Monday, September 30, 2019

Thank you, Caroline Shaw!

We are very happy to have had Professor Caroline Shaw (Bates College) join us as guest blogger in September 2019. Here's a round-up of her posts: 

Thank you for sharing your insights on everything from 19th-c. newspapers to student writing strategies, Prof. Shaw! 

--Mitra Sharafi

CFP: 2020 Law and Humanities Junior Scholars Workshop

We have the following call for papers:

Columbia Law School, Georgetown University Law School, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the nineteenth meeting of the Law and Humanities Junior Scholars Workshop, to be held at UCLA School of Law in Los Angeles, CA, on Sunday, June 7, and Monday, June 8, 2020.


The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities. In addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. We are especially interested in submissions from members of traditionally underrepresented groups. We welcome submissions from those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.)

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1000.


Papers must be works-in-progress that do not exceed 15,000 words in length (including footnotes/ endnotes); most papers selected for inclusion in recent years have been at least 10,000 words long. An abstract of no more than 200 words must also be included with the paper submission. A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting papers be careful to omit or redact any information in the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

Submissions (in Microsoft Word—no pdf files, please) will be accepted until December 2, 2019, and should be sent by e-mail to: Please be sure to include your name, institutional affiliation (if any), and phone and e-mail contact information in your covering email, not in the paper itself.

For more information, please send an email inquiry to

To see selected papers from some previous years’ workshops, go to:

Anne Dailey, University of Connecticut Law School
Katherine Franke, Columbia Law School
Sarah Barringer Gordon, University of Pennsylvania
Nan Goodman, University of Colorado
Ariela Gross, University of Southern California
Martha Jones, Johns Hopkins University
Naomi Mezey, Georgetown University Law Center
Paul Saint-Amour, University of Pennsylvania
Hilary Schor, University of Southern California
Norman Spaulding, Stanford Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, University of Southern California
Martha Umphrey, Amherst College

Conveners, 2020 Law and Humanities Junior Scholars Workshop

Sunday, September 29, 2019

Kadens on Twyne's Case at Georgetown Law, 10/25

We here at Georgetown Law had a great time Friday when my fellow LHB Blogger Mitra Sharafi inaugurated the Georgetown Legal History Colloquium with her paper, "South Asians and West Africans at the Inns of Court: Empire and Expulsion circa 1900."

We are also looking forward to our next session, on October 25, at which Emily Kadens,  Northwestern Pritzker Law School, will present "New Light on Twyne’s Case":
Edward Coke (NYPL)
In 1602, the English Court of Star Chamber decided the fraudulent conveyance case Attorney General v. Twyne & Pearce. The opinion offered factors to consider in identifying when the conveyance of goods or property was fraudulent. These factors have been so useful to judges that Twyne’s Case has proven to be among the most enduring old English cases in the common law. Courts still routinely cite it for its specific analysis, and scholars reference it frequently in their studies of fraudulent conveyance law. And yet the report of the case, written by Edward Coke (who was the Attorney General in the suit), upon which judges and scholars rely contains many inaccuracies and omissions. A large number of case documents from Twyne and related actions remain in the National Archives in London, however, and they permit us to flesh out the story behind this iconic case. It turns out that the allegedly fraudulent transaction and its aftermath were very complicated, involving a rural economy of credit without banks, the ties among and feuds between local gentry and their partisans, the late Elizabethan government’s terror of popular unrest, and possibly even official malfeasance. The article unpacks this convoluted tale to provide a more accurate account of the events leading to the lawsuit. In addition, it both (1) examines fraudulent conveyance cases before Twyne in an attempt to discern whether Twyne raised novel or particularly useful issues around which the Star Chamber could fashion its interpretation of fraudulent conveyance law, and (2) examines the immediate impact of Twyne’s new jurisprudence on fraudulent conveyance cases brought in equity courts in the years shortly after Coke’s report was published.
If you’re a legal historian or student who would like to attend, please contact me or my co-convener Anne Fleming at Georgetown Law.

