Samuel's "Principia Iuris"

Geoffrey Samuel, Professor Emeritus, Kent Law School, has published Principia Iuris: A Historical and Comparative Introduction to the English Common Law (Edward Elgar):

This book provides a strong introduction to the principal domains of legal knowledge by examining a structured list of legal maxims, many originating in medieval Roman and canon law. Oriented by historical and methodological approaches, it explores legal thought and reasoning through a comparative lens.

Geoffrey Samuel explains the differences between common law and civil continental traditions, outlining preceding works on regulae iuris across the centuries. With an emphasis on English law, the book analyses basic principles and addresses the law of obligations, the law of actions and the law of property and public law. Delving into fundamental legal remedies, substantive law and legal institutions, Samuel questions whether some maxims are more memorable or indisposable than others and shows the impact they have had on legal theory. Exploring historical developments, the book also maps the original sources of key theories, utilising a civil law taxonomical plan to classify them.

Principia Iuris is an invaluable resource for students and academics in law, legal theory and legal history. Its unique insights into common law mentalities will also greatly benefit legal educators and practising lawyers. 

--Dan Ernst.  H/t: ESCLHblog

Weekend Roundup

• 
  John W. Cairns, professor of Civil Law at the University of Edinburgh, will deliver this year’s Eason-Weinmann Lecture on International and Comparative Law at Tulane Law School on November 20, 2025, at 5 p.m. in the Wendell H. Gauthier Moot Court Room 110.  Professor Cairns’s lecture, "The Civil Code of the State of Louisiana: Context and Contents," will kick off a conference on the bicentennial of the Louisiana Civil Code.  

• Caleb Nelson, UVA Law, asks, Must Administrative Officers Serve at the President’s Pleasure?" and makes an originalist case for why the answer is no.
  

• A notice and recording of Richard Primus's discussion with Noah Feldman of Professor Primus's book, The Oldest Constitutional Question, at HLS on September 25 (Harvard Law Today). 

• UVA Law's notice of G. Edward White's Robert H. Jackson: A Life in Judgment (Oxford University Press). 

• Over at Nursing Clio: David Korostyshevsky on The Strange Case of Henrietta Wiley: A Habitual Drunkard’s Journey Through Guardianship and the Asylum (h/t: HNN).

• "Jamie Raskin (D-MD), former Federal Judge Michael Luttig, and Baltimore University Law Professor Kimberly Wehle discuss the history of the U.S. Constitution at an event hosted by George Washington's Mount Vernon" (C-SPAN).  

• My Georgetown Law colleague John Mikhail lectured on anti-slavery and the Constitution on September 17 as part of Ithaca College’s observance of Constitution Day (Ithacan).  DRE. 

• Last month, Nancy Cott, Harvard University, spoke on “Doctors, Lawyers, and Feminists on the Road to Roe v. Wade" at Vanderbilt Law (Vanderbilt)

• Kurt Lash discusses constitutional debates over slavery before the Civil War (NCC). 

• One of the Drinan Visiting Professors are at the Boston College Law School is Rebecca Horwitz-Willis, a recipient of the Kathryn T. Preyer Award from the American Society of Legal History (BC Law).

• In the series "Made by History" in Time Magazine: Samantha Barbas says that History Explains Why the U.S. Doesn’t Ban Hate Speech.  Bob Crawford on John Qunicy Adams and the "the Gag Rule." 

• 
  
  The Organization of American Historians is sponsoring two webinars on immigration in October.  The first, on denaturalization, will take place at 6pm ET on October 14.  Register here.  The second, on U.S. deportation policies from the Alien Friends Act of 1798 to today, will take place at 6pm ET on October 30.  Register here.  Both webinars are co-sponsored by the Immigration and Ethnic History Society.   

• The October 2025 issue of the newsletter of the Historical Society of the DC Circuit is now available.  

• We ought to have noticed sooner Time Immemorial, the podcast of the Osgoode Hall Society for Canadian Legal History. 

• ICYMI: (Before the government shutdown), visitors to the National Archives react to seeing the entire Constitution (WaPo).  Jillian Foley on America’s Privacy Policy (HNN).  Douglas M. Charles, Penn State, on history repeating itself at the FBI (The Conversation).

