Bohrer on the Attempt to Try the Kaiser

Ziv Bohrer, Bar-Ilan University Faculty of Law, has posted The (Failed) Attempt to Try the Kaiser and the Long (Forgotten) History of International Criminal Law: Thoughts Following The Trial of the Kaiser by William A Schabas, which appears in the Israel Law Review 53 (2020): 159-186

Kaiser Wilhelm II (NYPL)

The conventional historic account maintains that International Criminal Law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas’s book – The Trial of the Kaiser (2018) – captivatingly shows, by richly portraying the (aborted) First World War initiative to try the German Kaiser in an international tribunal. But, this article (after providing an overview of Schabas’s book) argues that Schabas’s account, of a First World War ICL ‘birth’, is also incomplete. First World War-era ICL was but one link in a much longer historical chain. The article demonstrates this fact by presenting certain elements of ICL’s long (forgotten) history that provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’), but also by Schabas’s account (of a First World War ICL ‘birth’). As the article shortly discusses, the unveiling of a greater ICL history indicates that international criminal tribunals were not a modern innovation, as well as reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The article further discusses reasons for the dis-remembrance of ICL’s long history, the importance of acknowledging that history and the likelihood of it becoming widely acknowledged any time soon. 

--Dan Ernst

Acevedo on Crime Fantasies

John Acevedo, Alabama Law, has posted Crime Fantasies, which appeared in the American Journal of Criminal Law 46 (2019): 194-240:

Trial of George Jacobs for Witchcraft (NYPL)

Throughout American history the public has been gripped by fantasies of criminal activity. These crime fantasies manifest in two distinct but related typologies: witch-hunts and crime panics. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that exacerbate deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. President Trump’s relentless focus on undocumented immigration can be seen as a partially successful attempt to create a crime panic, while, perhaps surprisingly, the investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations and highlights areas for future reform.

--Dan Ernst

Phipps on medieval women and urban justice

Teresa Phipps (Swansea University) has published Medieval women and urban justice: Commerce, crime and community in England, 1300-1500 with Manchester University Press. From the publisher:

This book provides a detailed analysis of women's involvement in litigation and other legal actions within their local communities in late-medieval England. It draws upon the rich records of three English towns - Nottingham, Chester and Winchester - and their courts to bring to life the experiences of hundreds of women within the systems of local justice. Through comparison of the records of three towns, and of women's roles in different types of legal action, the book reveals the complex ways in which individual women's legal status could vary according to their marital status, different types of plea and the town that they lived in. At this lowest level of medieval law, women's status was malleable, making each woman's experience of justice unique.

 Here's the Table of Contents: 

Introduction

1 Women, town courts and customary law in context

2 Commerce, credit and coverture: women and debt litigation

3 Law and the regulation of women's work

4 Violence, property and 'bad speech': women and trespass litigation

5 Public disorder, policing and misbehaving women

Conclusion

Further information is available here.

--posted by Mitra Sharafi

Empires of Vice: For Those Interested in Opium and Archives

My book, Empires of Vice, puzzles over the anti-opium turn of European empires across Southeast Asia. For most of the 19^th century, opium was a lucrative and officially defended source of tax revenue for colonial states across the region, accounting for over 50% of locally collected revenue in certain territories. “Opium was one of those things,” announced the British politician George Campbell before the House of Commons in 1875, “which enabled us to serve God and Mammon at the same time.”

Into the first half of the 20^th century however, opium became a dangerous substance that no respectable empire would openly acknowledge taxing for profit. Empires of Vice explores this reversal—opium’s transformation from fiscal bedrock to banned drug—by comparing British and French experiences across today’s Burma, Cambodia, Laos, Malaysia, Singapore, and Vietnam. Through the lens of opium prohibition, this book asks more generally how European powers were able to reconfigure the economic foundations and discursive justifications for colonial governance across Southeast Asia.

My main argument, in a nutshell, is that administrators stationed locally in the colonies played a pivotal role. Anti-opium reforms were made possible through the pedestrian work of on-site bureaucrats, who constructed official problems relating to opium and delegitimized its economic life. Unlike many histories that focus on external pressures to ban opium from religiously-inspired moral crusaders and transnational activists, I look inside the colonial states, focusing on the anxieties of administrative actors most intimately involved in taxing and regulating opium.

Throughout my book, I use the language of the “surprising strength of weak actors”—paraphrasing from Mark Granovetter—to capture how seemingly mundane, repetitive and habitual everyday tasks of mid- and low-level bureaucrats generated officialized “facts” and numbers that served as evidentiary bases for anti-opium reforms. My understanding of colonial administrators was very much shaped by the archives of the British and French opium monopolies. In Southeast Asia, these colonial institutions operated from the 1890s until the 1940s, formally under Departments of Excise and Finance.

When I first encountered their annual reports, I thought I would glean a general picture of a colony’s opium revenue trends over time and opium-related legal administrative approach. I also braced myself to be fairly bored by technical language and tedious details, tacitly assuming that the administrators were mere rule implementers.

Very quickly however, it became clear that there was no such thing as a general fiscal and regulatory picture for any colony. Indeed, the very notion of a coherent approach to anti-opium reforms was a fiction fashioned on international stages or a retrospective summary. I also found it impossible to simply skim through the reports because of their colorful language—sometimes funny and creative, sometimes irritating and offensive—strange numbers, as well as ways of narrating unresolved issues that read almost like cliffhangers.

I came to think of these aspects of the archival record as not oddities, but rather the most visible part of multiple underlying layers of bureaucratic activity. And I spent much of my time in national archives across Southeast Asia and Europe chasing authors—for instance, the bureaucrat who came up with the label “morally wrecked” for Burmese opium smokers, others who described them as “gregariousness in vice”—and trying to reconstruct their small, often narrow, and busy world of ideas.

It started to make sense to treat their writings as containing petty philosophies about morality and vice, as well as theories about the nature of the state and colonial political economies. I was especially indebted to the works of legal historians Bhavani Rahman on paperwork, Kalyani Ramnath on the construction of porous differences between law and fact, and Julie Stephens’ recent work on bureaucratic petitioning. From my perspective, administrative narratives represented amalgamations of partial and profoundly human attempts to describe and judge the lives of others, which contained the biases, mistakes, and hubris of actors who wrote them.

I elaborate on this approach in this interview with The Docket (March 2020), the digital imprint of Law and History Review. In my next post, I’ll share how I approached this written interview.  

-Diana Kim 

Weekend Roundup

• From the American Scholar, Farah Peterson (UVA Law) on "The Patriot Slave: The dangerous myth that blacks in bondage chose not to be free in revolutionary America." "The fantasy of the patriot slave continues to haunt us and to limit us," Peterson writes. "It is a tendency to think of black people as supporting characters in the national drama—not so much as a selfless people (on the contrary, we are often smeared as freeloaders) but as people without any real selves worth bothering about." 

• LHB Founder Mary L. Dudziak on “George Floyd Moves the World: The Legacy of Racial Protest in America and the Imperative of Reform” (Foreign Affairs).  Calling out racism, “as have millions of Americans in the past week, does not undermine the nation by revealing its well-known failings to the rest of the world,” she writes.  “The world has known of these failings for centuries.”

