Saturday, May 30, 2020

Weekend Roundup

  • 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).
  •  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. 

Friday, May 29, 2020

Cammack on Popular Courts and Athenian Democracy

Daniela Cammack, University of California, Berkeley, has posted The Popular Courts in Athenian Democracy:
Accounts of Athenian democracy often emphasize the composition, procedures, and functions of the assembly: openness to all citizens, the right of each citizen to speak publicly, and the power of ordinary citizens to decide policy. Yet a series of legal reforms that enhanced the powers of judges at the end of the fifth century BC suggests that the Athenians perceived their popular courts as their most “demotic” institution, that is, the institution most likely to support the interests of ordinary citizens against the political elite and thus most crucial to democracy. Key features of the courts, such as greater numbers of poorer and older citizens, random selection, restrictions on speech, the secret ballot, and the power of ordinary citizens to decide justice, were more important to the idea and practice of democracy in Athens than has been recognized, with significant implications for understanding its differences from democracy today.
--Dan Ernst

Lev, "The Administration of Justice in Medieval Egypt"

New from Oxford University Press: The Administration of Justice in Medieval Egypt: From the 7th to the 12th Century (March 2020), by Yaacov Lev (Bar Ilan University). A description from the Press:
This book shows how political and administrative forces shaped the way justice was applied in medieval Egypt. It introduces the model that evolved during the 7th to the 9th centuries, which involved four judicial institutions: the cadi, the court of complaint (mazalim), the police/shurta (responsible for criminal justice) and the Islamized market law (hisba) administrated by the market supervisor/muhtasib.

Literary and non-literary sources are used to highlight how these institutions worked in real-time situations such as the famine of 1024-1025, which posed tremendous challenges to the market supervisors in Cairo. The inner workings of the court of complaint during the 11th-12th century Fatimid state are revealed through array of documentary sources. Further, non-Muslim communities, their courts and their sphere of responsibilities are treated as integral to how justice was dispensed in medieval Islam. Documentary sources offers significant insights into these issues and illuminate the scope and limits of non-Muslims self-rule/judicial autonomy.

In sum, the book shows that the administrative and political history of the judiciary in medieval Egypt implicitly and explicitly illuminates broader questions about religious and social forces that shaped the lives of medieval people in the Middle East, Muslims and non-Muslims alike.
More information is available here.

-- Karen Tani

Thursday, May 28, 2020

ASLH Graduate Student Funding Initiative

[Lauren Benton, President of the American Society for Legal History, has announced the following initiative.  Please note that eligibility is limited only to graduate students who are ASLH members.  DRE]

In recognition of the challenges to graduate students who are conducting legal history research when travel and funding are restricted and when many archives closed, the ASLH is offering a limited number of small grants to help support remote research.

The application is open to graduate students at any stage who are ASLH members. Each successful applicant will receive $1,000, to be used to obtain digital materials or to cover other expenses incurred while conducting summer research. The deadline is June 15, 2020. Apply here.

Please help ASLH expand this initiative. Anonymous donors have pledged a total of $3,000 to fund three graduate student grants. You can make a gift of any size to help us do more. To give, choose “Small Grants for Digital Legal History” from the dropdown menu on our "Donate" page.

[And, while we're at it: note that the June 1 deadline for various ASLH prizes and awards will soon be upon us.]

Fleming on the Public Interest in the Private Law of the Poor

Anne Fleming, Georgetown University Law Center, has posted The Public Interest in the Private Law of the Poor, which appeared in the Harvard Law & Policy Review 14 (2019): 159-203:
This Article begins to explore the uncharted connections between private law and poverty law, revealing a striking pattern that is only visible when these two bodies of law are viewed in the same frame. Many poverty law scholars have focused on the rules that regulate government assistance to the poor. They have left largely left unexamined the private law of the poor — meaning, laws that govern the private economic relationships of those living in poverty or in danger of falling into destitution. At the same time, the study of private law is flourishing among scholars who seek to understand the law’s vision of justice in relations between private individuals. But these scholars often seek that vision within the law’s doctrinal structures, which betray little overt concern with poverty.

Revealing the connections between the two fields, this Article shows how concerns about public spending on poor relief have shaped debates over the private law of the poor for over a century. It traces the recurrence of one rationale for regulation, the prevention of “pauperism,” that explicitly linked private law rules with poverty alleviation. Proponents of the anti-pauperism argument claimed that private law, if properly structured, could help prevent dependence on poor relief and thereby reduce the burden on the public fist of caring for poor households. Thus, they imagined the private law of the poor as one component of a larger system of rules designed to keep families self-supporting and off the poor relief rolls.

