-Roosevelt Transition premiers on the Facebook page of the FDR Library on Wednesday, May 13.  FDR Library Director Paul Sparrow and Hoover Library Director Thomas Schwartz discuss the relationship between FDR and HH “during the 1932 campaign and the transition between their presidencies, examining their different philosophies in the role of government and the protection of individual liberty and freedom. Followed by a Q&A in the comments.

• The Tagore Law Lectures (1870-1986) are now available here on the University of Calcutta Digital Library.

• And also on South Asia: check out this Twitter thread by Kalyani Ramnath (@kalramnath) on epidemics, contagion, migration, and law.

• ICYMI: Mary Ziegler interviewed on Abortion and the Law in America in Mother Jones and on WORT.  WaPo's obituary of Barbara Babcock. 

• I was very sorry to learn of the death of John M. Murrin, from whom (and Douglas Greenberg) I took a marvelous reading course on early America while a graduate student at Princeton.  Vast knowledge, zero pretension, kind, and witty (especially if you went in for atrocious puns).  His essays include a landmark study of the colonial legal profession and the brilliant "A Roof without Walls: The Dilemma of American National Identity."  They are collected in Rethinking America: From Empire to Republic, ed. Andrew Shankman (Oxford University Press, 2018), reviewed here.  John Fea's remembrance is here. H/t: Al Brophy. DRE

    Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Kelly on Militarized Medicine and Corporate Punishment in Australia

Catherine Kelly, University of Bristol, has posted Medicine, Law, and the Lash: Militarized Medicine and Corporal Punishment in the Australian Colonies 1788–1850, which is forthcoming in Legal History:

The service of medical practitioners in the early Australian colonies was inextricably bound up with a heavily militarized culture. This article explores the relationships between those medical practitioners, legal punishment, and the British Empire in the first half of the nineteenth century. The service of medical practitioners in the Australian colonies, coming as it did so close on the heels of two generations of war, gives us an important insight into the effects of the Napoleonic wars both upon the practice of medicine in the service of the British State, and also the State’s attitude to the use of medical expertise. In the military spaces of transport and colony, the medical officer became an important lynch pin in the discipline and control exercised over convict bodies. Military medical expertise was useful to the State in understanding the best ways to discomfort and hurt convicts, without quite killing them. This expertise was further cultivated by the State in the ongoing design of the medical role in the colonies that came to hark forward to the prison officer of the later nineteenth century whose position, balanced precariously between punishment and care, has been of such interest to penologists and medical historians.

–Dan Ernst

Patrick on fortune-telling

Out now by Jeremy Patrick (University of Southern Queensland) is Faith or Fraud: Fortune-Telling, Spirituality, and the Law, published by UBC Press. The book includes a history of the regulation of fortune-telling across the common law world. From the publisher: 

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. If a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Should someone with a potpourri of New Age beliefs be accorded the same legal protection as a devout Catholic?

Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom have been conceived and articulated in the context of monotheistic, organized religions that impose moral constraints on adherents. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems.

Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that the legal conception of religious freedom has not evolved to keep pace with religion itself.

Law and religion scholars in the United States, Canada, and Australia will find much to recommend this work, which also contains valuable material for British law and religion specialists and sociologists of religion.

Praise for the book:

 "Faith or Fraud is an ambitious work that fills a major gap in the literature about religious freedom and fortune-telling." -Danielle N. Boaz

"This book situates 'fortune-telling' as an unorthodox religious belief at the margins of current definitions and explores how religious freedom rights apply to this marginal practice. It is an excellent piece of legal scholarship in an area that has rarely been studied before." -Neil Foster

Further information is available here.

