Su and Goravara on Slave Courts and the 7th Amendment

Wanling Su, Indiana University Bloomington, and Rahul Goravara, Georgetown University Law Center, have posted What is a Jury? which is forthcoming in the North Carolina Law Review:

The Supreme Court has held that the Seventh Amendment “preserves” the right to a civil jury as it existed when the Amendment was adopted in 1791. This “historical test” has become a hallmark of Seventh Amendment doctrine, but also, at times, a source of frustration. In one instance, the vexed Court has thrown up its hands and given up on the historical test entirely. Despite its best efforts, the Court has not been able to determine based on the historical record available whether the Framers intended to preserve the right to twelve jurors, or if a smaller number would suffice.

Although twelve was likely the usual number in 1791, its prevalence, in the Court’s words, could very well have been an “accidental feature of the jury.” The Court held that “forever codifying” the right to twelve jurors “would require considerably more evidence than we have been able to discover in the history and language of the Constitution.” This Article scours ratifying convention records, contemporaneous treatises, Founding-era legal dictionaries, early precedents, and archival records from the private libraries of the Seventh Amendment’s drafters in search of evidence that may shed light on their intentions and the Amendment’s public meaning at ratification.

Perhaps most informative, however, is what the Framers did not consider a jury. As this Article chronicles, Carolina slave courts denied enslaved people constitutional and common law rights, but nevertheless offered accused slaves as many as five jurors in what were described as “non-jury” trials. By offering a careful and comprehensive look at what the drafters did not consider a jury, as well as at the events, early precedents, and writings that inspired the Seventh Amendment, this Article corrects the Court’s misperception that the Founding-era practice of impaneling twelve jurors was mere happenstance. 

--Dan Ernst 

Frampton on the First Black Jurors

Thomas Frampton, University of Virginia School of Law, has posted The First Black Jurors and the Integration of the American Jury, which is forthcoming in the New York University Law Review:

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

--Dan Ernst

A Symposium for James Oldham

James Oldham (GULC)

In 2020, James Oldham, the St. Thomas More Professor of Law and Legal History at the Georgetown University Law Center, took emeritus status after fifty years on the faculty.  Last January, with the help of a dozen legal historians, Georgetown Law celebrated his career with the symposium, “James Oldham: The Love and Labor of Archival Research.”  Last week, while we were away, revisions of the remarks delivered on that occasion were published in The Docket, the online supplement to Law and History Review.  Last week, many LHB readers will have spotted Gautham Rao’s announcement, as Editor-in-Chief of LHR, on social media of the publication of the symposium, but we note it here as well to ensure that our other readers know of it too.

–Dan Ernst

Lettow Lerner's "Very Short Introduction" to the Jury

Renée Lettow Lerner, George Washington Law, has published The Jury: A Very Short Introduction (Oxford University Press):

From ancient Athens to modern Asia, cultures have wanted ordinary people involved in making legal decisions. This Very Short Introduction charts juries from antiquity through the English-speaking world and beyond to Europe, Latin America, Africa, and Asia. Today, juries have become a symbol of democracy and popular legitimacy.

But in English-speaking countries, jury trials are declining. Civil juries have been virtually abolished everywhere except the United States, and plea bargaining is taking the place of criminal jury trials. In this book, Renée Lettow Lerner describes the benefits and challenges of using juries, including jury nullification. She considers how innovations from non-English-speaking countries may be key to the survival of citizen participation in the legal system.

Along the way, the book tells how a small German state invented a way of using jurors that is now found around the world. And it reveals why some defendants preferred to be crushed to death by weights rather than convicted by a jury.

--Dan Ernst

Gomez-Arostegui and Bottomley on 18th-C Patent Infringement Suits

Tomas Gomez-Arostegui, Lewis & Clark Law School, and Sean Bottomley, Northumbria University, have posted Patent-Infringement Suits and the Right to a Jury Trial, which is forthcoming in the American University Law Review:

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on 18th-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and that therefore litigants today who seek only injunctive relief possess no such right either. But as we demonstrate here, the relevant historical record shows the contrary, and thus many litigants have a constitutional right to a jury where the courts presently deny them. We reach our conclusion after undertaking the most comprehensive treatment of the subject to date, which includes marshaling hundreds of 18th-century records (mostly in manuscript) from the National Archives of the U.K. and elsewhere.

--Dan Ernst

Crosby on the Jury in the UK and the US

K. Crosby, Senior Lecturer in Law, Newcastle Law School, has posted several articles on the jury in the United Kingdom England and the United States.