Drawing on original research across a range of source materials, this Article traces the history of the anti-pauperism argument and offers several explanations for its enduring appeal. It then describes the implications of this history for law and economics scholars, for present-day fights against economic inequality and in favor of regulatory reform, and for breaking down the silos between private law and poverty law.
--Dan Ernst

Gillespie on the causes of war (vol.4)

Alexander Gillespie (University of Waikato, New Zealand) has published The Causes of War, Volume IV: 1650-1850 with Hart. From the press: 
Media of The Causes of WarThis is the fourth volume of a projected five-volume series charting the causes of war from 3000 BCE to the present day, written by a leading international lawyer, and using as its principal materials the documentary history of international law, largely in the form of treaties and the negotiations which led up to them. These volumes seek to show why millions of people, over thousands of years, slew each other. In departing from the various theories put forward by historians, anthropologists and psychologists, Gillespie offers a different taxonomy of the causes of war, focusing on the broader settings of politics, religion, migrations and empire-building. These four contexts were dominant and often overlapping justifications during the first four thousand years of human civilisation, for which written records exist.
Further information on this volume is available hereIn 2011, we noted the publication of volumes 1-3 here.

--Mitra Sharafi

Wednesday, May 27, 2020

Legal History at LSA

A wholly virtual annual meeting of the Law and Society Association begins today.  Legal history sessions may be identified by searching here using CRN 44 for the Law & History Collaborative Research Network or “legal history” as a keyword. The CRN 44 sessions are:

Developing Scholarship in the Legal History of Journalism: Time to Talk
New Books in South Asian Legal Studies
New Histories of Legal Culture, Legal Consciousness, and the Rule of Law
Legal Histories of Criminal Law, Policing, and Imprisonment
The Carceral State in Crisis: Contested Penal Orders in the Late Twentieth-Century United States
Law, Rights, Identity, and Power
Histories of Legal Activism in the 20th Century United States
New Histories of Commercial Law
The Law of Hamilton: An American Musical

--Dan Ernst

Peer Review: A Casualty of the Pandemic?

I confess: even in the best of times, my first impulse upon spotting an email from a journal or book publisher or tenure and promotion committee that I just know is a request for peer review has not been to rejoice at yet another chance to serve and sustain the Republic of Scholars.  Now, with so many other unexpected demands on our time–personal as well as professional–how could we not be expected to reply “Sorry; just can’t,” hit send, and return to whatever mishegas had been enveloping us?

"The Reader" (A.J. Tobias; NYPL)
When the latest request arrived, I clicked “yes,” then paused to wonder why I did.  My first thought was simply that I could: with my children employed and out of the house and my family members healthy, the pandemic has disrupted my personal far less than many, many other legal historians; it was time for the fortunately situated to step up. 

A second thought was more self-ish.  The pandemic disrupted many of the behaviors through which I realize and affirm aspects my professional identity.  So much of my sense of myself as a teacher, for example, is borne of spontaneous interactions in the classroom; with the start of remote teaching, I wasn’t quite sure I was who I always thought I was until my students, eager to affirm their own emerging identity as professionals, reassured me with their enthusiastic engagement.  I’m not sure which of us was more grateful for the experience.

Peer review is an opportunity to affirm another part of a professor’s professional identity, that of a contributor to a scholarly discipline.  I know what you’re thinking, and it’s not wrong: “I can do that by producing my own scholarship, an activity that’s gotten a lot harder recently, in case you haven’t noticed.”

Well, of course you can, and it has.  And yet we all know that, however solitary it sometimes feels, scholarship is a collective activity, which we advance no more vitally than when we explain what a particular manuscript or body of work contributes to the whole.  Peer review, then, is a way to affirm the collaborative side of one's scholarly identity

A third thought used to strike me as alarmist, but, with so many stopping their ears to the warnings of epidemiologists, it now seems undeniable: credentialed knowledge is, if not quite an endangered species, under stress in an increasingly hostile epistemological habitat.  Such authority as it retains would collapse without collective, expert assessment.  Call it the Tinkerbell effect if you must, but a demonstrated belief in the value of peer review anywhere can help sustain it everywhere.

So when the next request arrives, if you just can't, don't.  But, if it's a close question, before declining consider what we would lose if peer review became a casualty of the pandemic.  

--Dan Ernst

Kimball & Coquillette on Harvard Law School, the Second Century

New from Harvard University Press: The Intellectual Sword: Harvard Law School, the Second Century, by Bruce A. Kimball (Ohio State University) and Daniel R. Coquillette (Boston College). A description from the Press:
By the late nineteenth century, Harvard Law School had transformed legal education and become the preeminent professional school in the nation. But in the early 1900s, HLS came to the brink of financial failure and lagged its peers in scholarly innovation. It also honed an aggressive intellectual culture famously described by Learned Hand: “In the universe of truth, they lived by the sword. They asked no quarter of absolutes, and they gave none.” After World War II, however, HLS roared back. In this magisterial study, Bruce Kimball and Daniel Coquillette chronicle the school’s near collapse and dramatic resurgence across the twentieth century.
The school’s struggles resulted in part from a debilitating cycle of tuition dependence, which deepened through the 1940s, as well as the suicides of two deans and the dalliance of another with the Nazi regime. HLS stubbornly resisted the admission of women, Jews, and African Americans, and fell behind the trend toward legal realism. But in the postwar years, under Dean Erwin Griswold, the school’s resurgence began, and Harvard Law would produce such major political and legal figures as Chief Justice John Roberts, Justice Elena Kagan, and President Barack Obama. Even so, the school faced severe crises arising from the civil rights movement, the Vietnam War, Critical Legal Studies, and its failure to enroll and retain people of color and women, including Justice Ruth Bader Ginsburg.
Based on hitherto unavailable sources—including oral histories, personal letters, diaries, and financial records—The Intellectual Sword paints a compelling portrait of the law school widely considered the most influential in the world.
Advance praise:
A major work of scholarship—forceful, original, compelling, and highly readable. The stories of the administration of Harvard Law School, of the rise and fall of its deans and their many tribulations, make for high drama. And the school itself is of course one of the key institutions of higher education and the legal profession, not only for its own achievements and standing, but because of its enormous influence on other schools.—Robert W. Gordon
More information is available here.