• Now online: The Docket, vol. 3, no. 2 (June, 2020), a special issue on the history and contemporary legacies of age of consent laws.

• The National History Center Webinar, Protest and Civil Unrest in the United States: An Historical Exploration, is up on YouTube.

• Over at Jotwell, Reuel Schiller reviews Sarah Milov's The Cigarette: A Political History (The Cigarette and the State).

• The Federal Judicial Center has been "live-tweeting" Schenck v. U.S (1919). 
  

• The University of Alabama at Birmingham has a notice of  Mulatto • Outlaw • Pilgrim • Priest: The Legal Case of José Soller, Accused of Impersonating a Pastor and Other Crimes in Seventeenth-century Spain (Brill), by John K. Moore Jr.

• Historians Matt Gabriele and Varsha Venkatsubramanian are hosting Drinking with Historians, a 30-minute Zoom conversation over drinks with a guest historian each Friday usually at 6pm ET. To catch Gautham Rao on July 3 and Karl Shoemaker on Aug.7, sign up here. More info here.

• ICYMI: Laura Edwards on the history of policing in WaPo and the Duke Chronicle.  "Why We Have the Third Amendment" (History Channel).  Maori pursue claims to the "Nelson Tenths" (RNZ).  Wesley M. Oliver on Dollree Mapp and the anachronistic exclusionary rule (Pittsburgh Post-Gazette). "History Strikes Back," says Steven Mintz (Inside Higher Ed).  Randall Kennedy on teaching a racial epithet (Volokh Conspiracy).

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

Parmet on Jacobson v. Massachusetts

Wendy E. Parmet, Northeastern University School of Law, has posted Rediscovering Jacobson in the Era of COVID-19, which is forthcoming in the Boston University Law Review Online:

As courts continue to hear constitutional challenges to COVID-related orders, citations to the Supreme Court’s 1905 decision, Jacobson v. Massachusetts, have been proliferating. This essay re-examines Justice Harlan’s nuanced and ambiguous opinion in Jacobson, situating in in its epidemiological and jurisprudential context. The essay also looks at Jacobson’s complex legacy, and how judges, including Chief Justice Roberts in South Bay United Pentecostal Church v. Newsom, have been applying Jacobson as they review COVID-19 social distancing orders.

--Dan Erns.  H/t: Legal Theory Blog

CFP: Imperial Artefacts

[We have the following announcement.  DRE]

Call for Papers: Imperial Artefacts. History, Law, and the Looting of Cultural Property

On 28 and 29 January 2021 the conference 'Imperial Artefacts: History, Law and the Looting of Cultural Property' takes place at Leiden University. Key note speakers during the conference are Prof. Dr. Jürgen Zimmerer (Chair for Global History at Hamburg University & Head of the Research Centre ”Hamburg’s (Post)Colonial Legacy”) and Dr. Matthias Goldmann (Junior Prof. for International Public Law and Financial Law at Frankfurt University). The organisers of the conference welcome paper proposals for 20 minute presentations. The deadline for submitting proposals is 31 August 2020.

Diamond v. Chakrabarty at 40

[We have the following announcement.  DRE]

WEBINAR: Patents on Life: Diamond v. Chakrabarty at 40 (June 17, 1pm EDT), Wednesday, June 17, 2020, 1:00 – 2:30 PM (EDT).  This webinar is free and open to the public. No advance registration is required.  CLICK HERE TO JOIN THE LIVE WEBINAR.

In June 1980, the U.S. Supreme Court ruling in Diamond v. Chakrabarty authorized the first patent on an intentionally genetically modified organism and concluded that patents may be granted for “anything under the sun that is made by man.” The decision contributed to the rise of the modern biotechnology industry and reshaped the agriculture industry. Less well known, the Plant Protection Act of 1930 had previously allowed intellectual property protection for selectively bred and cloned plants. On the 40th anniversary of Diamond v. Chakrabarty and the 90th anniversary of the Plant Protection Act, our expert panel will discuss breakthroughs in agricultural biotechnology and explore the impacts – economic and environmental – of these two major historical turning points. How did the rise of patented, GMO crops change farming? How did the Supreme Court’s decision change the patent system? How did developments in biotechnology reshape America’s innovation system?

 We will take questions through the web portal following brief opening presentations and an initial discussion among the panelists.

PANELISTS:

• Ananda M. Chakrabarty, inventor and distinguished professor of microbiology and immunology at the University of Illinois Chicago College of Medicine

• Dan Charles, science writer, National Public Radio food and agriculture correspondent

• Daniel Kevles, Stanley Woodward Professor Emeritus of History, History of Medicine & American Studies, Yale University

• Jennie Schmidt, farmer, registered dietitian nutritionist, and blogger at The Foodie Farmer

• Moderator: Arthur Daemmrich, Director, Lemelson Center for the Study of Invention and Innovation, Smithsonian’s National Museum of American History

Closing Remarks: Sean O’Connor, Executive Director & Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University

Details here.  Real-time captioning (CART) for the live webinar will be provided. Please send an email to nmahprograms@si.edu with any other accessibility needs.  This webinar is co-presented by The Smithsonian’s Lemelson Center for the Study of Invention and Innovation, and the Center for the Protection of Intellectual Property (CPIP) at George Mason University’s Antonin Scalia Law School.

Phang, Goh & Soh on Singapore Law

Andrew Phang, Yihan Goh, and Jerrold Soh, Singapore Management University School of Law, have posted The Development of Singapore Law: A Bicentennial Retrospective, which is forthcoming in the Singapore Academy of Law Journal:

The present article reviews (in broad brushstrokes) the status of Singapore law during its bicentennial year. It is not only about origins but also about growth – in particular, the autochthonous or indigenous growth of the Singapore legal system (particularly since the independence of Singapore as a nation state on 9 August 1965). The analysis of this growth is divided into quantitative as well as qualitative parts. In particular, the former constitutes an empirical analysis which attempts – for the very first time − to tell the development of Singapore law through numbers, building on emerging techniques in data visualisation and empirical legal studies.

–Dan Ernst

Menon on Burke on the "Protection" of Trinidad Slaves

Parvathi Menon, Erik Castren Institute of International Law and Human Rights, has posted Edmund Burke and the Ambivalence of Protection for Slaves: Between Humanity and Control, which is forthcoming in the Journal of the History of International Law:

Edmund Burke (NYPL)

The language of protection came with an ambivalence that was capable of portraying the protector as the benevolent sovereign, i.e., as protecting the slaves from planter brutality (protection as humanity), but also one that allowed the sovereign to exert control over the protected to prevent resistance to authority (protection as control). In this paper, I examine the politics behind protection for slaves in Trinidad in the early 19th century to show how protection, as a legal strategy, served these different ends in the British Empire, of humanity and control alike, and was influenced by the legacy of Edmund Burke. I make two arguments in this paper: First, I argue that Burke’s trusteeship ideas, albeit widely written about as limiting imperial rule (concerning his efforts in India, largely demonstrated by the Warren Hastings trial), can also be described as a tool for imperial expansion in the early 19th century (as in the case of its redeployment in the Mandates model). To re-characterize Burke as neither radical nor conservative, but as a pragmatist who believed that one must ‘allow an evil to correct it’, I examine the underlying meaning of what became his ‘trusteeship model’ from the perspective of his plan to protect slaves. Second, I claim that if we move past the strict international-national delineation present in international law today, we can appreciate that the legal technique of protection was at the center of the exploitation of non-European peoples for much longer during the ‘Pax Britannica’.