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

Hershkoff and Littlestone-Luria on History, Tradition, Standing, and Louisiana Law

Helen Hershkoff and Adam Littlestone-Luria, New York University School of Law, have posted The Louisiana Constitution and the Courts of Westminster: Standing and the Civil Law Heritage, which is forthcoming in the Louisiana Law Review:

A substantial majority of the Roberts Court now purports to rest constitutional jurisprudence on a legal “history and tradition” divined from the nation’s common law heritage. Leaving aside the question whether this approach should carry dispositive weight in interpreting the federal Constitution, this Article raises a different but unacknowledged concern:  The Court’s brand of originalism relies on a cramped notion of the nation’s “usable past.” Its myopic focus on our common law heritage erases other critical threads in the relevant legal legacy. In particular, the Article focuses on the civil law heritage of the Louisiana Constitution. As a first step, we interrogate whether the Louisiana court should automatically interpret its state standing requirement in lock step with the federal. We argue that the Supreme Court’s recent move to limit the kinds of legal harms that count as a basis for Article III standing in terms of common law analogues may cause serious distortion if it is mimicked by Louisiana’s courts. Since the civil tradition and civil codes play such an integral role as the source and definition of private rights and interests, a singular focus on common law analogs may warp the proper “history and tradition” that is relevant to Louisiana law. In conclusion, the article steps beyond the Louisiana context, arguing that the analysis carries wider implications.  Assuming that history and tradition must, or at least may, play a role in legal analysis, lawmakers and judges in each state should recognize the potential inherent in their own distinctive legal legacies. As a final step, we argue that the Supreme Court’s brand of originalism obscures the deep pluralism that marks the nation’s history and tradition—a multiplicity which standing doctrine should respect and even celebrate.

--Dan Ernst

Palmer on the Lost Translators of the Louisiana Civil Code

Vernon Valentine Palmer,  the Thomas Pickles Professor of Law at Tulane University, has published The Lost Translators of 1808 and the Birth of Civil Law in Louisiana (University of Georgia Press).  It appears in the series Southern Legal Studies, edited by Paul Finkelman and Timothy S. Huebner.

In 1808 the legislature of the Louisiana territory appointed two men to translate the Digest of the Laws in Force in the Territory of Orleans (or, as it was called at the time, simply the Code) from the original French into English. Those officials, however, did not reveal who received the commission, and the translators never identified themselves. Indeed, the "translators of 1808" guarded their secret so well that their identities have remained unknown for more than two hundred years. Their names, personalities, careers, and credentials, indeed everything about them, have been a missing chapter in Louisiana legal history.

In this volume, Vernon Valentine Palmer, through painstaking research, uncovers the identity of the translators, presents their life stories, and evaluates their translation in the context of the birth of civil law in Louisiana. One consequence of the translators' previous anonymity has been that the translation itself has never been fully examined before this study. To be sure, the translation has been criticized and specific errors have been pointed out, but Palmer's study is the first general evaluation that considers the translation's goals, the Louisiana context, its merits and demerits, its innovations, failures, and successes. It thus allows us to understand how much and in what ways the translators affected the future course of Louisiana law. The Lost Translators, through painstaking research, uncovers the identity of the translators, presents their life stories, and evaluates their translation in the context of the birth of civil law in Louisiana.

--Dan Ernst                           

More Than a Contract II, Premo with J. Mansilla

In the last blog, we discussed how improvised legal deals made far from notarial offices helped the inhabitants of Lima get back on their feet again after a massive earthquake and tidal wave in 1687. But even in ordinary times, informal tratos were recognized as legally—and socially-- binding. (cont'd)

The Strange Symbiosis of Libel and the Popular Press

My thanks once more for the opportunity to be your guest blogger this month. This will be my final post.