Arguments: Jury lawfinding debates in 1842 New Hampshire, published in A Cultural History of Law, vol 5: A Cultural History of Law in the Age of Reform 1820-1920, ed. Gary Watt and Ian Ward (Bloomsbury, 2019), 91-110:

C.D. Gibson "The Jury" (1906) (NYPL)

The Age of Reform 1820-1920 witnessed a significant move from popular constitutionalism, rooted in traditions of participatory democracy, to a much more exclusive, judge-centric, view of the law (Kramer 2004). This chapter explores this general development through detailed consideration of the particular case of Pierce v State (1843) 13 NH 536. The importance of the Pierce case, which concerned a conflict between the respective powers of judge and jury, has long been acknowledged. In the Supreme Court’s 1895 rejection of jury lawfinding, it was one of the most influential cases cited by Harlan J; and in more recent academic literature its final appellate judgments have been described as “two of the most well-reasoned discussions opposing the jury’s right to judge the law” (Conrad 1998: 69). But despite its foundational status within the judicial rejection of the jury lawfinding argument, little is known about the way the judgments were formed. The present chapter relies on contemporary newspaper reports and pamphlets to fills this gap in the cultural history of the case. In so doing, we will shed light on the popular cultural reception of constitutional developments in the Age of Reform.

Abolishing Juries of Matrons, Oxford Journal of Legal Studies 39 (2019): 259-284:

This article explores the last 50 years of the jury of matrons, a special type of jury used in England and Wales until the middle of the 20th century to secure reprieves for pregnant women sentenced to death. Despite claims that the jury of matrons had fallen out of use by the middle of the Victorian era, such juries were used in over 10% of cases in which women were sentenced to death during the first three decades of the 20th century. Exploring the circumstances in which the jury of matrons was abolished in 1931 can help us see how various important parts of the contemporary criminal justice system of England and Wales developed. In particular, it allows us to see in greater detail how ideas of the jury and of capital punishment were changing at this time, and how important political networks were in securing legislative reforms.

Keeping Women off the Jury in 1920s England and Wales, Legal Studies 37 (2017): 695-717:

The Sex Disqualification (Removal) Act 1919 ended the prohibition on female jurors. This did not mean that English and Welsh juries became representative institutions overnight, however: the property qualifications ensured that juries were still drawn from the top few per cent of the local population; and the 1919 Act expressly permitted trial judges to order single-sex juries where the nature of the evidence required it. The continued existence of peremptory challenges allowed defendants in felony trials to exclude women from their juries whenever they preferred to be tried only by men. Finally, some judges permitted female jurors to excuse themselves from particular trials if they so desired. This paper explores the effects these factors had on the practical enjoyment of the female jury franchise after the passing of the 1919 Act. It finds that the picture is remarkably localised: rates of women serving on juries were very different for the five assize circuits for which adequate records exist (Midland, Oxford, South Eastern, South Wales and Western). By exploring these issues, this paper reveals how flexible the female jury franchise was in its early years, and shows how important local differences were in keeping women off the jury.

--Dan Ernst

Weekend Roundup

• The Federal Judicial Center has a new documentary history in its series of Famous Federal Trials: U.S. v. Albert B. Fall: The Teapot Dome Scandal, by Jake Kobrick.

• New online from American Journal of Legal History and Oxford Academic: Combatting Bias in the Criminal Courts of France: 1870s–1913, by James Donovan. 

• Here is an excellent webpage on digital archival research by the Mina Rees Library off the Graduate Center of the City University of New York.   

• “The University of New Brunswick has removed George Duncan Ludlow's name from its law faculty building in Fredericton after concerns were raised last year over his involvement in residential schools and his legal endorsement of slavery.” (CBC).

• Ryan Shymansky, a 2019 Georgetown Law graduate, has published the note The Great Bulwark of ...Political Liberties”: The Decline of Jury Power and the Rise of Slave Interests in the Early American Republic in the Georgetown Law Journal.  It originated as a paper for my Georgetown law colleague John Mikhail. DRE

•  ICYMI: Lizabeth Cohen reviews Robert Dallek's presidential history, How Did We Get Here?  (WaPo).  Julian Davis Mortenson and Nicholas Bagley, Michigan Law, on the fopunders and the nondelegation doctrine (The Atlantic).  Ken Bridges on Heman Sweatt and the integration of University of Texas Law School (Waco Today).

• Update: Stephen Vladeck on the federal government's authority to use troops in Minneapolis: the thread and the historical article.

