Downs, "The Second American Revolution The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic"

The University of North Carolina Press has published The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (Nov. 2019), by Gregory P. Downs (University of California, Davis). A description from the Press:

Much of the confusion about a central event in United States history begins with the name: the Civil War. In reality, the Civil War was not merely civil--meaning national--and not merely a war, but instead an international conflict of ideas as well as armies. Its implications transformed the U.S. Constitution and reshaped a world order, as political and economic systems grounded in slavery and empire clashed with the democratic process of republican forms of government. And it spilled over national boundaries, tying the United States together with Cuba, Spain, Mexico, Britain, and France in a struggle over the future of slavery and of republics.

Here Gregory P. Downs argues that we can see the Civil War anew by understanding it as a revolution. More than a fight to preserve the Union and end slavery, the conflict refashioned a nation, in part by remaking its Constitution. More than a struggle of brother against brother, it entailed remaking an Atlantic world that centered in surprising ways on Cuba and Spain. Downs introduces a range of actors not often considered as central to the conflict but clearly engaged in broader questions and acts they regarded as revolutionary. This expansive canvas allows Downs to describe a broad and world-shaking war with implications far greater than often recognized.

Advance praise:

"A bold and refreshing interpretation of the Civil War that challenges scholars to bring the singular story out of its narrow, hyperspecialized confines of national history, reframing it into a watershed moment shaped by hemispheric and global forces that remade the nineteenth-century Atlantic world."--Matt D. Childs

"With beautiful, elegant prose, Downs takes the old topic of the revolutionary quality of the Civil War and moves it forward in unexpected and exciting ways by putting it in conversation with the revolutionary nature of the Atlantic in the same period. This is a truly pioneering and innovative book."--Michael Vorenberg

More information is available here.

-- Karen Tani

Essays on Fascist, Nazi and Authoritarian Criminal Law

Ideology and Criminal Law: Fascist, National Socialist and Authoritarian Regimes, edited by Stephen Skinner and published by Hart, is now available:

With populist, nationalist and repressive governments on the rise around the world, questioning the impact of politics on the nature and role of law and the state is a pressing concern. If we are to understand the effects of extreme ideologies on the state's legal dimensions and powers – especially the power to punish and to determine the boundaries of permissible conduct through criminal law – it is essential to consider the lessons of history. This timely collection explores how political ideas and beliefs influenced the nature, content and application of criminal law and justice under Fascism, National Socialism, and other authoritarian regimes in the twentieth century. Bringing together expert legal historians from four continents, the collection's 16 chapters examine aspects of criminal law and related jurisprudential and criminological questions in the context of Fascist Italy, Nazi Germany, Nazi-occupied Norway, apartheid South Africa, Francoist Spain, and the authoritarian regimes of Brazil, Romania and Japan. Based on original archival, doctrinal and theoretical research, the collection offers new critical perspectives on issues of systemic identity, self-perception and the foundational role of criminal law; processes of state repression and the activities of criminal courts and lawyers; and ideological aspects of, and tensions in, substantive criminal law.

–Dan Ernst

Burney, Hamlin and friends on Global Forensic Cultures

Out now with Johns Hopkins University Press is Global Forensic Cultures: Making Fact and Justice in the Modern Era, edited by Ian Burney, University of Manchester and Christopher Hamlin, University of Notre Dame. From the publisher: 

Contemporary forensic science has achieved unprecedented visibility as a compelling example of applied expertise. But the common public view—that we are living in an era of forensic deliverance, one exemplified by DNA typing—has masked the reality: that forensic science has always been unique, problematic, and contested. Global Forensic Cultures aims to rectify this problem by recognizing the universality of forensic questions and the variety of practices and institutions constructed to answer them.

Groundbreaking essays written by leaders in the field address the complex and contentious histories of forensic techniques. Contributors also examine the co-evolution of these techniques with the professions creating and using them, with the systems of governance and jurisprudence in which they are used, and with the socioeconomic, political, racial, and gendered settings of that use. Exploring the profound effect of "location" (temporal and spatial) on the production and enactment of forms of forensic knowledge during the century before CSI became a household acronym, the book explores numerous related topics, including the notion of burden of proof, changing roles of experts and witnesses, the development and dissemination of forensic techniques and skills, the financial and practical constraints facing investigators, and cultures of forensics and of criminality within and against which forensic practitioners operate.