--Dan Ernst

Dingle's Conversations with Prichard

Lesley Dingle, University of Cambridge, has posted Conversations with Michael J. Prichard: The Fun of Legal History and the Triumph of Research Over Administration:

Michael Prichard was born before the Second world war and lived through the bombing and destruction of much of London. When he entered university in 1945, King’s College London had reoccupied its old quarters in the badly-damaged Somerset House, and along with LSE and UCL had pooled teaching resources to overcome staff shortages and accommodation damage. This inadvertently gave Michael a rich pool of mentors upon which to found his career, and who served him well in later years. He entered Queens’ College Cambridge in 1948 and experienced the unique post-war phenomena of the “returning warriors”, which continued, along with the “weekenders”, when he became a fellow at Gonville & Caius in 1950. Here he has remained, and is still a Fellow, seventy years later.

Michael Prichard (Squire Law Library)

His legacy is a fund of memories of a life-long journey through changing landscapes of legal research, teaching, and college and faculty administration. I first interviewed Michael for the Eminent Scholars Archive in 2012, where his biography and general academic reminiscences are set forth. I now revisit aspects of these, following a conversation I had with David Yale for ESA in November 2019. David was Michael’s career-long colleague, and his interview shone new light on their decades of joint endeavour unravelling the development of maritime law in the British Isles. Shortly after David’s reminder of the magnitude of their project, an encounter with Professor David Ibbetson, and most-recently a meeting with Michael, now in his 93rd year, have spurred me to summarise particular aspects of Michael’s varied research projects. In the process, I shall emphasise the overall sense of adventure, and enjoyment - in short “fun”, with which he explored the history and jurisdictional intricacies of the Admiralty Court (jointly with David Yale), presented his enlightened insights into the evolution of aspects of tort law, and explained his research of the few esoteric conundrums in which a retiree was able to indulge.

--Dan Ernst

Czajkowski, Eckhardt, Strothmann and friends on law in the Roman provinces

Co-edited by Kimberley Czajkowski (University of Edinburgh), Benedikt Eckhardt (University of Edinburgh), and Merey Strothmann (Ruhr-Universität Bochum), Law in the Roman Provinces is now out with Oxford University Press. It is part of Oxford Studies in Roman Society & Law. From thepress:

The study of the Roman Empire has changed dramatically in the last century, with significant emphasis now placed on understanding the experiences of subject populations, rather than a sole focus on the Roman imperial elites. Local experiences, and interactions between periphery and centre, are an intrinsic component in our understanding of the empire's function over and against the earlier, top-down model. But where does law fit into this new, decentralized picture of empire?

This volume brings together internationally renowned scholars from both legal and historical backgrounds to study the operation of law in each region of the Roman Empire, from Britain to Egypt, from the first century BCE to the end of the third century CE. Regional specificities are explored in detail alongside the emergence of common themes and activities in a series of case studies that together reveal a new and wide-ranging picture of law in the Roman Empire, balancing the practicalities of regional variation with the ideological constructs of law and empire.

Table of Contents after the jump:

ASLH Cancels In-Person 2020 Meeting

The American Society for Legal History announced today that there will be no in-person annual convening this year:

With public health experts predicting that the risks of travel and large-group gatherings during the COVID-19 pandemic will continue through the fall, and with ongoing restrictions on university and international travel, the ASLH has regretfully made the decision to cancel the in-person ASLH 2020 annual meeting.

While it is sad to have to forgo our beloved in-person conference, the Society will continue its mission of nurturing legal history research and fostering scholarly exchange. Prize and fellowship competitions will go forward, as will the Hurst Summer Institute, scheduled for summer 2021. And we will not be idle in November. Led by co-chairs Kristin Collins and Ari Bryen, the ASLH program committee is organizing an exciting short program of online workshops, panels, and lectures. The Student Research Colloquium will be part of this online program. Please look for details in the coming months about the remote 2020 ASLH conference.

The program committee will soon communicate decisions about papers, panels, and workshops submitted for the 2020 meeting. Note that a small number of submissions will be accepted for the remote conference in November, and the remainder of accepted submissions will be placed on the program of the ASLH conference to be held in New Orleans on November 4-6, 2021.

-- Karen Tani

Priest's "Rise of Law and Economics"

The Rise of Law and Economics: An Intellectual History (Routledge, 2020), by George L. Priest, Yale Law School, has been published:

This is a history—though, intentionally, a brief history—of the rise of law and economics as a field of thought in the U.S. college and law school academy, though the field has expanded to Europe and South America and will expand further as other legal systems develop.

This book explains the origins of the field and the sources of its growth during its formative period. It describes the intellectual roots of the field, and the field’s relationship to the understanding of the role of the legal system in directing the functioning of the economy. It describes the effect of the Great Depression and the expansion of governmental power on advancing the functional approach. The book then addresses the work of Aaron Director, during the late 1950s, on focusing economic analysis as a means of understanding the effects of the legal and regulatory system on the allocation of resources in the society. Then it turns to the subsequent intellectual founders of the field—Ronald Coase, Guido Calabresi, and Richard Posner—and attempts to explain the significance of their work. It also discusses the efforts of Robert Bork and Henry Manne toward the influence of law and economics on public policy. The book ends with the founding of the American Law and Economics Association in 1991.

This is an essential companion to law and economics texts for undergraduate law and economic students and, especially, a general supplement to first-year casebooks for law school students.

--Dan Ernst

Cohen Student Essay Competition

[We have the following annoucement.  DRE]

The Legal History and Rare Books Section (LHRB) of the American Association of Law Libraries, in cooperation with Gale Cengage Learning, announces the annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School. Professor Cohen’s scholarly work was in the fields of legal research, rare books, and historical bibliography.

The purpose of the competition is to encourage scholarship in the areas of legal history, rare law books, and legal archives, and to acquaint students with the American Association of Law Libraries (AALL) and law librarianship. Essays may be on any topic related to legal history, rare law books, or legal archives. The competition is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Both full- and part-time students are eligible. Membership in AALL is not required.

The winner will receive a $500 prize from Cengage Learning and will present the essay at an LH&RB sponsored webinar. The winner and runner-up will have the opportunity to publish their essays in LH&RB’s online scholarly journal Unbound: A Review of Legal History and Rare Books.  Winners have gone on to publish the winning article in other noted journals also.

For more information and deadlines, please see the announcement, full rules, and application.

The deadline for application is July 31, 2020.

Post on How Taft Wrote Myers

Robert Post, Yale Law School, has posted Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, which is forthcoming in the Journal of Supreme Court History (2020):

"The Executive Wink" (NYPL)

This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History.