-- Karen Tani

Tuesday, May 26, 2020

Zeitlow on Dr. King and Worker's Rights

Rebecca E. Zietlow, University of Toledo College of Law, has posted "Where Do We Go From Here?" Dr. Martin Luther King, Jr. and Worker's Rights, which is forthcoming in volume 14 of the Harvard Law & Policy Review:
This article considers the important links between racial equality and workers’ rights in Dr. Martin Luther King, Jr.’s activism. Dr. King understood the connection between racial and economic subordination — he also understood that achieving racial justice would not be possible without achieving economic justice through a coalition between the civil rights and labor movements. This article chronicles Dr. King’s alliances with labor activists as well as the tensions between organized labor and civil rights activism. This article also highlights how Dr. King’s emphasis on labor activism informed his approach to fighting against segregation and on behalf of voting rights for African Americans.

For Dr. King, true racial equality was inseparable from economic empowerment.

Dr. King’s insight that racial discrimination was linked to the economic subordination of workers followed a great tradition of political activism within the United States on behalf of racial equality and the rights of workers. This article argues that advocates for workers’ rights and racial equality have been most successful when they worked together because race discrimination has been integrally connected to the exploitation of workers throughout our country’s history. Drawing on historical research, this article develops the links between labor movements and antislavery and civil rights activism in order to place Dr. King’s commitment to the rights of workers in context and to point the way forward. Activists in the fight for racial equality must heed Dr. King’s advice and form coalitions with labor organizers to fight the combined effects of racial injustice and economic subordination.
--Dan Ernst

Tan, Bui, and friends on constitutional foundings in Southeast Asia

Kevin Y. L. Tan (National University of Singapore and Nanyang Technological University) and Bui Ngoc Son (Chinese University of Hong Kong) co-edited Constitutional Foundings in Southeast Asia, which came out with Hart Publishing in 2019. From the press: 
This volume focuses on the making, nature, and role of the first modern constitutions at the founding of the modern nation-states in Southeast Asia. These historical essays add richly to our understanding and appreciation of the founding moments and to the theory and practice of constitutionalism in these states. This volume makes three significant contributions. First, it helps plug the wide knowledge gap in comparative constitutional history in Southeast Asia. Second, it furthers our understanding of contemporary constitutional practice and also anticipates possible developmental trajectories in light of the foundational values embedded in and manifested through these constitutions. Third, through the comparative historical study of these early constitutions, plausible theoretical insights may be gained to further our understanding of Southeast Asia's constitutional history. The book is essential reading for those wishing to obtain a deeper understanding of the constitutional foundings of Southeast Asia.
Table of Contents after the jump:

Monday, May 25, 2020

Murder Mystery, Legal History Part II: Death in the Colony







“A flock of pelicans, their white wings dyed apricot by the setting sun, sailed low over the acacia trees of the garden with a sound like tearing silk, and the sudden swish of their passing sent Alice’s heart into her throat and dried her mouth with panic”
            The opening lines of M.M. Kaye’s Death in Kenya, transports the reader into Flamingo a sprawling plantation on the banks of Lake Naivasha dominated by the huge sprawling single storied house with “thatched roofs, wide verandahs and spacious rooms paneled in undressed cedar wood, that defied all architectural rules and yet blended with the wild beauty of the Rift Valley” dominated by the septugenaraian Kenyan settler, Lady Emily De Brett, tramping about the estate in her scarlet dungarees, flashing diamonds and a pith helmet. Despite the gardens bursting with color, frolicking hippos, tea on the verandah, the army of servants, the heady round of picnics to the Crater Lake and sundowners with friends, there’s at atmosphere of lurking menace. The year is 1955, and despite the official narrative being that the Mau Mau rebellion had been crushed, characters worry about the Mau Mau on the run or being disguised among the plantation staff, particularly rumors around the mysterious “General Africa” (a reference to Waruhiru Itote, the real life Mau Mau fighter who went by the name General China) who was rumored to be in hiding near Naivasha. Flamingo itself had successfully held off a Mau Mau attack in the past, though it’s manager had died in the crossfire. As the settlers drink they umpteenth gin and tonic, they look over their shoulders convinced that the “secret ceremonies, extortion, intimidation-same old filthy familiar ingredients simmering away again ready to boil over in the drop of the hat”. The lurking tension spills into outright fear, as one by one characters are murdered, and while it could well be the Mau-Mau (the choice of weapons includes a panga and an poison tipped Masai arrow), it’s equally likely to be one of the small community of Europeans living around the plantation.