Covering sites of modern and historic forensic innovation in the United States, Europe, and farther-flung imperial and global settings, these essays tell stories of blood, poison, corpses; tracking persons and attesting documents; truth-making, egregious racism, and sinister surveillance. Each chapter is a finely grained case study. Collectively, Global Forensic Cultures supplies a historical foundation for the critical appraisal of contemporary forensic institutions which has begun in the wake of DNA-based exonerations.

Table of Contents after the jump:

On the Indigenous Experience in the Americas

One of the issues that habitually frustrates me is the disconnect between historians who work on the colonial period and those who specialize in the indigenous world. Theoretically, both engage with the same period and depend on similar or even (on occasions) identical sources, but their aims and their readings are often diverse, the bibliography they consult is habitually distinct, and they frequently belong to different fields and professional associations. The result is that they are seldom in conversation with one another. Having participated recently in a search for a historian of Indigenous North America made this clear to me, but so have many years working as a scholar of Spanish America.

How could one place colonial and indigenous history in dialogue? To answer this question, I authored two pieces. The first piece was concerned with Indigenous right to land, the other focused on campaigns to resettle natives in new, Spanish-style communities.[i]

Attempting to understand why some historians insisted on Spanish respect to native land rights (mostly historians of the Spanish colonial state) while others criticized Spain for the massive dispossession of natives (mainly historians interested in the native experience of empire), I observed how respect to native rights operated in the colonial period.  I argued that respect did not guarantee continuity. On the contrary, it (often) introduced change. This could happen because Spanish judges, although willing to recognize indigenous right to land, understood land rights not according to Indigenous law but according to European juridical traditions. These judges tied land rights to occupation and described occupation in ways that resonated with the European experience. The result was both the suppression of ancient rights as well as the invention of new entitlements. In other words, examination of how European norms were applied vis-à-vis natives enabled to affirm that respect to native rights and native dispossession could operate simultaneously.

With regards to native resettlement, historians of native Spanish America usually denounced resettlement campaigns as a colonial measure aimed at controlling, converting, and exploiting the native population. Yet, as a historian of Spain in both Europe and the Americas I knew that resettlement did not only target natives but also Spaniards and that it operated in both the Old and the New World. Justifying it were contemporary convictions that only people who resided in proper communities (and indigenous communities were not considered “proper”) could be tied to the polity religiously and civically. The question when resettlement was required, against whom, and for which end, thus demanded a larger and a longer vision. As happened in the case of native land rights, just looking at natives, just looking to the Americas, was insufficient.

These remarks are not meant to diminish the plight of native Americans. European colonialism turned the native world upside down. It was a human-made hurricane that touched and upset almost everything. But, regardless of how terrible it had been, if we wish to understand how it operated, we should not separate the study of the native world from the study of the colonial (and by extension European) world, with which it was closely entangled.

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[i]  Tamar Herzog. “Colonial law and ‘Native Customs’: Indigenous Land Rights in Colonial Spanish America.” The Americas 63(3) (2013): 303-321 and Tamar Herzog. “Indigenous Reducciones and Spanish Resettlement: Placing Colonial and European History in Dialogue.” Ler História 72 (2018): 9-30 (an earlier version of this work was published under the title “Terres et déserts, société et sauvagerie. De la communauté en Amérique et en Castille à l’époque moderne.” Annales HSS 62 (3) (2007): 507-538)).

Citizenship, Naturalization, and Belonging: Attempting a Comparative Legal Research

In 2003 I published a book on citizenship and belonging in Spain and Spanish America.[1]  Having surveyed hundreds of conflicts in which individuals requested rights (or were forced to comply with duties) either in local communities or in the kingdom, I discovered that both litigants and those who opposed them, both local and royal authorities, both jurists and laymen, referenced a similar set of criteria. According to it, status, rather than being automatically abstracted from birth or descent, hinged upon the ability to demonstrate attachment to the community. Attachment could be demonstrated in multiple ways: local residence, marriage to a local person, owning of real estate, or paying taxes. Although a legal presumption protected those born locally to locally born parents –in their case the presumption held that they loved the community and were loyal to it— if there was reason to believe the contrary, then despite local birth to locally born parents, these individuals would be considered foreign. The same was true of those born outside to foreign parents. In their case, the presumption held that they had no love to the community. But if they could demonstrate that they did (by referencing the indications enumerated above that demonstrated integration) then they would be recognized as members.