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

Murder Mystery and Legal History: Part I

An elderly memsahib’s body lies crushed at the bottom of a moonlit ski slope in Kashmir in the twilight of the Raj. Prominent businessmen in colonial Calcutta are mysteriously stabbed in the heart by a gramophone needle as they cross the street. The British governor of the fictional African country of Chania is strangled in his study at the end of a dinner party. A French governess is drowned in an abandoned swimming pool in postwar Berlin. This was not what I had expected I’d be writing about when I was invited to invite to join the Legal History blog as a guest blogger in April 2020.

I was eager to use the opportunity to work through theoretical and methodological questions that were arising out of my current research project which seeks to write an alternate international history of radical lawyering emerging from Asia and Africa in the 1950s, by following a network of civil liberties lawyers as they navigate colonial rule, postcolonial authoritarianism, mass migrations and new social movements. Focusing on legal practice across time, I hoped would make visible how the engagement with anti-colonial trials were formative for a generation of young lawyers who would go onto pioneer new forms of progressive lawyering. As a lawyer and a historian of South Asia, I was moving out to explore new geographies and histories and the challenge of writing a transnational history of local legal events. I wanted to think about how sedition trials in Guyana, Pakistan and Singapore would tell us about the nature of “postcolonial” sedition. And how does one understand how a legal practice for political lawyering is funded and sustained. Or, more curiously, why did so many of the lawyers that I was studying enjoy listening to Paul Robeson. 

Yet, before I could begin, the COVID epidemic reached worrying proportions. I relocated countries in short notice, was working with hastily photographed books and consumed with worry about friends and family. Reading difficult texts or grainy archival photos remains challenging and I found myself regressing to comfort reading, consisting of historical novels and mid 20^th century murder mysteries. As historian Aparna Balachandran confirmed in her wonderful essay on “Agatha Christie as Pandemic Reading”, I was not the only person to turn to detective stories. As I was contemplating what, then, to write for the blog, Surabhi Ranganathan suggested that instead of seeing reading for comfort as external to my research, I should think about the links between the two. 
In the series of post to follow, I draw upon three sets of mid 20^th century detective novels, both as sources to think about legal history and as worldbuilders for the terrain that the figures I am studying operated in. I am neither a literary scholar nor a book historian, so my explorations should be taken as akin to the amateur detective, often treading over ground already covered by professionals. 

The Game is Afoot

While murders mark the beginning of human civilization, the public fascination with a murder mystery is a particularly modern phenomenon. Scholars ranging from Michael Foucault to Judith Flanders have shown how public fascination with violent crime arose during the 19^th century, linked to the growth of the popular press, the emergence of the modern police, new medical, forensic and psychological sciences that sought to claim authority and particularly the separation of the public from the private. Indeed, it is not assassinations or public brawls that fed the Victorian public, but the voyeuristic interest in the crime domestic, the opening up of a private home for public consumption. Literary historians argue that the emergence of detective fiction by the late 19^th century developed forms and conventions that were markers of modernity. There remain a number of debates over whether detective stories are inherently leftwing (as opposed to thrillers which are conservative); whether it has literary value or what are the distinct politics of the genre in different languages and regions. There seems to be an overwhelming consensus, that despite its origins in the US with Edgar Alan Poe’s Murders in Rue Morgue and its immense popularity in countries like Japan., the 20^th century genre was distinctly centered and influenced by Britain peaking as a genre in the 1930s and 1940s, described as the “Golden Age of Detective Fiction".

Curiously while these are decades of  extreme political turmoil in Europe, economic depression and contentious politics in Britain and radical left wing and nationalist movements across the empire, the Golden Age Detective story remains almost unaffected from the turmoil. There are occasionally shadowy organizations seeking to overthrow regimes in the Balkans (Comrades of the Red Hand in  Secret of the Chimneys), pointedly non-ideological plots for world domination (The Big Four), and whispers of colonial disturbances (Colonel Race in Christie’s Death on the Nile). The idealized setting is what novelist Colin Watson has evocatively described as Mayhem Parva,

            “a cross between a village and commuters' dormitory in the South of England, self-contained and largely self-sufficient. It would have a well-attended church, an inn with reasonable accommodation for itinerant detective-inspectors, a village institute, library and shop — including a chemist's where weed killer and hair dye might conveniently be bought. The district would be rural, but not uncompromisingly so — there would be a good bus service for the keeping of suspicious appointments in the nearby town, for instance — but its general character would be sufficiently picturesque to chime with the English suburb dweller's sadly uninformed hankering after retirement to `the country.”