The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal.

Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive. 

--Dan Ernst

Torrie's "Reinventing Bankruptcy Law"

Virginia Torrie, University of Manitoba Faculty of Law, has published Reinventing Bankruptcy Law: A History of the Companies’ Creditors Arrangement Act (University of Toronto Press).  An interview with Professor Torrie is here.

Reinventing Bankruptcy Law explodes conventional wisdom about the history of the Companies’ Creditors Arrangement Act and in its place offers the first historical account of Canada’s premier corporate restructuring statute. The book adopts a novel research approach that combines legal history, socio-legal theory, ideas from political science, and doctrinal legal analysis. Meticulously researched and multi-disciplinary, Reinventing Bankruptcy Law provides a comprehensive and concise history of CCAA law over the course of the twentieth century, framing developments within broader changes in Canadian institutions including federalism, judicial review, and statutory interpretation.

Examining the influence of private parties and commercial practices on lawmaking, Virginia Torrie argues that CCAA law was shaped by the commercial needs of powerful creditors to restructure corporate borrowers, providing a compelling thesis about the dynamics of legal change in the context of corporate restructuring. Torrie exposes the errors in recent case law to devastating effect and argues that courts and the legislature have switched roles – leading to the conclusion that contemporary CCAA courts function like a modern day Court of Chancery. This book is essential reading for the Canadian insolvency community as well as those interested in Canadian institutions, legal history, and the dynamics of change.

–Dan Ernst

Cavanagh and friends on empire and legal thought

Empire and Legal Thought: Ideas and Institutions from Antiquity to Modernity, edited by Edward Cavanagh (University of Edinburgh), is now out with Brill. It is volume 41/16 in Studies in the History of International Law. From the press:

Emphatic of the importance of legal thought to the rise and fall of empires, this book highlights the centrality of empires to the development of legal thought. 

Comprehension of the development of legal thought over time is necessary for any historical, philosophical, practical, or theoretical enquiry into the subject today, it is argued here. When seen against the background of broad geopolitical, diplomatic, administrative, intellectual, religious, and commercial changes, law begins to appear very resilient. It withstands the rise and fall of empires. It provides the framework for the establishment of new orders in the place of the old. 

Today what analogies, principles, and authorities of law have survived these changes continue to inform much of the international legal tradition. 

Contributors are: Clifford Ando, Lia Brazil, Joseph Canning, Edward Cavanagh, Zachary Chitwood, Emanuele Conte, Matthew Crow, Alberto Esu, Tiziana Faitini, Dante Fedele, Naveen Kanalu, Alexandre A. Loktionov, P. G. McHugh, Jordan Rudinsky, Mark Somos, Joshua Smeltzer, Lorenzo Veracini, Halcyon Weber, and Sarah Winter.

Further information (including the full Table of Contents) is available here.

--posted by Mitra Sharafi

Bilder on Newmyer and the Constitution's "Heroic Age"

Mary Sarah Bilder, Boston College Law School, has written The Emerging Genre of The Constitution: Kent Newmyer and the Heroic Age, which is forthcoming in the Connecticut Law Review.  Professor Bilder delivered it last November art the symposium, Celebrating Kent Newmyer.

In written celebration of Kent Newmyer’s intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging genre and then turn to Kent Newmyer’s important influence.

--Dan Ernst

Siegel on The Pregnant Citizen

Reva Siegel, Yale Law School, has posted The Pregnant Citizen, from Suffrage to the Present, which is forthcoming in the Georgetown Law Journal:

This Article examines how courts have responded to the equal protection claims of pregnant citizens over the century women were enfranchised. The lost history it recovers shows how equal protection changed—initially allowing government to enforce traditional family roles by exempting laws regulating pregnancy from close review, then over time subjecting laws regulating pregnancy to heightened equal protection scrutiny.

It is generally assumed that the Supreme Court’s 1974 decision in Geduldig v. Aiello insulates the regulation of pregnancy from equal protection scrutiny. The Article documents the traditional sex-role understandings Geduldig preserved and then demonstrates how the Supreme Court itself has limited the decision’s authority.

In particular, I show that the Rehnquist Court integrated laws regulating pregnancy into the equal protection sex-discrimination framework. In United States v. Virginia, the Supreme Court analyzed a law mandating the accommodation of pregnancy as classifying on the basis of sex and subject to heightened scrutiny; Virginia directs judges to look to history in enforcing the Equal Protection Clause to ensure that laws regulating pregnancy are not “used, as they once were . . . to create or perpetuate the legal, social, and economic inferiority of women.” In Nevada Department of Human Resources v. Hibbs, the Court then applied the antistereotyping principle to laws regulating pregnancy, as a growing number of commentators and courts have observed.

I conclude the Article by considering how courts and Congress might enforce the rights in Virginia and Hibbs in cases involving pregnancy under both the Fourteenth and the Nineteenth Amendments. To remedy law-driven sex-role stereotyping that has shaped the workplace, the household, and politics, the Article proposes that Congress adopt legislation mandating the reasonable accommodation of pregnant employees, such as the Pregnant Workers Fairness Act. These sex-role stereotypes affect all workers, but exact the greatest toll on low-wage workers and workers of color who are subject to rigid managerial supervision.

When we locate equal protection cases in history, we can see how an appeal to biology can enforce traditional sex roles as it did in Geduldig—and see why a court invoking Geduldig today to insulate the regulation of pregnancy from scrutiny under Virginia and Hibbs would not respect stare decisis, but instead retreat from core principles of the equal protection sex-discrimination case law.

--Dan Ernst

Empires of Vice: A First Book with Multiple Audiences

It is a pleasure to contribute to the Legal History Blog. My first book, entitled Empires of Vice: The Rise of Opium Prohibition across Southeast Asia was published recently. Throughout the month of June, I’ll be sharing a set of posts about this book, dwelling on the multiple audiences that I hope it may “speak” to.

As Dan Ernst mentioned in his kind introduction, I received my Ph.D. in political science, currently teach at an interdisciplinary school oriented toward international affairs and policy, and have written a book in the Histories of Economic Life series of Princeton University Press. Like many interdisciplinary creatures, I find it both exciting and challenging to articulate how and why my work matters to whom.

Empires of Vice is a book for political scientists, historians, specialists of Asian Studies, and policy makers, in overlapping but different ways. It is a book about the inner life of a bureaucratic state (that urges political scientists to be more curious about how the nitty-gritty ways that states actually govern). It is also a book about the anti-opium turn of multiple European empires across Southeast Asia during the late 19^th and early 20^th centuries (that gives reasons for historians to pay more attention to a place and process of change often run roughshod over in prevailing narratives about empires and opium that focus mainly on the British empire, India, and China). And Empires of Vice is also a book about how colonial legacies have shaped Southeast Asia's illicit economies and punitive drug laws today, which more broadly addresses normative challenges and policy implications for transnational problem-solving. 

Each of my posts will elaborate on these points. In addition, I plan to incorporate brief reflections on the practical aspects of “speaking” to different audiences in our current moment.