In both Spain and Spanish America, these categories operated vis-à-vis both the local community (constituting individuals as vecinos) and the kingdom community (recognizing them as naturales). Initially, each Spanish kingdom had its own community of natives, which was distinguished from others (there were natives of Castile, natives or Aragón, and so forth). However, by the late sixteenth century, the category “natives of the kingdoms of Spain” also made its appearance. First applied in the Americas, where only “natives of Spain” could theoretically reside and undertake commercial activities, by the early eighteenth century this category was also applied in the Iberian Peninsula. Thereafter, legally, at least, there was only one community of natives in Spain and it included all Spaniards.

My aim in pursuing these questions was to write a history that would observe NOT how states and kings defined members but how residents engaged in the elaboration of a legal distinction between natives and foreigners, Spaniards and aliens. Rather than discovering what the law meant, I was after the question how historical actors used the law and how this use influenced what they said and what they did. I also wanted to re-think debates regarding citizenship. These debates affirmed the importance of medieval urban citizenship to the formation of state centered citizenship, but normally failed to explain how these processes of borrowing and extension took place. Spain and Spanish America gave an interesting answer because they demonstrate that to determine who Spaniards were people asked about their urban membership. If the literature tended to affirm that there were no citizens in monarchical territories, my wish was to showcase their importance. Methodologically, I was interested in reconstructing the legalities of the past not by referencing abstract legal doctrines, jurisprudence, or legislation, but instead by analyzing the words and behavior of a multiplicity of actors. Undertaking a task similar to the one linguists perform when they analyze speech to reconstruct the rules that govern it, I wanted to understand how contemporaries conceived of membership. Why did they think they had rights? How did they explain their refusal to allow others to enjoy them?  I was also fascinated by the need to reconstruct rules by observing conflict. I asked: what do moments of disagreement tell us about consensus? How can we learn from them what happened when people agreed?  

In chapter 8 of that book I engaged with comparative research. I asked whether if we applied the same questions and methodology to England, France, and Italy, we would reveal similarities. Because I could not carry out the same detailed archival research in my comparative examples, I decided to focus instead on examining the secondary literature.

The historians whose work I read affirmed that membership in England, France, and Italy was radically different than what I have discovered in Spain and Spanish America. Yet, as I read through their scholarship I found plenty of indications that such might not have been the case. Municipal and kingdom communities also existed in England, France, and Italy and, in most of the cases I reviewed, membership in them implied the imposition of a certain regime of privileges and duties. In all these places, obtaining status as member was contingent on behavior, which could be formally recognized by the competent authorities or implicitly acquired through prescription. Behaviors recognized as meaningful were also extremely similar: permanent residence and tax payment ranked high but so did marriage to a local or the purchase of real estate. Local birth to locally born parents could be significant on occasions, but it was mostly treated as a legal presumption, not a condition sine-qua-non. Prima-facie, England did look somewhat different because of the tying of freedom to the exercise of certain professions. Yet, in the early modern period, freedom and Continental citizenship came to be closely associated, most clearly in the ruling of common law courts. Similarly, if subjecthood in England seemed divergent when observed through the famous Calvin Case, it stopped being thus if analyzed, for example, by studying how imperial subjects negotiated status as Englishmen.[2]

I thus concluded that similarities between the Spanish, Italian, French, and English experience might have been much greater than is currently accepted and that that there was, in fact, a common European framework that operated across the continent despite the existence of local variations. As a historian of Spain, I thus wondered: Can Spanish history be normalized rather than exoticized (as it usually is)? Can it be made central to narratives of European (and legal) formation? Can we converse across national historiographies to imagine a common European past or is this attempt doomed to fail? How to overcome a tendency to highlight particularities rather than to search for what we share?

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[1] Tamar Herzog. Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America. New Haven: Yale University Press, 2003; Vecinos y extranjeros. Hacerse español en la edad moderna. Madrid: Alianza Editorial, 2006; Nations, Citoyens, Immigrés dans L’Espagne et l’Amérique espagnole du XVIIIe siècle. Paris: Le Poisson Volant, 2017.

[2] On these issues, see the most recent Hannah Weiss Muller. Subjects and Sovereign: Bonds of Belonging in the Eighteenth-Century British Empire. New York: Oxford University Press, 2017 and my review, published in the William and Mary Quarterly 75 (1) (2018): 179-182. Also see Daniel J. Hulsebosch. “English Liberties Outside England. Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire.” In Lorna Hutson ed. The Oxford Handbook of English Law and Literature, 1500-1700. Oxford: Oxford University Press, 2017, 748-772.