            While the locations might occasionally be more exotic, such Miss Marple’sinvestigation in St Honore, Hercule Poirot’s visit to Petra or Roderick Alleyn’s trip on a ship from London to South Africa, in reality this was just “Mayhem Parva’ exported. The victim, detective and group of relevant suspects (carefully excluding the “natives” and most of the service staff) were inhabitants of Mayhem Parva transplanted to more colorful settings. The murderer, the detective and usually the victim (making exceptions for blackmailing butlers) were recognizably gentry. The working/service classes if they appeared were crusty but loyal retainers or adenoidal maids who were “pathetically stupid”. 
 Given this general setting of the genre, I was pleasantly surprised to stumble upon Verdict of Twelve by Raymond Postgate.

Part I: Leftists Litigating: Raymond Postgate and the Trouble with Juries

The murder at the heart of the book is classic Mayhem Parva. The setting is a country house in Devon, inhabited by eleven year old orphan Philip Arkwright, his widowed aunt, two long term family retainers, with occasional visits by the local vicar, the aging doctor, a stolid maidservant and the boy’s tutor.  Philip is the owner of considerable fortune and his death would make his aunt a very wealthy woman and his cook and gardener considerable legacies. When Philip dies a lingering and painful death after eating salad for lunch, the autopsy finds the dressing was sprinkled were hederin (found in ivy dust) which grows plentifully around the house.

But this is where Postgate changes the game. The novel doesn’t follow the painstaking investigation into Arkwright’s murder. At the beginning, we know his aunt, Rosalie Van Beer is under arrest and on trial for murder of the nephew and our setting is the Court of the Assizes in London where the clerk is summoning the jurors to take their oaths. The focus of the book remains the twelve jurors, who represent a cross-section of British society.

The book opens with two epigraphs. The first is the juror’s oath in a trial for murder, “Swearing by almighty God, that I will well and truly try and true deliverance make between our Sovereign Lord the King and the Prisoner at the Bar whom I shall have in charge and a true verdict give according to evidence”. The second more intriguingly is from Karl Marx, and notes “it is not the consciousness of men that determines their existence but on the contrary their social existence that determines their consciousness”. It is the tension between these two epigraphs that holds the book together. While both the police, the tutor (who likes to snoop) and the two lawyers narrate their own investigations, the real detectives in this case are the twelve jurors who are trying to put together  and evaluate the truth drawing on their own social experiences.

The jury trial had long been fetishised as a fundamental right of every Englishman and by the mid 20^th century was presented as a mark of civilisational development and testament to freedom. As Kalyani Ramnath shows, in the colonies, “native subjects” demanded the right to trial by jury of their peers and protested the limited system of assessors. Arthur George Popsegrove, the jury foreman, savours as he repeats his oath, these were “splendid words, each phrase with a patina of history upon it. The consciousness of their meaning and their beauty seemed to radiate to him. No one could doubt, watching him, that he would true deliverance make, as far as ever his powers would let him”. A true Englishman named after the original English king (Arthur) and the present one (George) savouring his rights. Yet, as Postgate’s readers know Arthur Popesgrove was born Achilles Papanastasiou in a small village in Greece. And his move to stolid Englishness, was achieved through Athens and the Riviera, using his skills as a “young Levantine who was willing to work, a promising cook, a graceful and even beautiful waiter and dancer, ..with scruples and inhibitions”. Popesgrove’s career to respectability has been marked with petty theft, fraud, blackmail, seducing older men which makes his faith in the British jury system particularly ironic. As foreman he decides his duty is to combat prejudice arguing that the failure of the defendant to give evidence could not be held against her (“the judge made the English law on the point absolutely clear) and that not everyone can keep their head when questioned by a clever lawyer”.

Other jurors view the oath with some dubiousness, Alice Morris, whose husband was murdered in an anti-Semitic attack and whose killers were never prosecuted, wonders why when the law did nothing to protect her, did it expect her to protect and punish others. It wanted her time, “it claims it as a debt”, but couldn’t do anything to save her husband. The fanatical shop assistant, Mr Bryant kinds the oath “our sovereign Lord the King” almost blasphemous, while Victoria Atkins, the tobacconist, thinks it’s a “silly way of talking”. The Verdict of Twelve, is unusual in being a courtroom drama where the professional legal actors come across very poorly.

“All men in wigs and gowns at first sight look like puppets. The room seemed full of marionettes. The judge looked like a shriveled and malicious doll made of leather. Sir Isambard Burns, the chief counsel, for the defense, had a thing long body and a crow like face. Into one eye, he continually fitted and removed an eyeglass; he looked like a Christmas toy performing a tedious trick. Counsel …for the Crown looked like a wax doll; his shiny pink face under his wig looked as unreal as it had been painted”.