I read Death in Kenya in the Fall of 2016, after a day’s research at the National Archives of Kenya in Nairobi where the files I was reading portrayed another kind of terror, unleashed upon the Kenyan population by the colonial state. As documented extensively by scholars like Caroline Elkins and David Anderson and leading up to a High Court case for reparations, the Kenyan Emergency saw the suspension of civil liberties, tens of thousands of deaths, the imprisonment of around 400,000 Kikuyu into concentration camps and “enclosed villages, torture, beating, mutilation, castration and sexual assault. Ostensibly to curb the Mau Mau insurgency, a guerilla movement prompted by the expropriation of land by White settlers, the retaliation attacked not  just the Mau Mau gureilla fighters but a large majority of the civilian population. By 1957, in a secret memoranda, the Attorney General advised the Governor that the situation was prompting “comparisons with Nazi Germany” and argued for a legal regulation of torture, famously saying those who administerviolence … should remain collected, balanced and dispassionate".
How does one read light fiction set amid such unspeakable violence? At first, Kaye’s sympathies with the settlers seem clear, as she says in the Authors note, much of opinions voiced by her characters were taken from life, and very few of the Kenya born settlers would believe the “winds of change” would blow strongly enough to blow them out of the country they looked upon as their own. This comes through brutally when Drew Stratton, the swarthy sunburned settler, who walked like a cowboy displays a tally of “Mau Mau” kills on the verandah to the queasy Victoria Caryll, newly arrived from England. Stratton and his friends are reported to have gone underground, with blackface, to infiltrate the Mau Mau groups. Describing the horrors of the Mau Mau, and the losses suffered by loyalist Africans and Europeans, Stratton roughly rejects Victoria’s plaintive statement that “it is their country” making the case for settler colonialism in the crudest possible terms, “I want to stay here, and if that is immoral and indefensible colonialism, then every American whose pioneer forebears went in the covered wagon to open up the West is tarred with the same brush; and when the UNO orders them out, we may consider moving”.

            It is here, in its crudest and most violent articulation, that the uncertainties of the settler imagination are also highlighted. The awareness that their methods are under critique, the role of the UN and the shift in power towards the United States. The self-awareness comes through in Stratton’s apology for “the grossly oversimplified lecture on the Settler’s point of view”.  Settler society is seen as a corrupted European society, as the gentle Alice de Brett shudders at the “casual attitude of most women towards firearms and the sight and smell of blood”. Morals are seen as lax, and several married characters are having affairs outside their marriages. Kenneth Brandon, the Byronic 19 year old, “capacity for falling in love with other men’s wives” makes him qualified as the right type for Kenya.
            Kenyan settlers, particularly the hedonistic aristocrats who belonged to the Happy Valley Set had making international scandal pages including its very own real life murder mystery, when the  Earl of Errol was foundmysteriously shot in his Buick in Ngong road. His lover’s husband another British aristocrat was tried and acquitted of his murder and would later commit suicide. As Lady De Brett asserts, it would unlikely that any jury in Kenya would find her (and by implication any prominent settler) guilty of murder. Martin Weiner and Elizabeth Kolsky have documented that Europeans were rarely found guilty of violence in colonial trials. The impunity of white violence and close, besieged nature of settler society, also makes it awkward for the police inspector to conduct his investigation having to interrogate and detain his friends and social acquaintance.
While Kaye had spent a short period of time in Kenya, her powers of observation on local culture are acute and are reflected in the book. A key alibi is established by several African staff members hearing a suspect play a piano, and when the suspect suggests that “none of the servants would know the difference between one tune and another”, the inspector points out that the average African has a better ear for music than one imagines. Peter Leman’srecent work traces how orality in accounts of legal trials has the “the capacity to challenge the narrative foundations of colonial law and its postcolonial residues and offer alternative models of temporality and modernity that give rise, in turn, to alternative forms of legality”. Songs, verbal oath takings and music formed a key part of the evidence in the famous Kapenguria trial, which sought to prosecute Jomo Kenyatta and other Kikuyu leaders for managing the Mau Mau. 
The violence against Africans during the Emergency is an uncomfortable reminder offstage, as a character worries about her maid giving evidence to the police, “they may take here away and hold her for questioning. You know what they are like”. Another notes that the police had roped into the house servants for questioning and turned the labour lines on the plantation “into the nearest thing to a concentration camp”. The role of the Brandons, Flamingo’s neighbours,  in the brutal suppression of the revolt, offers a possibility that the Mau-Mau might take revenge by putting poison in their medicine box. As Lady Brett acknowledges, there are things worse than murder, including, “trials, hanging, suspicion, miscarriage of justice”.
             As Erik Lindstrum shows in his recent article, British knowledge about violence in the colonies was both widespread, but also “fragmented and ambiguous”. British newspapers trying to position themselves as neutral failed to convey the extent of colonial violence and some of the most widely circulated narratives were framed by fiction and film. The solution to Death in Kenya (not to give away spoilers) is an ambiguous statement to the question of the settler colony. The serial murders insanity is driven by their desire to mark out a permanent presence in the colony, to master its future, even though it requires the sacrifice of English men and women. The murder is also revenged by an African, posing a problem for the British policeman, who don’t know what to do with an African who had killed a European but in the process saved the life of another.  
Murder by the Panga: The Bassan Murder Case