The Strange Symbiosis of Libel and the Popular Press

In late 1920, London daily newspapers had a field day recounting the scene before the King’s Bench and a special jury. A slander case pitted writer Marguerite Radclyffe-Hall against St. George Lane Fox-Pitt, son of famed archeologist Augustus Pitt-Rivers. Fox-Pitt had recently learned from Admiral Troubridge that Radclyffe-Hall had taken up with the Admiral’s estranged wife. Fox-Pitt used this information to discredit Radclyffe-Hall at the Society of Psychical Research, purportedly calling her a “grossly immoral woman.” In court, Fox-Pitt denied that he had ever called the plaintiff “immoral.” Or, he equivocated, if he had done so, he had not meant it maliciously. Indeed, if he meant it at all, the claim pertained to her work, not to Radclyffe-Hall herself. According to the Daily Mirror, the courtroom burst into laughter as Fox-Pitt attempted to describe the immorality implicit in Radclyffe-Hall’s psychic account of a “spook horse” bathing in heaven. Not even the judge seemed able to move past the strangeness of spiritualist study to follow Fox-Pitt’s point [1]. Radclyffe-Hall won her slander suit, receiving £500 damages, a decision upheld on appeal in 1921 [2]. She won thanks to the little-known 1891 Slander of Women Act that allowed women (and only women) in England and Wales to sue for sexual slander without having to prove damages. The law would remain on the books until 2013.

I have been thinking quite a bit about this Act since starting research on reputation. It gets mentioned regularly in legal primers as one of the few caveats in British defamation law. Whereas the law generally requires proof of financial damages in cases of oral slander, the 1891 Act exempted women, since the quintessential middle-class Victorian woman presumably had no market income to lose. There are only a few hits when one searches for cases in the law reports, not leaving the historian much to draw from. If one shifts one’s view from law reports to the newspapers, however, one finds several dozen cases over the law’s 122-year life, the bulk of them taking place between its 1891 passage and 1940. With each expansion of the online British Newspaper Archive, I find more. Some of the stories are set up as general-interest stories, while other slander of women cases were less visible. Editors clearly deemed Radclyffe-Hall’s trial to be good entertainment for readers, and covered it on the first or second pages of their papers.   

As a historical repository of courtroom drama, newspapers are unparalleled sources. But they are far from being neutral parties, of course. It is perhaps hard to find an area of research in which this is more the case than in questions surrounding defamation. Members of the press were outspoken in their critique of libel law at every stage. Nevertheless, journalist critics of libel laws rarely advocated the outright abolition of defamation law. Radclyffe-Hall’s case and Kelly v. Sherlock (see my previous post) offer useful ways of thinking about newspapers’ relationship with defamation cases and how historians might take the relationship into account.

Radclyffe-Hall’s case was a society case. It was entertaining, and it would sell well. Thanks to amendments to the libel laws in the 1880s, news outlets could report on court proceedings so long as the reporting was done accurately and without malice. Targeting an ever-wider readership, especially among women, mass newspapers could bank on the appeal of a social celebrity like Radclyffe-Hall. The seeming ridiculousness of the whole affair likely made the courtroom drama all the more appealing. The laughter in the courtroom stood in for newspaper editorializing, which would have been off limits—or, rather, open to libel charges in turn. Indeed, the entire scene underscores an implicit agreement about the bounds of civility in the period. It was permissible to laugh at Fox-Pitt for his unchivalrous and inept condemnation of Radclyffe-Hall. His inhibitions about addressing her sexuality in the courtroom can be attributed to the Slander of Women Act’s blanket prohibition on criticism of a woman’s virtue. But the courtroom and wider public also seemed remarkably at ease with Radclyffe-Hall’s well-known lesbianism a decade before she published her seminal (and censored) Well of Loneliness. It helped, of course, that the case involved a psychical society, not politics; the stakes were lower. This could not be said about Kelly v. Sherlock. 

