Friday, July 27, 2012

Legal History Highlights at SHEAR

Last weekend, I was fortunate enough to have a chance to attend some of the numerous panels related to legal history on offer at this year's conference.  For the readers who couldn't make it, I thought I might summarize a couple of the panels that might particularly interest them.

On Saturday morning, Gary Gerstle (Vanderbilt) presented a precirculated paper based on a chapter from a book project on the history of the American state.  He emphasized the federal state's strengths and weaknesses, focusing particularly on issues of western expansion, settlement, and warfare in the antebellum era, and challenged the notion that the state was weak merely because it had few personnel and little centralized bureacuracy.  There were several commentators, and they focused on Gerstle's use of counterfactuals, his definition of the antebellum state as "liberal," and questions of whether one can speak of a central state in the antebellum United States at all.  The paper was provocative and intriguing, and I look forward to reading the final manuscript.

Later that day, Kevin Arlyck (NYU), Daniel Hulsebosch (NYU), and Timothy Milford (St. John's) presented papers in a session entitled "The Law and Post-Colonial America: Structures and Misadventures."  Kevin's paper described the attitudes of French consular officials toward federal courts in the 1790s, as the courts arbitrated ownership disputes over ships seized by French privateers.  Moving away from diplomatic discourse toward what he terms a more "work-a-day" approach to the law, he demonstrated that the French were upset at the courts' intrusion into what they regarded as a diplomatic concern for the executive, even while they pursued aggressive litigation strategies.  Dan's paper, part of a larger book project, addressed the international dimensions of the Constitution, describing it as a project to satisfy the United States's obligation under the law of nations and achieve the Enlightenment goal of peace through commerce embraced by Vattel and other writers.  He noted the existence of a substantial foreign audience for the Constitution, including a detailed examination of the document by the British Board of Trade, and outlined what he termed a "foreign ratification debate" that occurred in the 1790s.  Finally, Timothy's paper focused on two political trials in New York in 1806, U.S. v. Smith and U.S. v. Ogden, that grew out of the failed Miranda invasion of Venezuela.  The defendants, charged with violation of the Neutrality Laws, argued the expedition had been sanctioned by the Jefferson administration, and the jury evidently agreed, clearing the men in what Timothy described as an instance of jury nullification.  The cases raised some significant issues that we still grapple with, including problems of undeclared war, executive privilege, and inequity (since many of those roped into the expedition were Bowery Boys).

Finally, in the coveted Sunday morning slot were Jessica Lowe (who just finished at Princeton and will start teaching at UVa), Peter Wallenstein (Va. Tech.), and myself.  Jessica presented a portion of her dissertation on the criminal trial of John Crane, which began with a fight among reapers that turned deadly and ended in a special verdict by a jury torn between murder and manslaughter.  She used the incident to suggest that the divide between local and state/national law was not as sharp as historians have argued, and that local juries were concerned with the law, including the technicalities that supposedly only lawyers cared about.  As for Crane, he was ultimately hanged, a result Jessica suggests resulted because the law was both "too republican and not republican enough"--that is, Crane was hanged for the murder of a common laborer despite his social standing, but he did not benefit from the later reform when Virginia created second-degree murder, with prison instead of hanging as punishment.  Peter presented an overview on freedom suits from the Massachusetts suits in the 1780s that effectively abolished slavery in the commonwealth through Dred Scott, and beyond.   The paper surveyed the historical and historiographical landscape, noting the shifting circumstances--and declining availability--of suits throughout the antebellum South, but concluded by arguing for a broader definition of freedom suits, one that would encompass suits over segregation such as Roberts and thus link the antebellum suits with later efforts to secure black rights.  Finally, I presented work I've been doing on Natives and the Constitution, arguing for the important role that struggles over Indian affairs and anxieties over the power of Native nations on the frontier helped shape provisions of the Constitution and the struggle over ratification.

All in all, it was an enjoyable conference, and all these papers provided much food for thought. I look forward to reading the multiple projects that promise to emerge from them.