--Dan Ernst

Saturday, September 28, 2019

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.
  • 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.
  • 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.
  • CNN's "Black in America" series recently featured Martha Jones (Johns Hopkins), author of Birthright Citizens. Video here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, September 27, 2019

Loeffler on Jewish International Legal Biography

James Loeffler, University of Virginia, has posted Promise and Peril: Reflections on Jewish International Legal Biography, which is forthcoming in Émigré Lawyers and International Law, ed. Annette Weinke and Leora Bilsky:
The burgeoning field of Jewish legal biography has produced a profusion of new studies of Jewish lawyers, lawyering, and legal thought in the international arena. This biographicalization of legal history promises obvious rewards. Biography can unlock deeper chains of influence and forgotten acts of invention. It possesses the moral potential to restore lives displaced or disrupted by the Holocaust to their rightful places in the history of the law and law’s memory. In our own fraught moment of historical reckoning, the European Jewish experience beckons as a rich historical resource with which to rethink transnational activism and individual agency, migration and statelessness, antisemitism and fascism. Yet biography is never a neutral art. The very choice of which life to deem worthy of attention depends on an often implicit set of assumptions about relevance and uniqueness that risk historical essentialism.

In this chapter, I explore these challenges by discussing the specter of “interest” in the writing of Jewish legal biography, past and present. I take “interest” in a variety of senses: the reasons why so many Jews gravitated in disproportionate numbers to international law as a profession; the biographer’s underlying motivation for choosing which specific Jewish legal lives to chronicle; and international law’s own image of itself as a neutral sphere of human action transcending political interests. Reviewing assorted key moments in the past century of attempts at Jewish legal biography, I posit that two different approaches have governed these biographical efforts vis-à-vis the concept of interest: a liberal cosmopolitan meta-narrative that frames international Jewish lawyering as a form of legalist anti-politics; and a liberal nationalist meta-narrative that hails Jewish politics as the proper starting point for a necessary legal reordering of the world. As we shall see, the links and tensions between these different kinds of interest are crucial to questions of method and meaning. They come together in the challenge at the root of all contemporary legal biography: How do we relate the one to the many without flattening individual lives into essentialist fables in the process?

Thursday, September 26, 2019

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

New in "The Docket": Originalism, Administrative Constitutionalism, and More!

The Docket, the digital imprint of Law and History Review, is out with a summer/fall 2019 double issue.  It includes posts from the contributors to LHR’s special issue on originalism and the authors of other recent articles.  It also publishes Administrative Constitutionalism and the History of the Administrative State, Reuel E. Schiller’s comment on papers by Joanna Grisinger, Jeremy Kessler, and William Novak at last years symposium on administrative constitutionalism at the University of Pennsylvania, q.v. here, here, and here.  The editors invite contributions.

--Dan Ernst

Conference: League of Nations and international law

[We have the following announcement.]

A conference on the League of Nations and International Law during the Interbellum will take place in Brussels on Oct. 25-26, 2019. It will focus on the role of international law and lawyers in the formation of the League and of the League in the development of international law. Registration is possible until Oct. 15, 2019 (registration form here). Here's the program, after the jump: 

Wednesday, September 25, 2019

An Essay Collection on US Church-State Relations

Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833, edited by Carl H. Esbeck and Jonathan J. Den Hartog, is available from the University of Missouri Press on November 1st but may be ordered now at a prepublication discount for $30.  Use code DRD2019 here or when calling 800-621-2736.
Disestablishment and Religious DissentThe American Revolution set in motion a round of constitution making in the colonies, several of which soon declared themselves sovereign states and severed all remaining ties to the British Crown. In forming these written constitutions, the delegates to the state conventions were forced to address the issue of church-state relations. Each colony had unique and differing traditions of church-state relations rooted in the colony’s peoples, their country of origin, and religion.

This definitive volume, comprising twenty-one original essays by eminent historians, law professors, and political scientists, is a comprehensive state-by-state account of disestablishment in the original thirteen states, as well as a look at similar events in the soon-to-be-admitted states of Vermont, Tennessee, and Kentucky. Also considered are disestablishment in Ohio (the first state admitted from the Northwest Territory), Louisiana and Missouri (the first states admitted from the Louisiana Purchase), Maine (carved from Massachusetts), and Florida (wrestled from Spain under U.S. pressure). The volume makes a unique scholarly contribution by recounting in detail the process of disestablishment in each of the colonies, as well as religion’s constitutional and legal place in the new states of the federal republic.
An endorsement:

“Myths, half-truths, and downright errors surround popular perceptions of the American separation of church and state. This outstanding book, with its first-rate roster of historians and legal scholars, demonstrates that American church disestablishment proceeded state by state, in many different ways and over a lengthy period of time. It will be of great interest to historians of the early United States and may be even more important for those who wrestle with challenging church-state questions in our own day.” —Mark Noll, professor of history, University of Notre Dame.