In 1960, the plot of Death in Kenya seemed to take real life turn. Satyavadi Bassan, a young Kenyan-Indian and her two infant daughters were found hacked to death by a panga in their car on the road to Nyeri. Pyarelal Bassan, her husband and her four year old daughter were also found gravely injury and recounted at attack by three African men who had stopped their car, demanded money and attacked the family. The Indian Association of Nyeri rejected the idea of a robbery gone awry and insisted the murder was political, linking it to secret gatherings of Africans and the targeting of Indians as “outsiders” and “parasites” in Kenyan nationalist rhetoric. The use of the panga (like the wounds of Alice de Brett in Death in Kenya) were seen as “reminiscent of the Mau Mau killings”.  As Sana Aiyyar in her study of the Indian diaspora in Kenya notes, “the use of the panga and mutiliation..became the catalyst for politicization of the Nyeri murder”. Aiyar argues that wile the Indian leaders in Kenya attacked African leadership for not condemning the violence, the emergent African political leaders also assumed that the attack was carried out by Africans and marked a “resurgence of ritualistic violence that threatened their leadership”
            The subsequent trial and investigation revealed, as in Kaye’s who-dunnit, the crime originated neither from economic reasons nor the political churn of nationalism,  but from a domestic setting. Pyarelal Bassan was found to have hired the men to murder his wife and children, and the trial hinted at both Pyarelal and Satyavati having extra-martial liaisons. Once again we see a crime that originates in the "malice domestic" of a settler society, being initially framed as a crime arising out of the violent churn of African politics.

Crime in the Colony:   Elspeth Huxley’s Murders in Chania 
Colonial Kenya also forms the setting for a series of murder mysteries by ElspethHuxley. Huxley, the author of over 42 books is best known for her memoir, TheFlame Trees of Thika, serialized in television and frequently analysed by literary scholars working on colonialism, memory and nostalgia. Huxley’s murder mysteries set in the fictional country of Chania (standing in for Kenya) draw richly from colonial legal sources.

            Katherine Luongo opens her compelling study of Witchcraft and Colonial Rule in Kenya, 1900-1950 with an extract from Huxley’s first crime novel, Murder at Government House (1937), a long digression from the process of investigating the murder of the Governor of Chania in his study. 
“included a lengthy, elaborate anecdote about another high-profle murder case in the colony, the “Wabenda witchcraft case.”  Chania’s secretary for Native Affairs recounted the local narrative of the “Wabenda witchcraft case” to the detective in charge of investigating the governor’s murder: The Wabenda, among whom witchcraft was more strongly entrenched than among most Chania tribes, had put to death an old woman, who, they alleged, was a witch. The woman had stood trial before the elders and the chiefs of the tribe, had been subjected to a poison ordeal, and found guilty of causing the death of one of the head chief’s wives and the deformity of two of his children. Then, following the custom of the tribe, she had been executed, in a slow and painful manner. . . . It was a horrible death, but meted out after due trial, and for the most anti-social crime in the Wabenda calendar.  After outlining the circumstances surrounding the witch-killing, the secretary for Native Affairs turned to how Wabenda and British conceptions and processes of justice collided in the context of the case. He elaborated, The chiefs and elders were put on trial for the murder of the old witch. Forty-i ve of them appeared in the dock – a special dock built for the occasion. They did not deny that the witch had died under their instructions. They claimed that in ordering her death they were protecting the tribe from sorcery, in accordance with their obligations and traditions. They were found guilty and condemned to death. There was no alternative under British law; the judges who pronounced sentence did so with reluctance and disquiet.
But as the secretary for Native Affairs noted, the “Wabenda witchcraft case” was not easily resolved by the sentencing of the forty-i ve Wabenda in the British courts. He noted, The Government was in an awkward position. It could not, obviously, execute forty-five respectable old men, many of them appointed to authority and trusted by the Government, who had acted in good faith and according to the customs of their fathers. In the end it had compromised. Thirty-four of the elders had been reprieved and pardoned. Ten had been reprieved and sentenced to terms of imprisonment. In one case, that of the senior chief who had supervised the execution, the death sentence had been allowed to stand. 4 Finally, the secretary for Native Affairs addressed some of the ways in which the case was figured in additional “judicial settings”; in the Supreme Court of Chania, in the governor’s Privy Council, and in the equally salient “courts of opinion” of various metropolitan and Chanian publics. He explained, The case was not yet over. The sentenced chief, M’bola, had appealed to the Supreme Court, lost, and finally appealed to the Privy Council. Feeling in native areas ran high. Agitators had seized upon the case as an example of the tyranny and brutality of British rule. Administrators feared serious troubles should it be carried out.”
As Luongo asks,  “Why would a story of witchcraft, law, and the colonies have resonated with British reading publics at home and abroad?”. She does on to show that these fictional events mirrored  a real life witch killing case in the 1930s, i.e. the Wakamba Witch trials, which “long-standing, circuitous, imperial story of African witchcraft beliefs and practices challenging the ability of colonial states to achieve law and order in the British African Empire”.  Huxley’s who-dunnits are not Mayhem Parva imported to the colony, but arise from it’s settings. For instance, in Death of a Safari, a lions kills and a charging buffalo are turned into weapons of murder. or in African Poisons shows extensive knowledge of land use rights, animal husbandry and African toxins.