The prosecution counsel’s speeches created an atmosphere of resigned tedium, while the defence counsel dramatic cross-examination is shown as hollow, since he “did not mean to imply anything in particular, but hoped to start some irrelevant doubt in the mind of a stupid juror”. As Postgate notes, “ despite the descriptions in detective novels, court cases are rarely dramatic. For one five minute scene, there are hours of dull and formal proceedings”. The introduction of cutting edge psychiatric evidence is played out to gentle ridicule with the jury feeling they “nearly understood what he said, and if they had only paid more attention to the context they would have understood it altogether”. The expert witness ends his cross examination by declaring the victim was a “concealed sado-masochist” with an Oedipal complex. By the end the audience in the courtroom were “openly yawning”, the “air was stale and the room was cold”. The juror Smith, “being a reader of detective novels and expecting scenes of thrilling excitement, did not realize he was going to be “abominably bored”.

Postgate presents the much fetishized British legal machinery under a harsh and unrelenting neon light. While the Golden Age author frequently showed disdain for the bumbling (and often lower middle class) police inspector, at its core was the ideal of British justice, fair trial and the idea that no innocent be wrongly punished. For instance, Superintendent Spence in Mrs McGinty's Dead engages Hercule Poirot to prove the innocence of the man Spence had himself arrested and had been found guilty in a jury trial. The traditional genre of the detective story, as Franco Moretti observes, absolves society of innocence for the crime. The “crime” is resolved by the arrest of the criminal, and the genre rarely goes into the social conditions that made the crime possible. Postgate turns the genre on it’s head, not in the obvious way as many socially minded figures of his times did, in the psychology or economic conditions that is experienced by the “criminal”. Not only is the psychologist a figure of mockery, so is the upper class Socialist poet on the jury, who while “patiently assembling a Marxist interpretation of the evidence”, loudly declaims against “ridiculous, narrow minded and baseless class prejudice”, and ends up subverting justice.

Juries and Class Consciousness

Class remains the defining feature of every character in the narrative, and attempts to shift or alter class positions brings down the ire of the other characters. The jury is resolutely middle class, property and tax qualifications being necessary for jury service. Victoria Atkins, who began life in a backslum and worked as a housemaid, only qualifies because of a recent legacy from an aunt. Postgate however remains firmly attuned to the fine gradations of class in British society. Describing two jurors, Dr Homes as Oxford don, “who was ill bred, repulsive to look at at and grotesquely idle was a gentleman”, while Mr Stannard, “who had worked hard all his life, who was  kindly to all and was as agreeable in presence as in mind” was not because he ran a pub. The jurors range largely through the lower middle class, including a Plasterer’s Union Shop Steward, a hairdresser’s assistant, a door to door salesman and a shop manager. Class mobility and class camouflage, where accents were neutralized and postures copied are heavily police by all classes. Yet class shapes the ability of the jurors to see and empathize, Dr Holmes, the morbidly obese Oxford professor of classics, and perhaps the highest social class in the jury, realizes with sudden shock that his redoubtable analytic skills was little help in the jury It was not “what would a rather dirty minded poet probably have written in the times of Domitian?, but “How to ordinary human beings behave in the times of stress? What did that unpleasant looking woman over there probably do to a boy I have never seen?”

While Postgate is careful to draw attention to economic conditions and class consciousness, there isn’t a patronizing glorification of working classes. He’s acutely conscious of British working class xenophobia. Edward George, plasterer and trade union official, recounts how men drew benefits that they were not entitled to, even drawing strike pay for dead men. Describing the cook and the gardener in the victim’s household, he notes, “they were to all appearances the typical “old retainers”, devoted to the memory of the Old Master, affectionate to the Young Master and resenting the vulgar intruder….but does the Old Retainer ever really exist? Most people who talk of him have never heard servants talk among themselves or have any idea of what goes on when the green baize door closes and talk is really free in the servants hall”. The servants, regarded themselves merely as “two persons, reasonably well rewarded, who performed very well a skilled task, one of whose conditions were a demeanor of respect and loyalty. Affection entered into it very little”, their chief interest was the “accumulation of enough money to retire upon in a cottage of their own”. The young upper class radical Francis Allen’s socialism, despite a bookshelf groaning under Marx’s Capital and selections from the Left Book Club, is described as emotional rather than economic in origin, “his real teachers were Auden, Isherwood, Lewis and Spender”.