I write a time when the COVID-19 epidemic continues to unfold globally, making travel, in-person gatherings, conferences, and many conventional ways of presenting scholarship not possible. It is also an impassioned time in the United States where I live, with resounding calls for social change, anxious aspirations for and collective action aimed at profoundly refashioning the existing order. It thus feels like an especially difficult and selfish time to have a new book out. At the same time, it is also feels like an especially important time to think about alternative modes of virtual presentation that may very well become a new norm; to figure out ways to be clear about relevance, in the sense of being explicit about when and how one’s scholarship may (or may not) speak to ongoing events without detracting from its value. 

I have benefitted immensely from wonderful examples of scholars sharing their new books through podcasts (see Claire Edington’s Beyond the Asylum with the New Books Network), online interviews (see Durba Mitra’s Indian Sex Life with Notches), blogposts (see Jill Hasday’s Intimate Lies and the Law with the Legal History Blog) and other forms of virtual presentation (see this online book party for Arunabh Ghosh’s Making it Count). I hope to add to this growing digital archive, by sharing what I wish I had known in advance of some of the podcasts, interviews, short essays that I have done recently: seemingly mundane practical details that ended up mattering a lot for expressing ideas and communicating through different types of media (zoom, phone chats, written scripts), with different types of interlocutors (interviewers as my own students, colleagues, total strangers), and for different audiences (across disciplines and beyond the academy). I’ll also be linking to recently published books by people I admire, especially first-time authors in legal history, histories of empire, political science, and Southeast Asian studies.

I’ll wrap up this first post with an invitation. I’d love to learn from others with first books with multiple audiences, and also welcome suggestions from more seasoned authors and colleagues with more experience ushering their books into the virtual world. 

In my next post, I’ll be writing with legal historians in mind as an audience, highlighting how Empires of Vice explores the inner life of bureaucracies and its use of administrative archives for British and French colonial opium monopolies across Southeast Asia. I’ll also dwell on preparing for my interview with The Docket, the digital imprint of Law and History Review. 

—Diana Kim

Author’s Photograph.
Card Catalogue at Archives nationales d’outre-mer (Aix-en-Provence, France)

Thank you, Rohit De!

We are so fortunate to have had Professor Rohit De with us these past weeks. He offered a thoughtful series of posts on "Murder Mystery and Legal History." Explaining this choice of subject, De wrote about the challenges of working as usual under pandemic conditions, and how he found himself "regressing to comfort reading, consisting of historical novels and mid 20th century murder mysteries."

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.

A roundup of these posts:

• Murder Mystery and Legal History: Part I
• Murder Mystery, Legal History Part II: Death in the Colony
• Murder Mystery, Legal History III: The Afterlives of Empire in MM Kaye and Agatha Christie

Thank you, Rohit De!

-- Karen Tani

Weekend Roundup

• Reminder: Applications for the William Nelson Cromwell Foundation awards to support research and writing in American legal history by early-career scholar are due on July 1.  (The Committee for Research Fellowships and Awards of the American Society for Legal History reviews the applications and makes recommendations to the Foundation.)  More.

• This year’s recipients of Charlotte W. Newcombe Doctoral Dissertation Fellowships include Tamar Menashe, Columbia University, for "People of the Law: The Imperial Supreme Court and Jews in Cross-Confessional Legal Cultures in Germany, 1495–1690," and Lila Teeters, University of New Hampshire, for “Native Citizens: The Fight For and Against Native Citizenship in the United States, 1866–1924.”

• Process, the blog of the Journal of American History and the Organization of American Historians, has put out a call for submissions on "all aspects of the history of disability in the United States."

• Two new articles online in the American Journal of Legal History: “Law at a Critical Juncture: The US Army’s Command Responsibility Trials at Manila 1945–1947,” by Jamie Fellows; and “Reforming Criminal Justice in the Ottoman Empire: Police, Courts and Prisons in Rusçuk, 1839-1864,” by Mehmet Celik.

• Here is the Harvard Law School faculty's open letter condemning "a series of acts by President Trump and other public servants that endorse violence and are inconsistent with a democratic legal order." Signatories include every legal historian we can think of who teaches there.

• The Consortium for Undergraduate Law & Justice Programs recently announced its 2020 awards for teaching and best undergraduate paper.

• Justin W. Aimonetti, a recent graduate of the University of Virginia School of Law, has posted his student note Colonial Virginia: The Intellectual Incubator of Judicial Review, published in the Virginia Law Review 106 (2020): 765-810.  He thanks UVA Law’s Cynthia Nicoletti.

• From the Riesenfeld Rare Books Blog at the University of Minnesota: Law in Times of Crisis, II

• ICYMI: Dean Risa Goluboff draws on her own historical research in her message to UVA law students.  David Blight on Frederick Douglass and "the tortured relationship between protest and change" (The Atlantic). Alexander Zhang on this history of "school-to-prison pipeline" policing in Minneapolis (Slate).

• ICYMI, Insurrection Act Edition:  Gautham Rao on the Posse Comitatus and Insurrection Acts (CNN).  The History Channel on the Jeffersonian origins of the Insurrection Act.  Still more, in WaPo's Retropolis.
  

• Over at Balkinization, Stephen Griffin develops an aspect of his recent SSRN post "Optimistic Originalism and the Reconstruction Amendments."Also at Balkinization: Gregory Ablavsky (Stanford Law School) on "PROMESA and Original Understandings of the Territories’ Constitutional Status."

• Lots of important content in the Washington Post's "Made by History" section this week, including Elizabeth Kolsky (Villanova University) on "how autopsies can uphold white supremacy."
  

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

Sepper and Dinner on Feminist and Gay Lib Movements

Elizabeth Sepper, University of Texas at Austin School of Law, and Deborah Dinner, Emory University School of Law, have posted Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public, which is forthcoming in the University of Richmond Law Review 54 (2020): 759-797:

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. That same year, the growing feminist movement also launched protests for women's equality in public accommodations.

Our essay analyzes two case studies, from New Jersey in the late 1960s and California in the mid-1980s, to show what we might learn by integrating the histories of LGBTQ and feminist public accommodations activism. These case studies offer two lessons. First, the regulation of cisgender women and LGBTQ people stemmed from common sources of both law and custom. Public authorities and private businesses limited the access of unescorted heterosexual women, gay people, and gender nonconformists to public accommodations and surveilled their gathering in public space. For each of these groups, such policing was justified by fears of sexuality perceived to threaten the hetero-patriarchal family. Second, feminist and LGBTQ people's respective fights for equality in public reinforced one another. Before 1969, no city, state, or federal law prohibited sex, sexual orientation, or gender identity discrimination in public accommodations. Beginning in the 1960s, the LGBTQ and feminist movements pursued court battles and legal reforms. They ensured that liquor licensing no longer targeted cisgender women and LGBTQ people. Over the course of the 1970s and ‘80s, virtually all states came to adopt public accommodations laws prohibiting sex discrimination, and cities and states slowly began to explicitly include sexual orientation as well. Feminist and LGBTQ legal victories evolved in an interdependent rather than isolated manner.