Huxley, unlike Kaye, was a long term resident in Kenya and her murder mysteries offer better rounded characters and complex accounts of the changing political situation. The women are not damsels in distress, but professionals. 
In Murder in Government House, the detective is assisted by Olivia Brandeis is an anthropologist who documents a Kenyan secret society with rituals of seizing power from the English (possibly inspired by Mary Leakey), the safari in Murder on an African Safari (1938) is led by the dashing aviatrix (modelled on real life Beryl Markham) who flies ahead to spot the wild game; The African Poison Murders (1939) has a female solicitor trying to set up a practice (modelled on K.P Hurst, the sole female Barrister in Kenya who was one of the rare European lawyers who had engaged to defend Africans accused as Mau-Mau) and Thomasina Labouchiere is an assistant to the British commission negotiating independence an at the Incident at the Merry Hippo (1963) (mirroring perhaps Huxley’s own experience as an independent member of the commission for the Federation of Rhodesia and Nyasaland)  . Her who-dunnits spaced out over two decades offer an acutely changing awareness of politics, for instance in African Poison Murders tensions break out between English and German settlers, when a possible Nazi sympathizing German is found poisoned on his farm. She demonstrates acute insights into the nature of the colonial bureaucracy, outlining the differences between different kinds of training in Murder in Government House, or the awareness that the Governor can suspend the right of a solicitor to practice in African Poison Murders.
The Historian as a Detective: Richard Rathbone's Murder and Politics in Colonial Ghana


How can legal historians draw from structures of detective novels? In many ways, their methods of collecting and evaluating evidence, building off fragments and constructing the "who dunnit" is the same. One model is Richard Rathbone's Murder and Politics in Colonial Ghana,  which as reviewer notes, “is not the West African companion to Elspeth Huxley's East African whodunnit, Murder at Government House. Nor, despite its trailer of 'Colonial Ghana' (itself a curious chronological byline), is it a critique of Colonial Office administration” Rathbone uses the “ritual murder” of an Ghanian chief during a royal funeral procession, and subsequent investigation and trial to trace how traditional and new Ghanian elites engaged with the local and imperial administration during the transition from late colonial rule to independence. The book is also a whodunit, as Rathbone seeks to also solve the mystery of Akea Mensa’s death (aided by none other than mystery writer and British civil servant P.D James, who is acknowledged in the book). Did Mensa really die or did he go into exile? Was this suicide, an accidental fall into a mineshaft or a public lynching? Was the motive “ritual murder” or unpopular treasury reforms?

In my next post, I'll return to M.M Kaye's sojourns to Zanzibar, Cyprus, India and Germany and reflect upon the absence/presence of empire in the Golden Age Detective Novel 

PS: I am grateful to Surabhi Ranganathan for talking through some of these ideas.

Bernstein's "Education of John Adams"

R. B. Bernstein has published The Education of John Adams (Oxford University Press):
The Education of John Adams is the first biography of John Adams by a biographer with legal training. It examines his origins in colonial Massachusetts, his education, and his struggle to choose a career and define a place for himself in colonial society. It explores the flowering of his legal career and the impact that law had on him and his understanding of himself; his growing involvement with the American Revolution as polemicist, as lawyer, as congressional delegate, and as diplomat; and his commitment to defining and expounding ideas about constitutionalism and how it should work as the body of ideas shaping the new United States.

The book traces his part in launching the government of the United States under the U.S. Constitution; his service as the nation's first vice president and second president; and his retirement years, during which he was first a vexed and rejected ex-president and then became the revered Sage of Braintree. It describes the relationships that sustained him - with his wife, the brilliant and eloquent Abigail Adams; with his children; with such allies and supporters as Benjamin Rush and John Marshall; with such sometime friends and sometime adversaries as Benjamin Franklin, George Washington, and Thomas Jefferson; and with such foes as Alexander Hamilton and Timothy Pickering.