Sherlock got into trouble not because he published about Kelly but because of the manner in which he discussed Kelly. Kelly was indeed fair game. He’d made himself a target of public interest, as Baron Bramwell ruled in the trial at the Manchester assizes in August 1865. While there might be a privilege in sermonizing to one’s flock (Bramwell was doubtful, but upheld it), there was no pastoral privilege to criticize civil officials. By so doing, Bramwell held, Kelly opened himself to public rebuke [3]. Sherlock’s infraction, then, was not criticizing Kelly, but doing so in an overly vitriolic manner. It was a contemptuous attack on his professional persona. Newspapers that reported on Kelly and Sherlock could do so without feeling that they were betraying their profession or inviting trouble themselves because, to them, the case helped clarify the boundaries of legitimate journalistic practice. Journalists were not unqualified defenders of journalistic latitude, and saw no reason to be so. They were comfortable with a legally-enforced code of journalistic civility.

It is significant when even those with an interest in criticizing a norm assent to it in principle, since this reflects the power of a social norm. On my bus ride home today, I was reading the 1967 Report of the Joint Committee on Censorship of the Theatre. In his testimony to the committee, Kenneth Tynan, then fighting to have Hochhuth’s Soldiers staged, demanded the end of censorship. His phrasing early in his testimony is of note: “there should be no restriction short of libel on the presentation of historical characters living or dead” [4]. 

[1] Daily Express, November 19, 1920, p. 1; Daily Mirror, November 19, 1920, p. 2. 

[2] "Court of Appeal." Times, March 16, 1921, p. 5.

[3] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686, 689.

[4] Testimony of Kenneth Tynan January 24, 1967, as found in the Minutes of Evidence appended to the Joint Committee on Censorship of the Theatre, p. 80.

--Caroline Shaw

An Introduction: Finding a Common Thread

My sincere thanks to Mitra, Karen, and Dan for the opportunity to write for the Legal History Blog this month. For me, the timing could not be better. I am delighted to be embarking on a sabbatical year. It is my first leave fully devoted to my second project, on reputation, and I hope to use the blog to share insights and challenges as I draw together the research that I’ve been conducting piecemeal over recent years. Today, I will introduce my work. In subsequent posts, I plan to use examples from the material to reflect on methodology: research scope; representativeness and the difficulties of selection; and, finally, grappling with biases in source material.

From Refugees to Reputation: Or, From Project One to Project Two

Britannia’s Embrace studied the history of British refuge for foreign nationals from the Huguenot diaspora of the seventeenth and eighteenth century through the mass migration of Eastern European Jews at the turn of the twentieth century. I argued that, at a time when laws did not restrict movement in or out of the country, Britons across the political spectrum came to identify refugees as a clear subset of charitable cases. Refugees were, by virtue of their persecution, not only particularly deserving of humanitarian assistance, but – as Britons increasingly argued – had a distinct right to asylum. In practice, this refuge depended on empire, on access to seemingly more open (if not “empty”) territory for the foreigners’ long-term resettlement. As these spaces became less viable, officials and aid workers alike began to hedge on what had become a proud national practice. The story was one of the rise and fall of British refuge, and one of the dynamic relationship between humanitarianism and human rights claims that continue to shape the treatment of refugees today.

                                             (Benjamin West, John Eardley Wilmot, 1812, Google Art Project, 
                                             Yale Center for British Art.)

There are different schools of thought about choosing a second project. I have heard suggestions of simply moving a first project further in time or expanding the chronology, or shifting to a related focus – e.g. moving from a history of refuge to international aid, like a study of the Red Cross (a turn I once considered). For better or worse, I have followed none of these suggestions, though I continue to anchor my work in Britain and to use the (very) long-nineteenth century as my starting point. I could point to a number of libel and slander cases that cropped up in my research on refugees. Refugees, too, relied on their ability to offer (or have offered of them) a compelling story – a spotless reputation. But this was not the bridge I took from one project to the next.

I am drawn to the exploration of quasi-rights and explore the contexts in which those quasi-rights evolve: refuge is not a right in modern parlance (asylum-seeking is); reputation, when mentioned, is usually treated as a secondary right, a caveat to the freedom of expression. Such “quasi-rights” are difficult to pinpoint. I like that their histories require a more catholic methodology to understand the changing social values behind their development. I have tended to call myself a cultural historian in this pursuit. Cultural history has been my intellectual base since my undergraduate years. Conceptual history might be a more accurate description.