--Dan Ernst

Toler on the Missing Indian Affairs Clause

Lorianne Updike Toler, a Visiting Fellow, at Information Society Project at the Yale Law School, has posted The Missing Indian Affairs Clause, which is forthcoming in the University of Chicago Law Review:

Conflicting lines of precedent and philosophy are the defining characteristics of Federal Indian Affairs law. Scholarship and case law run the gamut from finding a pre-constitutional federal plenary power over Native Americans to narrow readings of the Indian Commerce Clause limiting Congressional power to trade only. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution, or, conversely, why the new federal government never limited themselves to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution.

In fact, the Framers did make a mistake, or at least five of them did. This article examines the drafting history of the Constitution and suggests a startling explanation for the omission of an Indian Affairs Clause: at its heart is an innocent but consequential scrivener’s error. The Committee of Detail, tasked by the Constitutional Convention to produce a working draft of a Constitution, seems to have accidentally omitted an Indian Affairs Clause. Not only was inclusion of a Congressional power over Indian Affairs compelled by its long pre-history and a unanimous vote by the Convention, but John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check-mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, only one caught the mistake, a handful (at most) addressed the lapse and provided an awkward, partial fix by importing “Indians” into the Commerce Clause, and none thereafter fixed the fix. The omission has thereafter caused a bicentennial of confusion to the detriment of the tribes.

This history raises serious questions for constitutional theory, federal Native American policy, state-tribal relations, and Commerce Clause jurisprudence. This article addresses the question of whether the partially-fixed scrivener’s error should be fixed, and suggests some possible responses. These responses include judicial correction via statutory construction’s mistake doctrine, constitutional amendment, or re-implementation of the Washington Administration’s accord to treat with tribes as foreign nations, but with a textual twist: the United States would have to treat with a tribe before Congress could enact legislation to address subjects external to the Indian Commerce Clause. Though it does not provide a clean textual fix, the last option provides a practical one and affords the greatest normative benefits — it is consistent with precedent, the Constitution, and separation of powers principles. Moreover, treating with tribes again would restore tribal sovereignty and dignity.

--Dan Ernst

Murder Mystery, Legal History III: The Afterlives of Empire in MM Kaye and Agatha Christie

An Indian butler is shot on a moonlit island filled with radiant Chinars at the centre of Kashmir’s dal lake. A German housemaid is clubbed to death on a Berlin street lined with families of British officers occupying former homes of wealthy Nazis. An English secretary is strangled in a charming white washed cottage “amid the scent of roses and jasmine” in sunny Cyprus. A leftwing Arab Zanzibari is poisoned on a flight from Mombasa throwing suspicion on a small group of English and American tourists. A picnicking party finds itself stranded on an Andaman island, amid a raging hurricane, as a killer picks off the guests one by one. Pirate treasures, Nazi diamonds, Russian spies, gun runners and Mau-Mau fighters are thrown into alongside love, hate, lust, greed, fear and revenge in the mix of motives.

As I moved on from Nairobi following research leads to London and then Delhi, I found my research sites mirrored in the work of M.M Kaye. I was looking at histories of civil liberty lawyering across territories that had been part of the British empire, most of my lawyers were engaged in resisting the powers of a variety of Emergency regimes, be it during anti-colonial wars of independence (Kenya, Malaysia, Cyprus); struggles of postcolonial state formation (India, Pakistan, Sri Lanka), or during military occupation (postwar Europe). These mobile lawyers moved across colonial/postcolonial jurisdictions in the course of their practice, and using their lives as an archive helped think across fields that are usually historiographicaly distinct. The independence and partitions in South Asia are seen as distinct from the long drawn out wars of decolonization in Kenya, Malaysia, Cyprus and Palestine, while the British occupation in post-war Europe is rarely put together with events in Asia and Africa. Yet they come together in concert in Kaye’s mystery volumes, as places deeply interconnected. Lt. Colonel Robert Melville in Death inBerlin for instance has served in Egypt and is headed to Malaya after Berlin (Berlin counts as a home posting, according to his horrified wife). The murder of Monica Ford’s brother in a Mau Mau in Kenya is a turning point in the plot of Death in Cyprus.

These interconnections are not a coincidence, Kaye’s murder mysteries are based on notes she had taken while following countries where her husband served as a British military officer during the 2^nd World War and after. Death in Berlin (1955) is dedicated to “army wives like (herself) who have followed the drum”. Mary Margaret (Mollie) Kaye was very much a child of the Raj. Born to an intelligence officer in the British Indian Army, M.M Kaye returned to Simla in 1941 after a decade of living in London and earning a living as a writer and children’s book illustrator. Like many of her heroines, she got engaged a British Indian army officer in a whirlwind romance, having two children before his divorce with his wife in Ireland got finalized. As she would later explain, “We just couldn't wait. Had it been peacetime, I wouldn't have done it because of the way I had been brought up. But these were the pressures of war." Kaye’s considerable fame came from her hugely popular Indian historical novels, The Far Pavilions  and the Shadow of the Moon which are both set in the aftermath of the Indian Rebellion of 1857 (Kaye’s great uncle Sir John Kaye was a leading historian of the Revolt of 1857 and the First Afghan War). However, her lesser known works include a set of six murder mysteries set in India (Andamans and Kashmir), Kenya, Germany, Cyprus and Zanzibar.

Read together they tell a story of an Empire in retreat, carrying it’s flotsam and jetsam with it. Discussing their contemporaries in a Srinagar ball on the eve of Indian independence, Major Hugo Creed, dispassionately notes that the eccentric Lady Candera, was a “special brand in the Indian Empire. Next year there will be no Indian Empire, so that brand will become extinct- along with Johnnies and Helens and their ilk. They won’t go to ground in England, because it will not be able to give them what they want, so the Lady Candera’s will retire to infest places like Cyprus and Maderia and the Johnnies and Helens will probably get themselves to Kenya”. As recent scholarship has shown, tools of colonial governance including the managing of anti-colonial emergencies were exported from region to region. Binyamin Blum for instance shows how Palestinian policemen and forensic practices were exported to Kenya, and as were counter-insurgency tactics from Malaya. The legal infrastructure in place in East Africa and South-east Asia, were often transplants of law codes developed in colonial India. 