Bernstein establishes Adams as a key figure in the evolution of American constitutional theory and practice. This is the first biography to examine Adams's conflicted and hesitant ideas about slavery and race in the American context, raising serious questions about his mythic status as a friend of human equality and a foe of slavery. This book's foundation is the record left by Adams himself-- in diaries, letters, essays, pamphlets, and books. The Education of John Adams concludes by re-examining the often-debated question of the relevance of Adams's thought to our own time.
 Here are some endorsements:

"This brilliant book is exactly what all who are interested in the history of the early American Republic could want. Bernstein's cogent presentation gives us a much-needed fresh look at John Adams, the man most responsible for constitutional independence." -- Annette Gordon-Reed , Charles Warren Professor of American Legal History, Harvard Law School, and Professor of History, Harvard University

"In many ways, John Adams is the Rodney Dangerfield of America's Founders: underestimated, underplayed, and never getting enough respect. This book offers much, much more. One of the nation's leading scholars of the Founders and their influence, Bernstein masterfully captures Adams in all his complexity. Far more than a rehearsal of the facts and accomplishments of Adams's life, this book reveals a real person: a man of tremendous intellectual curiosity and occasionally dogmatic politics who struggled to chart his path, fretted with insecurities, and wrestled with his place in history. Anyone seeking to understand the politics and passions of America's founding will be well served by reading this admirably concise and balanced book." -- Joanne B. Freeman , Professor of History and American Studies, Yale University

"What did the law mean to a revolutionary like John Adams? With a keen eye on his public and private lives, R. B. Bernstein traces Adams's reinterpretation of political frameworks such as monarchy and constitutionalism. Readers will savor this vivid portrait of the candid lawyer, diplomat, and president. It is always a delightful task for us to think alongside Adams, and Bernstein's Education is exceptionally lucid and enjoyable in contextualizing his legacy." -- Sara Georgini , author of Household Gods: The Religious Lives of the Adams Family

"A thoughtful account of John Adams' ideas and life, warts and all." -- Kirkus Reviews

"This work sets itself apart from other Adams biographies in its detailing of its subject's vision of governance, as well as his role as a legal and constitutional scholar, compared to other Founding Fathers, such as George Washington, Samuel Adams, James Madison, Alexander Hamilton, and, notably, Thomas Jefferson. Abigail Adams, John's wife, is also given consideration as an intellectual equal...An accessible and highly recommended biography." -- Library Journal

--Dan Ernst

Sunday, May 24, 2020

Woeste on Trump and Ford

Victoria Woeste, the author Henry Ford's War on Jews and the Legal Battle against Hate Speech, has  posted threaded tweets on Ways that Donald Trump is just like Henry Ford, And Why That’s Not Good for American Democracy.

Update: An expanded version of Woeste's thread now appears on HNN.

--Dan Ernst

LHR 38:2

Law and History Review 38:2 (May 2020) is now available online.  Here are the contents:

In This Issue

Litigants in the English “Court of Poor Men's Causes,” or Court of Requests, 1515–25
Laura Flannigan

Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English
Ian Williams

Law of Nations Theory and the Native Sovereignty Debates in Colonial India
Zak Leonard

Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia
Priyasha Saksena

Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903–58
Rabiat Akande

Book Reviews

Stephan Dusil, Wissensordnungen des Rechts im Wandel: Päpstlicher Jurisdiktionsprimat und Zölibat zwischen 1000 und 1215. Leuven: Leuven University Press, 2018. Pp. xii + 629. €135.00 hardcover (ISBN 9789462701526); €95.00 paper (ISBN 9789462701335); €71.00 ebook (ISBN 9789461662853).
Atria A. Larson

Charlene M. Eska, A Raven's Battle-Cry: The Limits of Judgment in the Medieval Irish Legal Tract Anfuigell. Leiden: Brill, 2019. Pp. xiv + 338. $119.00 hardcover (ISBN 9789004391987)
Joe Wolf

Zachary Chitwood, Byzantine Legal Culture and the Roman Legal Tradition, 867–1056. New York: Cambridge University Press, 2017. Pp. 236. $105.00 hardcover (ISBN 9781316861547).
Paolo Angelini

Francesca Trivellato, The Promise and Peril of Credit: What a Forgotten Legend about Jews and Finance Tells Us about the Making of European Commercial Society. Princeton, NJ: Princeton University Press, 2019. Pp. xiv + 405. $45.00 hardcover (ISBN 9780691178592); $27.99 ebook (ISBN 9780691185378).
Rowan Dorin

James E. Lewis Jr., The Burr Conspiracy: Uncovering the Story of an Early American Crisis. Princeton, NJ: Princeton University Press, 2017. Pp. viii + 713. $35.00 hardcover (ISBN 9780691177168); $21.95 paper (ISBN 9780691191553).
R. B. Bernstein

Michel Gobat, Empire by Invitation: William Walker and Manifest Destiny in Central America. Cambridge, MA: Harvard University Press, 2018. Pp. 384. $41.00 hardcover (ISBN 9780674737495).
Timo Schaefer

Philip Thai, China's War on Smuggling: Law, Economic Life, and the Making of the Modern State, 1842–1965. New York: Columbia University Press, 2018. Pp. 408. $60.00 hardcover (ISBN 9780231185844).
Diana S. Kim