Beyond Sticks and Stones

Focusing on defamation law – slander and libel – Beyond Sticks and Stones examines debates over the law as well as its usages to assess what has been seen as something of a quasi-right to reputation in the British context. Blackstone called reputation an “absolute right” in the 1783 edition of his Commentaries on the Laws of England. Though we rarely speak of it in these terms today, twentieth-century conventions recognize a similar responsibility. The 1966 UN Covenant on Civil and Political Rights, for example, protects freedom of expression so long as that expression does not diminish an individual’s standing in their community. In Britain, the discussion is far more pointed and with pressing cause: British libel law is notoriously effective for plaintiffs pursuing their defamers. London has become the “libel capital of the world,” “libel tourism” a thriving business for lawyers, celebrities and politicians alike at the cost of a “chilling effect” on the media and freedom of the press [1].

This state of things is rooted in centuries of ongoing handwringing over the problem of defending personal reputation and attempts to assess whether and how civil law should assist the defamed, as well as who deserved protection. Beyond Sticks and Stones aims to tell this longer history of contest over the means of making reputation modern that included – and extended far beyond – attacks on the iconic aristocratic duel. Unsurprisingly, one finds sustained conversation about the defamation of individuals in the battle for a freer press. Unexpected, to me at least, was a regular acceptance, among politicians, lawyers, and journalists alike, that defamation law was the necessary price to pay for a freer press: censure, rather than censorship. This was a formula that remained powerful from the 1790s at least through the 1960s. The question was, then, how best to modernize laws that were (and remained) imperfect at best.   

My research has me immersed in samples of cases from 1780-2000, currently numbering more than 600 and counting, as well as political and legal tracts, parliamentary debates, newspaper editorials and correspondence, and etiquette manuals. The range of this material can be dizzying and cannot in its entirety be dumped into a single manuscript, to be sure! I will reflect on scope and case selection in subsequent posts. Broadly, though, the manuscript is divided chronologically as well as thematically. Early chapters explore, respectively, the cultural location of reputation in a world that seemed poised to reject its defenses as antiquated; the making of personal reputation as a caveat to freedom of the press; and social use of the law in negotiations over community authority and critique. The later chapters take a case-study approach, examining the boundaries between personal reputation and that of groups and of the state. While ostensibly distinct, in practice these kinds of reputation overlapped. The chapters will, in turn, foreground gender and the sexual slander of women; group defamation – or, the protection of individual v. community; and biography, reputation and the (post)imperial nation. A final, concluding chapter will set the discussion of personal reputation within a context of international publication and European convention since c. 1970. Ever the nineteenth-century historian at heart, I doubt I will refrain from highlighting antecedents, though finding the proper balance will be a matter of time, reflection, and revision.

A Request

I benefit from significant work in areas related to my study [2]. The benefit of research leave is having the space for drawing comparisons as I write. Feel free to email reading suggestions.

Notes:

[1] William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1, p. 130; "Be Reasonable," Times (19 May 2005), p. 19. The Times Digital Archive; Mayes, Tessa, et al. "Call for change on libel laws," Times (16 Dec. 1999), p. 23. The Times Digital Archive.

[2] There is, of course, an older literature on the liberty of the press and the media, as well as newer classics on privacy and secrecy in the modern era. See, for example, William Wickwar, The Struggle for Freedom of the Press, 1819-1832 (London: George, Allen, Unwin, 1928); Deborah Cohen, Family Secrets: Shame and Privacy in Modern Britain (New York: Oxford University Press, 2013); and David Vincent, I Hope I Don't Intrude: Privacy and its Dilemmas in Nineteenth-Century Britain (Oxford: Oxford University Press, 2015). There are also fantastic studies of honor and sexual honor, especially, in the early modern period, and essential texts on reputation and community in colonial South Asia, South Africa, and Australia, as well as in the American South: for example, Kirsten McKenzie’s Scandal in the colonies: Sydney and Cape Town, 1820-1850 (Carlton, Vic.: Melbourne University Press, 2004) and Mitra Sharafi’s Law and Identity in Colonial South Asia (Cambridge: Cambridge University Press, 2014).

--Caroline Shaw