Strikingly two of the most significant jurors are women, one an unmarried tobacconist “severe looking, very plain middle aged woman in black, wearing glasses”, and the other a wealthy widow, who stood out “like a single yellow flower in a green field among the dingy collection of mostly middle aged men with grey and red faces”. Given the property qualifications for jury service, it is not surprising that both the women were unmarried. Women had only begun to be serve of British juries in 1920, two years after the passing of the Sex Disqualification (Removal) Act, 1919 and were the subject of critique and caricature in public media as “lacking the constitution or intellect to serve”. Amid ten inattentive, indecisive and prejudiced male jurors, the two women stand out in the clarity of their decisions. Mrs Morris retorts “I don’t think women on juries look at evidence any differently to men”. I know we are supposed to be softer and more gentle and so on, but that doesn’t seem to me to have anything to do with it. Actually, we need the protection of law more than women do.”.

Raymond Postgate’s murder mysteries are not his best known works. A founding member of the British Communist Party, Postgate’s first major work was Bolshevik Theory (1920), a book appreciated by Lenin himself. In 1934, he would publish How to Make a Revolution, drawing on his own experiences as “labour agitator and editor of a communist newspaper” to discuss comparative revolutionary ideas (Marxism, Fascism, Anarchism, Syndicalism etc) and practices (general strikes, financial pressure, armed revolution) keeping in mind current developments in Germany and Russia. His magum opus, The Common People 1746-1946(1939) co-authored his brother in law GDH Cole, was a history of English working classes and political movements over 200 years. Ironically, and perhaps reflecting the peculiar nature of upper-class British communism, his most widely read work remains The Good Food Guide (1951) (originally titled, Society for Prevention of Cruelty to Food) complied because he was aghast at the standard of cooking in post-ward Britain and sought to “ to raise the standard of cooking in Britain’ and ‘to do ourselves all a bit of good by making our holidays, travels and evenings-out in due course more enjoyable”.

Despite his affinities to Fabian socialism and interest in Marxism, Postgate according to Marc Mullholland, insisted upon the agency of individual men and women, drawing attention to the “strength of will, the ability, the courage and even the arguments of his protagonists”. Given that the book began by invoking Marx’s , “conditions create consciousness”, much of the book is an investigation into the conditions behind the individuals who come to represent public will.

The Verdict of Twelve was set in the 1930s but published in 1940, at a moment with British victory in the 2^nd World War was less than certain and faced both a political and ideological challenge from both Germany and Russia. What was the value of the British system of justice? Alice Morris, the widow whose husband was killed by an anti-Semitic mob in London, fulminates remembering that her husband’s killers were never punished,

“the arm of the law was weak: after (her husband) died the police had explained to her again and again that they had not got the power to arrest all the likely suspects and force them to confess. In Germany, and for that matter in the United States, the law wasn’t made a fool of like that. They fetched in everybody they suspected and if the guilty did’nt confess right away, they were made to all right. Over there they knew how. But here they couldn’t even question people properly, so her husband was dead and not avenged”.

The equation of criminal justice in Nazi Germany and the USA might seem startling to the contemporary reader, but as James Whitman shows, American race, segregation and citizenship laws were eagerly studied by Nazi lawyers as models.  In the 1930s, questions of fair trialwere internationalized and debated across the public sphere, be it the ScottsboroTrials in the US or the Meerut Conspiracy Cases in India. 

D.N Pritt, the Labour MP and flamboyant lawyer (who as Manav Kapur noted makes an offstage cameo in the Verdict of Twelve as competition for the defense counsel, Sir Isambard for posts in a future Labour government), chaired an independent public enquiry in the Reichstag Fire. He also offered a defense of the fairness of the Stalin’s show trials in the 1936. Several left wing lawyers authored studies and defenses of Soviet Justice, contrasting it with the British system. During the Second World War, the stakes of presenting "British justice" as superior, and the nagging doubts that the system was flawed both become starkly apparent.

A Matter of Poison

Legal history has recently taken a toxic turn, with increasing attention to availability and use of poisons in crime, the development of forensic mechanisms to detect poisons and the "poison panics" fed by the popular press. Historians of science and media in Britain have pointed to the use of non-traditional poisons that were increasingly available to ordinary people in the form of arsenic (soaking fly papers), cyanide (destroying wasps nests) or eserine (eye drops)

 But could the suspects in the Arkwright household have known that ivy dust would be fatal? Or how was the doctor able to make the diagnoses in the post-mortem? The clue in this case is a newspaper cutting found in the house that reported a similar case of accidental poisoning in Essex, providing the knowhow to the poisoner. This was not an uncommon incident, as knowledge of poisons proliferated through both the media coverage of "poison panics" and the consumption of detective fiction.