 Kaye’s cast of characters is always led by a plucky damsel (often in distress and a silent, strong, sardonic hero, usually with a job in military intelligence. Their frequent clashes animate the investigation, with slaps, rough kissing and making sounds like “infuriated and frightened kitten’. Military men (bluff and genial, old and doddery, young and resentful); military wives, ranging from Mrs Leslie in Berlin , “the model of an army wife (“one knew instinctively that she referred to her husband’s regiment as “My regiment”, to the regimental wives as “my wives”, did her duty as to Welfare, and all that concerned the good of the battalion, played an excellent game of bridge, and adequate game of tennis and gold, read all the bestsellers, and was sincerely convinced that there was only one regiment in the British army that counted”) to those that absolutely hated army life, Stella Melville for whom the East was “uncivilized and frightening). There are several predatory women on the lookout for other men’s husbands (Death in Cyprus actually has four); eccentric spinsters like Miss Pond in Death in Kashmir who wore in “addition to an anxious expression, a haphazard collection of garments that gave the impression of being flung together in a hurry…including short buttoned boots, a batik scarf, mustard yellow gloves and several assorted beads”;   middle aged secretaries in love with their bosses, an occasional loud American or an extremely Anglicized “native” who can mix with the English such as Sayyide Zuhra-binti-Salem, who the heroines discovers with some shock, speaks seven languages, has a BA degree and was “considerably better educated than herself or for that matter the majority of European women”. While superficially similar to say Orwell’s cast of colonials in Burmese Days, written several decades later, Kaye’s gaze is sympathetic of the dying breed. Reviewing Johnny and Helen Warrender, the hardrinking polo playing office of the Lunjore Lancers and his social climbing wife in Death in Kashmir as “their world crumbled around them” with the mechanization of the cavalry, the “makrs of dissipation and weakness” and “discontented middle age settled upon them”.  India was to be given her freedom and there was “nothing left for the Johnnies and Helens except memories and debts”. Kaye’s heroine notes, “there is always something more pitiful in the destruction of petty but prized possessions than in the crash of dynasties, for the latter is at least spectacular and dramatic, while the former is of no more account in the eye of history than the breaking of the child’s toy”. Trapped into an army routine, Stella Melville draws a quivering breath and says “I hate the army! I hate it, Oh why did Robert have to be a soldier? Why couldn’t he have been a farmer or a pig-breeder or a stockbroker or anything but a solider?.....the dirt, the dust, the flies, the dark secret faces, the horrible heat and the awful club life?..the awfulness of brassy sunshine?

The advantage of a detective novel, is no one needs to be what they seem, and the easy stereotypes could actually be an effective disguise. So the rosy cheeked Bonzo and Alec, 18 year old twin military officers in Kashmir who spend most of their time skiing and wooing the heroine, are Boris and Alexis with a White Russian mother, and possible communist sympathies? Why passions seeth under the regimental Memsahib’s sensible tweeds. Is the bluff and hearty colonel, looking forward to his retirement on an pension in an converted “worker’s flat” or can his loyalties be tempted by financial game? If the crime in the detective novel arises out of social conditions, the “malice domestic” in Kaye’s novels arise out of the temptations of Empire.  

           

The Occupation Detective Novel: Berlin as a Space of Emergency

Written during the travels of an army wife, it is no surprise that every site is one of a legal exception/Emergency. Her two Indian novels are set in Kashmir and the Andaman Islands. Kashmir, was a semi-autonomous princely state in 1947 operating outside of colonial law, soon to be drawn into a long drawn out international conflict between India and Pakistan with successive emergency regimes in both Indian and Pakistani administered Kashmir. The Andamans, a penal colony in the Indian Ocean, as Uditi Sen argues, was imagined as “terra nullius” open to colonial/postcolonial authority and transformation. Cyprus and Kenya are both sites of violence wars of decolonization and draconian laws, while Zanzibar (though semi-autonomous) is on the brink of revolution.

             Novels written in the wake of an occupying army adds Berlin and postwar Germany to the mix of sites of decolonization in interesting ways. Postwar Berlin was divided into sectors run by different allied powers and was a site of jurisdictional conflict. While military authorities exercised jurisdiction over uniformed servicemen, their authority over civilians remained ambiguous. These tensions played out in the real life case of Madsen v Kinsella, where the glamorous Brooklyn born wife of an American serviceman was convicted of murdering her pilot husband in occupied Germany. Mrs Madsen’s filed a habeas corpus petition arguing that the US Court for the Allied High Commission in Germany did not have the jurisdiction to try her. A suspect, like Madmoiselle Beljame in Death in Berlin might easily disappear into the Soviet sector, never to reappear. 

While Kaye’s gaze on Asia and Africa is appreciative of the colour and natural beauty, the “shattered ruins” of Berlin remind her of the “stupidity of it all! The waste and horror of man’s inhumanity to man”. The devastation is there to see, unlike in the British colony, where the devastation is imagined in the future. The naïve heroine in Death in Zanzibar is reminded that of the romanticism of the colony, “It is the only place I have yet hit upon where black and white and every shade in between’em appear to be able to live together in complete friendliness and harmony with no color bar. It is a living proof and practical demonstration that it can be done, They are all, whatever their race or caste or religion, loyal subjects of His Highness the Sultan..but it won’t last, In the end one …of them will manage to destroy it…Progress is a Lout”. In Berlin, Britain’s changing role in the world is underlined, as Norah Leslie, the Brigadier’s wife confesses that German’s terrified her, not because of their politics, but their industry. In contrast to postwar Britain with its welfare state, a country “too intent on its tea breaks, five day week and next pay rise”, the German workmen were willing and eager to work flat out, they are finding their feet and bursting with confidence. The changing world stage would requires special measures that might seem “un British”, a young schoolboy told off for snooping as “not British” austerely replies, “ “the secret service has to snoop. Where’d us British be if we didn’t? Beat by the Russians and the Japanese, and the FBI, that’s what”.  As AWB Brian Simpson charts, the 1950s, saw Britain trying to simultaneously build a postwar order with lipservice to human rights and the rule of law, while trying to keep it’s colonial territories and counter-insurgencies outside their jurisdiction. 

Crime in the Colony: Empire and the Golden Age Detective Novel

"Take all this business about Kenya," said Major Palgrave. "Lots of chaps gabbing away who know nothing about the place! Now I spent fourteen years of my life there. Some of the best years of my life, too."

Despite Major Palgrave’s central role in the plot of Agatha Christie’s A CaribbeanMystery, the readers never do get to know much about the “business in Kenya” or apart from the convenience of drowning, a chance remark by a Venezuelan tourist and a blackmailing housekeeper, do we know much of the Caribbean either.

In contrast, empire, in all its forms, courses through early English detective fiction. Wilkie Collin’s  The Moonstone, which set the rules for the early genre, centered on a diamond (named after the Hindu god Chandra) that was stolen during the Siege of Seringapatnam and a troupe of Indian jugglers. Dr Watson meets Holmes after being injured in service in the 2^nd Afghan War. The Indian Rebellion of 1857 drives the plot in the Sign of Four. Sumatran bacteria, Lime house Opium dens, comrades from the Boer Wars, mysterious Malays and Calcutta trained snake charmers menace who young women with swamp adders . It existed as part of the landscape, as a racial stereotypes, as a signifier of criminality, of oriental exoticism and shaping the political economy. An Indian student, Daulat Ras (“quiet and methodical”) is one of the key suspects in the Adventure of the Three Students, while the key antagonist in the Sign of Four is a blow dart wielding Tonga, from the Andaman Islands. Laura Otis even suggests that Holmes is the creation of a physician, who see’s the detective as protecting the “British nation” from the ills of contamination of the empire.  Holmes’s himself declares that he spent two years in Tibet after his “death” at the Reichenbach Falls (an episode delightfully reimagined by Jamyang Norbu in the Mandala of Sherlock Homes).