Julian Lim, Porous Borders: Multiracial Migrations and the Law in the U.S.–Mexican Borderlands. Chapel Hill: University of North Carolina Press, 2017. Pp. xv + 302. $32.50 hardcover (ISBN 9781469635491).
Felice Batlan

Ken I. Kersch, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. New York: Cambridge University Press, 2019. Pp. xviii + 407. $84.99 hardcover (ISBN 9780521193108); $34.99 paper (ISBN 9780521193109).
Logan Everett Sawyer

--Dan Ernst

Saturday, May 23, 2020

Weekend Roundup

  • Katrina Jagodinsky will use a three-year, $460,000 grant from the National Science Foundation to explore how habeas corpus was used in the American West by various marginalized groups to claim freedom and establish their rights between 1812 and 1924.”  More.
  • Over at the blog of the Historical Society of the New York State Courts is a post summarizing John Oller’s article, forthcoming in Judicial Notice, entitled “George Wickersham: ‘The Scourge of Wall Street.’”  The video of the Society’s webinar, "Lessons Learned from the 1918 Flu Pandemic," is here; its video, "The Evolution of Slavery, Abolition in NY, and the NY Courts: The Lemmon Slave Case," is here.
  • Sadly but not surprisingly, the Law Books course at Rare Books School, taught by Mike Widener (assisted by Ryan Greenwood) has been cancelled for summer 2020. 
  • If you're not already zoomed out: Fridays at 6pm Eastern Time is Drinking with Historians, hosted by Matt Gabriele (Virginia Tech) and Varsha Venkatsubramanian (UC-Berkeley) and with a different guest each week. Registration is here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, May 22, 2020

West and Lithwick on John Paul Stevens

Sonja West, University of Georgia School of Law, and Dahlia Lithwick, Senior Editor, Slate, have posted The Paradox of Justice John Paul Stevens, which appears in the Northwestern University Law 114 (2020): 1849-1857:
Justice John Paul Stevens (LC)
In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost.

Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensus building leadership. For every tribute depicting him as a moderate around whom the Court shifted rightward, there seemed to be another painting him as a jurist who drifted leftward. He was a Republican yet also a liberal giant. He was deeply patriotic, while also a sharp critic of governmental institutions.

So who was the real Justice Stevens? How can we possibly be expected to understand his legacy if we can’t even agree on the basic characteristics he embodied? Which of these portraits is correct?

The answer is that they all are. If Justice Stevens were a multiple-choice test, the right answer to pretty much every question would likely be “all of the above.” He was, in so many ways and at so many times, both a thing and also the opposite of that thing. And the secret to understanding Justice Stevens’s legacy is to appreciate how his seemingly paradoxical nature was, in fact, his greatest strength.
--Dan Ernst

Stella Akin (1897-1972)

[My annual exam in American Legal History also includes a biographical essay.  Last year’s was on the father-daughter duo Gaius and Jane Bolin; otherwise, I just have my students consider a single person (as here and here).  With the help of Hannah Kim-Miller, Special Collections Librarian at the Georgetown University Law Library, I did pretty well on this year’s subject--an unsung member of "Portia's Deal"--but, as you’ll see, holes remain that require presently inaccessible sources to fill.  DRE]

Stella Akin (1897-1972) was the first of four daughters born to a businessman and his wife (both white) in Savannah, Georgia, a coastal city located across the Savannah River from South Carolina.  She attended public schools and attended a local business college for a year to learn stenography.  In 1914, at age 17, Akin took a job in the law office of D.H. Clark, whom she recalled as “a nice old codger.”  When Clark learned she intended to prepare for the bar by reading law in his office after hours, he voiced his disapproval “with amazing strength and frequency.” In time, however, he came around.  First, he told her she was reading the wrong books and pointed out the right ones.  Next, he started quizzing her on her reading.  At last, he mapped out a complete course of study for her. 

The law was far from an obvious career choice for a female Georgia teenager in 1914.  In 1911, Atlanta newspapers that local courts had refused the admission of a female graduate of the local law school.  In the same year, an attempt to overturn the ban in the state legislature failed.  When, in 1912, the Georgia State Bar Association put the issue on the agenda for its annual meeting, the result was a vote in the negative.  One lawyer opined:
We must rally, men of the Bar of Georgia.  In this State at least, we have kept our profession as a refuge....  In it, we daily strive in forensic combat to settle causes by reason and precedent.  Shall it come to pass that they shall be won by curves and complexions, and lost by our lack of pulchritude?  Jury trials now have their grave faults, yet [they] cannot approach in fundamental catastrophe the grievous hour when languorous eye and scarlet lip shall deprive of liberty and property, or open-work stockings interpret the Constitution.
Not until August 1916, well after Akin commenced her studies, was a bill allowing women to be lawyers enacted.  Georgia women would not get the vote until the ratification of the Nineteenth Amendment in 1920.  They would not serve as jurors until 1954.  Still, in December 1917, the day before her twentieth birthday, Akin was admitted to the Georgia bar, the first woman to do so in Savannah.

Thursday, May 21, 2020

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 20th 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 20th 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 19th 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 19th 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 20th 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 20th 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 2nd 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