Perhaps the most effective murder mystery has been Agatha Christie's The Pale Horse. As an apothecaries assistant during the First World War, Agatha Christie had a formbidale knowledge of poisons that she put to good use in her books. In Pale Horse, the poison of choice is Thallium, an odourless and tasteless poison that leaves little traces in the body but has a distinctive symptoms such as hair-fall.

There have been atleast three instances, where a Latin American woman was saved from slow poisoning, a baby in Qatar was stopped from accidental poisoning and an American serial killer caught, because the medical and police staff had read Christie's Pale Horse and were able to identify the symptoms of thallium poisoning.

In the next installment of Murder Mystery and Legal History, I'll turn to murders set amid decolonization in Asia and Africa.

PS: A note of thanks to Surabhi Ranganathan for talking through these ideas

LHR 37:4

Law and History Review 37:4 (November 2019) has just been published online.  Here’s the TOC:

Original Articles

Of “Masculine Tyranny” and the “Women's Jury”: The Gender Politics of Jury Service in Third Republic France
Sara L. Kimble

Disqualified Witnesses between Tannaitic Halakha and Roman Law: The Archeology of a Legal Institution
Orit Malka

Invited Articles

The Political Functions of (Premodern) Courts and Procedure and Questions of Comparative Method
Amalia D. Kessler

Disqualified Witnesses Between Tannaitic Halakha and Roman Law: A Response to Orit Malka
Paul J. Du Plessis

Roman and Jewish Law: Looking for Interaction in all the Right Places
Christine Hayes

Book Reviews

Rohit De, A People's Constitution: The Everyday Life of Law in the Indian Republic, Princeton, NJ: Princeton University Press, 2018. Pp. 312. $40.97 hardcover (ISBN: 9780691192550).
Arvind Elangovan

Xiaoping Cong, Marriage, Law, and Gender in Revolutionary China, 1940–1960, New York: Cambridge University Press, 2018. Pp. 346. $31.99 paper (ISBN 9781316602614).
Yue Du

Jennifer Altehenger, Legal Lessons: Popularizing Laws in the People's Republic of China, 1949–1989, Cambridge, MA: Harvard University Press, 2018. Pp. 406. $49.95 hardcover (ISBN 9780674983854).
Glenn Tiffert

Taisu Zhang, The Law and Economics of Confucianism, Cambridge: Cambridge University Press, 2017. Pp. 319. $116.00 hardcover (ISBN 9781107141117).
Maura Dykstra

Susanne Pohl-Zucker, Making Manslaughter: Process, Punishment and Restitution in Württemberg and Zurich, 1376–1700, Leiden: Brill, 2017. Pp. x, 335. $134.00 hardcover (ISBN: 9789004218215).
Harriet Rudolph

Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, Cambridge: Cambridge University Press, 2018. Pp. xvi, 310. $89.99 hardcover (ISBN 9781108419727); $29.99 paper (ISBN 9781108410168); $24.00 eBook (ISBN 9781108330978).
Ian Cram

Jennifer Pitts, Boundaries of the International: Law and Empire, Cambridge, MA: Harvard University Press, 2018. Pp. 304. $45.00 hardcover (ISBN 9780674980815).
Alexander Arnold

Kimberly M. Welch, Black Litigants in the Antebellum American South, Chapel Hill: University of North Carolina Press, 2018. Pp. 328. $39.95 hardcover (ISBN 9781469636436); $29.99 e-book (ISBN 9781469636450).
Allison Madar

Edward B. Rugemer, Slave Law and the Politics of Resistance in the Early Atlantic World, Cambridge, MA: Harvard University Press, 2018. Pp. 384. $39.95 hardcover (ISBN 9780674982994).
H. Robert Baker

Stephanie E. Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South, New Haven, CT: Yale University Press, 2019. Pp. 320. $30.00 hardcover (ISBN 9780300218664).
Julia W. Bernier

Anders Walker, The Burning House: Jim Crow and the Making of Modern America, New Haven, CT: Yale University Press, 2018. Pp. 304. $30.00 hardcover (ISBN 9780300223989).
Brandon Jett

--Dan Ernst

Weekend Roundup

• David Sugarman, professor emeritus at the law school at Lancaster University, has posted a truly lovely appreciation of the law W. Wesley Pue (1954-2019) that appeared in the Newsletter of the Research Committee of the Sociology of Law.