--Dan Ernst

Conlin, "The Constitutional Origins of the American Civil War"

Cambridge University Press has published The Constitutional Origins of the American Civil War (June 2019), by Michael F. Conlin (Eastern Washington University). A description from the Press:
In an incisive analysis of over two dozen clauses as well as several 'unwritten' rules and practices, The Constitutional Origins of the American Civil War shows how the Constitution aggravated the sectional conflict over slavery to the point of civil war. Going beyond the fugitive slave clause, the three-fifths clause, and the international slave trade clause, Michael F. Conlin demonstrates that many more constitutional provisions and practices played a crucial role in the bloody conflict that claimed the lives of over 750,000 Americans. He also reveals that ordinary Americans in the mid-nineteenth century had a surprisingly sophisticated knowledge of the provisions and the methods of interpretation of the Constitution. Lastly, Conlin reminds us that many of the debates that divide Americans today were present in the 1850s: minority rights vs. majority rule, original intent vs. a living Constitution, state's rights vs. federal supremacy, judicial activism vs. legislative prerogative, secession vs. union, and counter-majoritarianism vs. democracy.
A few blurbs:
The Constitutional Origins of the American Civil War is a must-read for anyone interested in either the constitutional dimensions of the conflict over slavery or the influence of constitutional arguments on public policy debates more generally.' -- Earl Maltz

‘Michael F. Conlin has given us an authoritative biography of the Founders' Constitution as the People's charter. His exhaustively researched and brilliantly argued book should lay to rest any doubt that the original Constitution was responsible for the Civil War.' -- H. Robert Baker
More information is available here.

-- Karen Tani

Tuesday, September 24, 2019

LAPA Fellows: Now Accepting Applications

[We have the following announcement.]

The Program in Law and Public Affairs (LAPA) at Princeton University invites outstanding faculty members of any discipline, independent scholars, lawyers, and judges to apply for residential fellowships for 2020-2021. LAPA Fellows devote the major portion of their time to their own research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance. In addition, LAPA Fellows are expected to be in residence for 10 months and participate in LAPA programs, including a biweekly seminar, a weekly luncheon discussion group, as well as some public events and conferences. The program does not support, as a primary activity, off-site fieldwork or work in remote archives, development of course materials, work in legal practice, or residence elsewhere.  [More information on LAPA, here.]

--posted by Dan Ernst

Mehrotra on Fellows on Cardozo on the Welch Tax Case

Ajay K. Mehrotra, Executive Director of the American Bar Foundation and professor at the  Northwestern Pritzker School of Law, has posted "Life in All Its Fullness": Cardozo, Fellows, and the Critical Context of Welch v. Helvering," which appears in Pittsburgh Tax Review 16 (2019): 151-159:
This brief essay comments on Mary Lou Fellows recent contribution to the edited volume, Feminist Judgements. It explores Fellows's main contribution to a feminist re-evaluation of U.S. Supreme Court Justice Benjamin Cardozo's opinion in the canonical tax law case, Welch v. Helvering. The essay stress Fellows's innovative mix of sociolegal historical analysis and a humanistic law and literature approach. It also contends that Fellows may not go far enough in her feminist re-evaluation of Welch.
--Dan Ernst

Snape, de Cogan and friends on revenue cases

Landmark Cases in Revenue Law, co-edited by John Snape (University of Warwick) and Dominic de Cogan (University of Cambridge) is out with Hart Publishing. From the press:
Media of Landmark Cases in Revenue LawIn an important addition to the series, this book tells the story of 20 leading revenue law cases. It goes well beyond technical analysis to explore questions of philosophical depth, historical context and constitutional significance. The editors have assembled a stellar team of tax scholars, including historians as well as lawyers, practitioners as well as academics, to provide a wide range of fresh perspectives on familiar and unfamiliar decisions. The whole collection is prefaced by the editors' extended introduction on the peculiar significance of case-law in revenue matters. This publication is a thought provoking and engaging showcase of tax writing that is accessible equally to specialists and non-specialists.
Table of Contents after the jump:

Monday, September 23, 2019

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

The Reverend James Kelly of Liverpool was not well liked. His spat with the church’s organist was bad enough, but Kelly’s diatribes against city officials drew public attention to this pugnacious – and litigious – clergyman. Seemingly anxious over the fate of Anglicanism, Kelly – who preached about the Protestant martyrs of Bloody Mary’s reign to a new generation – balked at the appointment of a Roman Catholic priest as chaplain in one of the city’s jails and railed against voters who had returned Liverpool’s first Jewish mayor that same fall. Not content to issue commentary from the pulpit, Kelly broadcast his opinions in the local newspapers.
While a number of local papers followed Kelly’s squabbles with local notables, Randall Sherlock’s Liverpool Mail did so with particular glee. Under the heading “Irish Scandal at St. George’s Church,” the weekly newspaper detailed the “wolfish”-ness of Irish clergy. It began with a diatribe against the Irish clergy in general and then proceeded to describe the barbarity of Kelly using the church for “potato-boiling” and his penchant for brawling (typical of Irish stereotypes as well) [1].
This fusillade of ethnic stereotypes did not even attempt a pretext of defending Catholics from Kelly. The attack on Kelly ran next to a column decrying fanatical Roman Catholic priests “running mad” overseas. Sherlock tried to apologize later. Kelly was unsatisfied, however, and sued. He won, but the jury awarded him a symbolically negligible single farthing. Kelly appealed for a new trial, believing himself entitled to higher damages. The justices of the Queen’s Bench disagreed.
I love the point in research where one gets to immerse oneself in a single case for some time. While this can happen regularly with high profile cases, it is rarer in the cases of ordinary men and women. Indeed, piecing together the ins and outs of a defamation case is not easy at all. Those which appear in law reports can contain more about precedent than on the case itself. Newspaper coverage can be as terse as a few lines, or can stretch out over multiple articles for months – even years – on end. Reconstructing a case can entail a great deal of additional research, and this is simply not feasible to do for over 600 cases. It’s as I concentrate on a cluster of cases that seem to illustrate a broader phenomenon that I really get to plunge into the weeds. I zeroed in on Kelly for an upcoming conference paper initially for pragmatic reasons; I knew that, in addition to the law report which I had in my electronic file, there were a further 80+ articles about the Rev. Kelly in the British Library Newspaper Database. There’s often quite a bit to be unpacked even from a few lines about a trial. There is all the more to be uncovered when one has not only 80 articles, but seemingly verbatim coverage of the trials among them.
If I were telling a history of case law, I would address the two legal issues at issue in Kelly v. Sherlock. First, the Queen’s Bench found that they had no standing to allow for a new trial solely on the basis of insufficient damages. That would illegitimately circumvent the jury’s role. Second, the judge at the assize level provides a particularly eloquent defense of a clergyman’s privilege of preaching to his flock as he sees fit. His phrasing would be republished in legal text books for years [2]. I suppose these points will make their way into my account, but I, like many of you, am more interested in the case’s implications for society at the time. I am want to explore through newspaper and legal reports how a community works out norms of proper authority and the acceptable limits on stereotyping. Here, as in quite a few cases involving the clergy, the question centered on the authority of the pulpit and the privilege (even the duty) of the clergyman (as opposed to the newspaper) to criticize different social groups as a whole. Was Kelly’s behavior a proper subject of public interest (as Sherlock claimed)? Even if it were, what were the boundaries between proper discussion and malice or ridicule?
During this period, standards for legal judgment of such cases were beginning to crystalize. That is important. More interesting still, are the disagreements, however, as one finds in the columns of the newspaper, among judges and juries, and between trials. It is in these moments that one finds critical tensions over who gets to constitute community, its boundaries, and the language that helps to keep it in balance. Perhaps not surprisingly, more elite commentators seemed embarrassed by both Kelly and Sherlock—though Kelly especially. His brand of evangelicalism did not sit well with those who prized cosmopolitan rationality and were more accepting of religious heterodoxy in civil society [3]. Elite commentators themselves were not entirely enlightened, however: keen to distance themselves from Kelly’s bigotry, these commentators attributed it to the “hot-blooded” Irish. Sherlock lost his case because his diatribe against Kelly the individual descended to ridicule; but more genteel anti-Irish stereotyping, which suffused a good portion of those 80+ articles, remained within the bounds of community acceptability [4].

[1] “Irish Scandals at St George’s Church”, Liverpool Mail, February 6, 1864, p. 5. The newspaper continued the diatribe a week later: “Irish Scandals at St George’s Church, No. II”, Liverpool Mail, February 13, 1864, p. 5.

[2] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686. See, for example, John Townsend, A Treatise on the Wrongs Called Slander and Libel and on the Remedy by Civil Action for those Wrongs, (London: Steven & Haynes, 1868), p. 354-355.

[3] See, for example: “The Finance Committee,” Liverpool Mail, April 9, 1864, p. 4; and “When a man embarks on a sea of controversy…,” The Englishman, November 5, 1864, p. 5.

[4] “The Rev. James Kelly,” Pall Mall Gazette, August 16, 1865, p. 1.  

--Caroline Shaw