On Turner’s Westward March from a Different Perspective

Frederick Turner’s description of U.S. territorial expansion as a march to no man’s land (the so-called Turner frontier thesis) has been questioned and to a large degree discredited in recent decades. Among other things, historians have pointed out to the obvious: the land was never empty and most actors were aware of the presence of native peoples (and of other colonial subjects) whom they sought to dispossess. 

Having studied the territorial expansion of Spain and Portugal in both Europe and the Americas, I cannot but agree.[i] Yet, dismissing Turner altogether is like throwing the baby out with the bathwater. As happened with the Tannenbaum Thesis (that compared slavery and race in South and North America), once completely discarded and now undergoing at least a partial rehabilitation, it is perhaps time we recalibrated our visions regarding how European actors (and their American descendants) sought to justify their activities. 

The experience of Spain and Portugal can be useful in this regard. Although the Spanish and the Portuguese signed bilateral treaties and invoked rights by discovery, conquest, and, on occasions, papal bulls, they mostly based their claims on occupation. They disagreed about what occupation was, and they certainly conflicted over who had it, but they referenced a common framework according to which those who used the land “appropriately” would acquire rights to it. This vision permeated both what they did and what they said in both Europe and the Americas, vis-à-vis members of their own group as well as vis-à-vis outsiders, both natives and other colonial powers. 

The linking of land rights to possession was of course anchored in European legal traditions. By the early modern period, these traditions instructed that, to obtain rights, one had to occupy the land for an extended period without suffering opposition. Most actors who invoked these ideas were not jurists and many among them were illiterate peasants living in remote communities that their contemporaries classified as uncivil. Yet, these individuals were convinced that if they acted on the territory, if they opposed the pretensions of their rivals (the best opposition being the most vocal and most violent because it best manifested their disaccord), they would acquire rights.  

Contemporary actors never explained where this understanding came from and they were rarely cognizant that their discussions replicated erudite legal doctrines. Instead, they usually affirmed that this was the way things were, everywhere, always. They described having watched their parents and friends do the same or having heard stories about what happened when they did not. Faced with this reality, I constantly asked myself: did these ideas originate in customs that were then formalized by jurists (as many of us now view the contribution of ius commune jurists to European legal development), or did jurists succeed in disseminating their doctrines to the point that they permeated debates among contemporaries, even the most illiterate and the most peripherical? If they did, what instruments did they use? Who and what contributed to their success? 

While contemporary documentation gave no answers, it nevertheless made clear that actors were aware of the existence of native peoples (and other colonists) and were cognizant of their entitlements. Nevertheless, almost none of them considered that this presence should hinder their penetration and occupation.  Some justified penetration and occupation by the duty to convert or civilize but most based it on discrediting the use natives (or other colonists) made of the land, arguing that it was inappropriate and therefore bestowed no rights. In this respect, Turner was right. From the perspective of contemporary actors, the land was empty, if not of people, at least of rights. However, Turner was wrong because he failed to appreciate the degree by which debates on land were entangled in debates about people. Contemporaries knew that the best way to take possession of the land was either to discredit its inhabitants or by taking possession of them. Conversion was one common way to take possession of people (conversion being considered to have both religious and civic consequences), but alliance making, and conquest was another. Imagining natives, not territory, as the true no-man’s land, in Spain and Portugal, at least, actors suggested that before Europeans arrived and natives were subjected to them, natives belonged to no one and any European could take possession of them as a “vacant” property. Yet, these Spanish and Portuguese also asserted that after natives were “taken,” indeed possessed, they were occupied and could not be legitimately “taken over” by another group. 

Because at stake was not only occupying land, but also (perhaps mainly) occupying people, Spanish and Portuguese presence in the Americas was much more unstable, tentative, and provisional than most colonial historians tend to describe. Ambiguity and chaos were more typical than certainty and clarity. The outcome was not the construction of an uninterrupted colonial territory, but instead the emergence of a fragmented space that constantly changed shapes alongside a struggle over the use of land, which was never detached from the struggle to control people.  

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[i] Tamar Herzog. Frontiers of Possession: Spain and Portugal in Europe and the Americas. Cambridge MA: Harvard University Press, 2015 (also available as Fronteras de posesión: España y Portugal en Europa y las Américas. Madrid: Fondo de Cultura Económica, 2018; Fronteiras da Posse. Portugal e Espanha na Europa e na América. Lisbon, Imprensa de Ciências Sociais, 2018 ; a Brazilian translation is forthcoming).