--Mitra Sharafi

Aroney on Australian Federalism

Nicholas Aroney, University of Queensland TC Beirne School of Law, has posted The Design of Australian Federalism, from The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone:

This chapter, published in The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018), edited by Cheryl Saunders and Adrienne Stone, examines the design of Australia's federal system. Two historical propositions affirmed in the preamble to the constitution are central to this idea. These are, firstly, that the constitution was predicated on an agreement between the people of the Australian colonies and, secondly, that the intention was to unite the colonies into an indissoluble federal commonwealth. The Australian constitution does not rest upon the consent of an already consolidated people; nor does it create a unitary state. It is the result of an agreement among several mutually independent political communities and it establishes a federal system of government that preserves their continuing existence as self-governing polities. This chapter explains how these central ideas are embodied in the distribution of powers, system of representation, and processes of alteration and amendment established by the constitution.

--Dan Ernst

Weekend Roundup

• Congratulations to my fellow Legal History Blogger Karen Tani upon being named the
  University of Pennsylvania’s 24th Penn Integrates Knowledge University Professor, effective July 1.  DRE

• TOC for Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 87:3 (December 2019).

• New from Law and History Review and Cambridge Core: Speaking the Unspeakable: Buggery, Law, and Community Surveillance in New South Wales, 1788–1838 by Luke Taylor.

• On April 3, the University of Colorado Law School’s Byron R. White Center for the Study of American Constitutional Law hosts its 2020 Ira C. Rothgerber Jr. Conference on Constitutional Law on "Women’s Enfranchisement: Beyond the 19th Amendment," with three panels and a keynote by Reva Siegel.  More.

• The Supreme Court Historical Society has added a 3rd webcast to its site, a discussion with author David Bruce Smith on his children's book, American Hero - John Marshall, Chief Justice of the United States.  More.

• ICYMI: Slavery in East Brunswick, NJ.  Stanford Law’s Rabia Belt on caucus voting and democracy.  Andrea Dennis on Mass Surveillance and Black Legal History.  "Lincoln collector and scholar Guy Fraker” donates a pleading written by Abraham Lincoln to the  McLean County Museum of History.

• Update: Paul J. du Plessis delivered the Alan Watson Memorial Lectures 2020, entitled The Civil Law in Three Acts, at the School of Law, Edinburgh University.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• The conference Critical Legal Studies: Intellectual History and the history of the present, will be held at Princeton University, on February 27-28, 2020.  “Prompted by plans to create a Critical Legal Studies Archive at the Princeton University Mudd Library, the conference will bring together those who participated in CLS in its heyday; key figures from contemporaneous movements in the US and abroad; and people interested today in this history and its contemporary significance.”  The conference is free and open to the public and sponsored by Princeton's Program in Law and Public Affairs.

• Over at Lawfare: Matthew Waxman, Columbia Law, on The Mexican-American War and Constitutional War Powers.

• Kellen Funk, Columbia Law, has Twitter-reviewed Mortenson and Bagley's Nondelegation at the Founding.

• At The Historical Society of the New York State Courts: A biographical sketch of Harold Arnoldus Stevens.  Also, a YouTube video in which member of the Society's Board of Trustees discusses "how we have tragically lost details of historic NY events of national importance."
  

• ICYMI: Exploring the history of Underground Railroad, in the Youngstown Vindicator.  Brooklyn’s courts celebrate Black History Month, in the Brooklyn Daily Eagle.  One barrister's love for the horse hair wig, courtesy of the ABC and Law Fuel.   Law in frontier Oregon, in the Redmond Spokesman.  Better late than never: The NYT obituary of Homer Plessy.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

O’Donnell's "Inventing Unemployment"

Anthony O’Donnell, Senior Lecturer in Law, La Trobe University, Melbourne, has published Inventing Unemployment: Regulating Joblessness in Twentieth-Century Australia (Hart):

This book examines the evolution of Australian unemployment law and policy across the past 100 years. It poses the question 'How does unemployment happen?'. But it poses it in a particular way. How do we regulate work relationships, gather statistics, and administer a social welfare system so as to produce something we call 'unemployment'? And how has that changed over time?