• Professor Sugarman’s assessment of the work of the late Christopher W. Brooks, entitled "Law, Law-Consciousness and Lawyers as Constitutive of Early Modern England: Christopher W. Brooks’s Singular Journey," published in Law, Lawyers and Litigants in Early Modern English Society. Essays in Memory of Christopher W. Brooks, ed. Michael Lobban, Joanne Begiato, Adrian Green (Cambridge: Cambridge University Press, 2019),  32-57, is not available online, but the abstract is here.

• Out online from Law and History Review and Cambridge Core: Law of Nations Theory and the Native Sovereignty Debates in Colonial India, by Zak Leonard, and Of “Masculine Tyranny” and the “Women's Jury”: The Gender Politics of Jury Service in Third Republic France, by Sara L. Kimble. 

• Joanna Grisinger (Northwestern), Kimberly Welch (Vanderbilt), Logan Sawyer (Georgia), and Kathryn Schumaker (Oklahoma), the co-organizers of the Law and History Collaborative Research Network of the Law and Society Association, have posted a call for legal history panels for LSA’s annual meeting in Denver, Colorado, May 28-31, 2020.  They also seek volunteers to join their ranks as co-organizers.

• We can't possibly keep up with historically informed, impeachment-related posts, but here's a few: U.S. Whistleblowers First Got Government Protection in 1777 (History).  HNN rounded up hot takes from seven historians.  A brief history of presidential impeachment (BBC History Extra).

• In other news: A descendant of a Virginia slaveholders sues a professor et al. for saying as much, apparently on the theory that in noting this and his opposition to the removal of Charlottesville’s statue of Robert E. Lee, the defendants claimed he was “a racist and an opponent of people of color” (Roanoke Times). Meanwhile, at Chapel Hill, UNC professors bring the history of Jim Crow to the present.

• The Franklin D. Roosevelt Presidential Library and Museum will present Freedom of Speech and the First Amendment, a conversation and book signing with Ronald K. L. Collins, coauthor of We Must Not Be Afraid to Be Free: Stories of Free Expression in America at 2:00 p.m. on Saturday, October 12, 2019.

• Over at Nursing Clio: "'Immoderate Menses' or Abortion? Bodily Knowledge and Illicit Intimacy in an 1851 Divorce trial" by Sara Lampert (University of South Dakota)

• CNN's "Black in America" series recently featured Martha Jones (Johns Hopkins), author of Birthright Citizens. Video here.

• From the Washington Post's "Made by History" section: David Farber (University of Kansas) on "how drug-related violence complicates criminal justice reform." And more.

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

Chin on Frampton, "The Jim Crow Jury"

Over at JOTWELL, you'll find an admiring review by Gabriel "Jack" Chin (UC Davis) of "The Jim Crow Jury," by Thomas Ward Frampton (Harvard Law School). The article appears in Volume 71 of the Vanderbilt Law Review (2018). Here's a taste of the review:

This article challenges the practice of non-unanimous criminal jury verdicts in Louisiana. In a certain sense, the article was irrelevant, moot, by the time it saw print. This is not because, say, it was about an election that was already over, or made an argument that the courts had definitively rejected. Instead, the claim in this paper was so factually, legally and historically compelling that even in draft form it spurred concrete action; thanks in part to this paper, the policy it analyzed was both declared unconstitutional by a court, and repealed by the voters. 

The article carefully recounts the history of the substantial elimination of African Americans from juries in Louisiana after Reconstruction. African Americans were, of course, a major part of the population of most of the former Confederate states, and amounted to a majority in Louisiana, Mississippi, and South Carolina. As Frederick Douglass wrote, “the liberties of the American people” depended on “the Jury-box” as well as “the Ballot-box,” if allowed to serve on juries, there was the danger that African American defendants would get a fair hearing, and that Whites (and White officials) accused of crimes against African Americans could be convicted. These were risks that White supremacists could not accept.

Read on here.

Jaffe on the jury in India

James Jaffe, University of Wisconsin, has published "After Nanavati" in the Economic and Political Weekly 53:32 (12 Aug. 2017). Here's an abstract:

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The famous Nanavati case of 1959 gave birth to two myths: that it was the last jury trial in India and that it was the prurient sensationalism of the new tabloid press, Blitz in particular, that corrupted the jury system and made its abolition necessary. It was actually the refusal of the government and the legal profession to confront class and caste differences in the courtroom, and not the popular press, that led to the abolition of the Indian jury.