Attempts to sort workers into discrete categories – the 'employed', the 'unemployed', those 'not in the labour force' – are fraught, and do not always easily correspond with people's working lives. Across the first decades of the twentieth century, trade unionists, statisticians and advocates of social insurance in Australia as well as Britain grappled with the problem of which forms of joblessness should be classified as 'unemployment' and which should not. This book traces those debates. It also chronicles the emergence and consolidation of a specific idea of unemployment in Australia after the Second World War. It then charts the eventual unravelling of that idea, and relates that unravelling to the changing ways of ordering employment relationships.

In doing so, Inventing Unemployment challenges the preconception that casual work, self-employment, and the 'gig economy' are recent phenomena. Those forms of work confounded earlier attempts to define 'unemployment' and are again unsettling our contemporary understandings of joblessness. This thought-provoking book shows that the category of 'unemployment', rather than being a taken-for-granted economic variable, has its own history, and that history is intimately related to our changing understandings of 'employment'.

–Dan Ernst

Boyd, Ramsay and Ali on Imprisonment for Debt in Colonial Victoria

Jodie Boyd, RMIT University, and Ian Ramsay and Paul Ali, Melbourne Law School, have posted "Contrary to the Spirit of the Age": Imprisonment for Debt in Colonial Victoria, 1857–90, which appears in the Melbourne University Law Review 42 (2019): 737-779:

The reintroduction in 1857 of imprisonment for debt in colonial Victoria flew in the face of international momentum for its abolition. In its criminalisation of debt and poverty, the Fellows Act 1857 (Vic) (21 Vict, No 29) also defied the rapid advancement of democratic and egalitarian principles in the fledgling colony. Frequently referred to as ‘gross class legislation’, the law was used unabashedly to target poor small debtors, leaving ‘mercantile men’ with significant debt untroubled by the prospect of a debtors’ gaol. Despite consistent and broad opposition to the Fellows Act, its advocates resisted repeated attempts to abolish or meaningfully amend it. It is argued here that the law, and its survival against the ‘spirit of the age’, can be understood as part of a broader story of conservative resistance to the democratic innovations that threatened the power of the Victorian mercantilist establishment.

--Dan Ernst

Rubenstein and Henderson on Woman Citizenship in Australian Archives

Kim Rubenstein and Andrew Henderson, Australian National University, have posted Record and Recollection: Women’s Active Citizenship and National Archives, which appears in Law & History 6 (2019): 98-124:

Postmodern theories of the development of archival collections argue that archives created and administered under executive power often exclude voices and accounts outside the mainstream. These critiques are generally directed towards the absence of life experiences outside the purview of the central activities of the state. However, there is little empirical testing of how women’s active contributions within the concerns of government activity are recorded. This article tracks two events, recorded in the oral histories of two women lawyers collected as part of the Trailblazing Women and the Law Project, through the records of the National Archives of Australia (NAA). Its purpose is to start investigating how well these women, who have been active citizens, are ‘recorded’ in the formal national memory. It highlights the importance of undertaking further research to determine how well the NAA, as a state-run archive, represents women’s active citizenship in its telling of Australian legal history.

--Dan Ernst

Pitt Cobbett's "Constitution and Government of Australia"

We’ve recently learned of the publication of William Pitt Cobbett's The Constitution and Government of Australia, 1788-1919 (Federation Press, 2019), edited by Anne Twomey, Professor of Constitutional Law, University of Sydney.

Between 1910 and 1919, William Pitt Cobbett, former Professor of Law and Dean of the Sydney Law School, wrote what would become his great opus on the Constitution and Government of Australia but the manuscript was never published. Its publication had been frustrated in the period following his death by the High Court’s judgment in the Engineers Case in 1920 and the new constitutional order it created. A century later, Professor Anne Twomey, has edited Cobbett’s original manuscript, taking care to preserve the integrity of his work.

The Federation Press, with the support of the Francis Forbes Society for Australian Legal History, published this important historical work which provides a detailed perspective of how the Constitution operated in the first two decades after federation.

The editor writes us:

[The book] has a bit of history of its own.  Pitt Cobbett became the first full-time Dean of Sydney Law School in 1890.  He was Dean throughout the period of the drafting of the Australian Constitution, campaigned against its approval by the people in referendums, and studied its interpretation by the first High Court, which was comprised of judges who had participated in framing the Constitution.  Cobbett retired in 1910 and spent the last nine years of his life writing his grand opus on the Constitution and Government of Australia.  It was the culmination of his life's work and he desperately wanted it published, but died just as he was completing the full draft.  He passed away on the last day of the Griffith High Court.  The following year, the Court, under Chief Justice Knox, fundamentally changed the way the Constitution was interpreted, treating it as a legal document, rather than a political compact.  The executors of Cobbett's will decided his manuscript could no longer be published without major alterations, and donated it to the University of Sydney.  There it sat, neglected, for a century.

Today it is an important historical record of how the Australian Constitution was viewed by those who wrote it and interpreted it during its first two decades.  It has now been edited and published for the first time, upon the centenary of Pitt Cobbett's death.  There is some irony in this.  Cobbett was also renowned for having no time for women and excluding them from studying law while Dean of the Law School.  So he would have been shocked and possibly horrified to know that it was two women who cared enough about his manuscript to edit it, complete all his footnotes, place it in its context and publish it upon the centenary of is death.  But hopefully, he would also have been grateful.

An endorsement:

William Pitt Cobbett largely completed the original manuscript of his opus on the Constitution shortly before his death in 1919. While it was intended to be posthumously published, in 1920 the High Court’s constitutional jurisprudence radically shifted in the Engineers case ((1920) 28 CLR 129). At the time, this would have required a substantial revision for the work to remain current, and so the manuscript was given to the University of Sydney Law School – of which he had been a Professor and Dean – as a memorial. Now a century on, the manuscript has been carefully and ably transcribed, edited and published for the first time.

Those involved are to be greatly thanked. In addition to the text, there is a fascinating biographical note by Professor Anne Twomey and a comprehensive introduction to Cobbett’s work outlining what has changed since it was written, what remains the same and his unique insights relevant to today. While the importance of the work is that it paints a portrait of the history and early interpretation of the Constitution up to 1919 before the High Court’s decision in Engineers, its value is not merely one of historical interest. As Twomey perhaps understates, “it occasionally also shocks with the modernity and prescience of its contents”. This is a most important, if not necessary, text for any scholar of Australian legal history and constitutional law.

                         Queensland Law Reporter – 18 October 2019 – [2019] 41 QLR 7

Table of contents after the jump

–Dan Ernst

Bartie's "Free Hands and Minds"

Just out from Hart is Free Hands and Minds: Pioneering Australian Legal Scholars, by Susan Bartie,  Lecturer in Law at the University of Tasmania:

Peter Brett (1918–1975), Alice Erh-Soon Tay (1934–2004) and Geoffrey Sawer (1910–1996) are key, yet largely overlooked, members of Australia's first community of legal scholars. This book is a critical study of how their ideas and endeavours contributed to Australia's discipline of law and the first Australian legal theories. It examines how three marginal figures – a Jewish man (Brett), a Chinese woman (Tay), and a war orphan (Sawer) – rose to prominence during a transformative period for Australian legal education and scholarship.

Drawing on in-depth interviews with former colleagues and students, extensive archival research, and an appraisal of their contributions to scholarship and teaching, this book explores the three professors' international networks and broader social and historical milieux. Their pivotal leadership roles in law departments at the University of Melbourne, University of Sydney, and the Australian National University are also critically assessed.

Ranging from local experiences and the concerns of a nascent Australian legal academy to the complex transnational phenomena of legal scholarship and theory, Free Hands and Minds makes a compelling case for contextualising law and legal culture within society. At a time of renewed crisis in legal education and research in the common law world, it also offers a vivid, nuanced and critical account of the enduring liberal foundations of Australia's discipline of law.

The very interesting TOC is here.

–Dan Ernst