            In contrast, the Empire recedes from view in the Golden Age Detective Novel. Take for example, the work of Agatha Christie (whose first husband was born in Peshawar and the second worked as an archeologist in Iraq and Syria), the empire functions largely as a backstage to remove characters from the scene. Never doe’ll sons are sent off to Australia (Dumb Witness), mining prospects in Africa are occasionally "motives for murder (A Pocketful of Rye), grandchildren in Ceylon remove an eyewitness from the scene (4:50 fromPaddington) returning memsahibs struggle with the absence of a fleet of servants (Mrs McGinty’s Dead) and a policeman retiring from Malaysia (perhaps service during the insurgency) investigates a serial killer in an English Village (Murder in Easy). Earnest archaeologists (Murder in Mesopotamia), women politicians (Appointment with Death) and writers of salacious novels (Death on the Nile) may voyage to the east, but travel with a self-contained world of Home Counties Englishman and a smattering of temperamental Europeans. Historian Christopher Prior contrasting Christie’s pre-war and postwar fiction notes a general trend where the postwar books showed a spike in the number of murderers who had connections to or were born in the colonies. The “natives” are clearly ruled out as suspects, though occasionally a clever murderer might disguise themselves with a turban.  I pick Christie as the key example, because she is the third most published writer in  the English language, outsold only by William Shakespeare (and the Bible!) and sells more in India than in the UK at present. In contrast, her contemporaries with the exception of the New Zealand settings of Ngaio Marsh (a New Zealander herself) limit themselves to London squares and English country houses.

The central conceit of picking a Belgian detective, was Christie’s (and Poirot’s) self-awareness of how contemptuously the English viewed foreigners. Poirot self-consciously becomes more foreign, when he wants suspects to under-estimate him. Christie’s pre-war works are full of casual anti-Semitic and racist observances, made bearable only by the ruthless decimation of European nationalities, the French are mendacious, the Italians and Spaniards temperamental, the Americans are flashy and tasteless, and one character is gently dismissed with the words “Poor creature, she’s a Swede”.  Significantly, unlike say Holmes, race and nationality are never correlated to criminality. It was usually the “Old School Tie” wearing establishment Englishman or the gentle paragon of the Women’s Institute who was pouring strychnine into the soup.

            The one stock character is the retired colonial army officer/official, neatly summed up as Miss Marple listens to Major Palgrave drone on “somewhat uninteresting recollections of a lifetime”,

 “ It was a routine with which she was well acquainted. The locale varied. In the past, it had been predominantly India. Majors, Colonels, Lieutenant-Generals - and a familiar series of words: Simla. Bearers. Tigers. Chota Hazri - Tiffin. Khitmagars, and so on. With Major Palgrave the terms were slightly different. Safari. Kikuyu. Elephants. Swahili. But the pattern was essentially the same. An elderly man who needed a listener so that he could, in memory, relive days in which he had been happy. Days when his back had been straight, his eyesight keen, his hearing acute. Some of these talkers had been handsome soldierly old boys, some again had been regrettably unattractive, and Major Palgrave, purple of face, with a glass eye, and the general appearance of a stuffed frog, belonged in the latter category.”

Indeed, the stock character is so familiar, it allows a villain to disguise themselves as an Anglo Indian colonel with a turbaned Indian butler, choleric temper, gout and tables laden with Benares brass. But as Poirot points out, the “retired Anglo Indian army officer, a well-known comic figure with a liver and choleric temper” is “bogus, very bogus”. Empire is both an exit and a disguise. 

Hickory Dickory Death: Decolonizing London

            I want to briefly turn to Hickory DickoryDock  (1955),  the one Christie novel that has a sizable number of  non-White characters (apart from Death Comes as the End, which is set in Thebes in 2000 BC). An international student’s boarding house in London (built by knocking down through two Victorian townhouses) is disturbed by a series of mysterious thefts of items ranging from a diamond ring, a stethoscope, lightbulbs and bath salts. Set in the 1950s, it’s one of the few to reflect the changing composition of University of London students, it’s inhabitants include two Indians studying political science, a Jamaican law student, a West African, an Egyptian, an American Fulbright scholar, several Frenchwomen, a stolid Dutchman and two unnamed Turks and an Iraqi. Owned by a Greek proprietress (often drunk) and excitable Italian staff, it’s managed by a cheerful Englishwoman just returned from Singapore, which meant she “understood racial differences and people’s susceptibilities”. Scholarly appreciation of Christie, gingerly steps around Hickory Dickory Dock, embarrassed by the racial stereotypes and the extremely improbably plot that leads to 3 murders within 48 hours and the plausibility of three-way switch between a bottle of morphine, a bottle of bicarbonate of soda and a bottle of boracic acid.  The TV adaptation changes the settings to the 1930s and erases all the non-White characters from the script.

            This is one of the few Christie’s that gives a sense of a changing United Kingdom, and there are ways of reading her stereotypical representations against the grain . As Poirot’s secretary Miss Lemon remarks, “half our nurses in our hospitals seem to be black nowadays….and I understand much pleasanter and more attentive than the English ones”. The expansion of the National Health Service at the end of the Second World War had led to a severe shortage in medical personnel, which was met by increased recruitment of nurses from Jamaica and the Bahamas. Beginning with arrivals on Windrush, the Carribeannurses and medical professionals were integral to building the NHS and faced both arduous working conditions and racism. The passing acknowledgement in Christie’s murder mystery, comes up sharply in contrast with say the absence of Caribbean nurses in Call the Midwife, a contemporary TV show depicting the lives of midwives in East London in the 1950s (the first West Indian nurse joins the cast in Series Seven). With increasing numbers of students from the colonies/former colonies coming to the UK to study, London increasingly became a hub of anti-colonial activism in the 1950s, allowing the creation of networks across regions and colonies. Mitra Sharafi’s new work shows, several were studying law in the Inns of Court and would return to lead movements for political and social change in their homes. While colonial law students had been coming to London since the late 19th century, the second world war widened the demographics and politics. Wartime travel restrictions changed the requirements for legal training in London. Instead of spending two years in London to train at the Inns of Court, prospective students could do the first year of coursework in  their own countries and only spend nine months in the UK keeping their dinners and giving the qualifying exams. These changes opened up the profession to wider demographic, including women and students from working class backgrounds, including several lawyers who I follow in my current research.  Unlike the sons of merchants, colonial officials and landed gentry who came to study in the late 19th and early 20th century, the 1940s saw children of schoolteachers, railway engine drivers and small shopkeepers making their way to LOndon.  It is not surprising that Elizabeth Johnston, the Jamaican lawyer is described by Poirot as the most intelligent person in the hostel, is both studying law and is found to be card carrying member of the Communist Party.  This also makes student hostels, like the one on Hickory Road, a site for police surveillance 

            Christopher Prior classifies thenon-white cast into one of three stereotypes: arrogant and condescending; simple and credulous and excitable and temperamental. Yet, each of Christie’s stereotypes can be inverted to reveal something about the politics of the time. Take Elizabeth Johnstone, the Jamaican law student dismisses her American housemate’s feeling that something is wrong, as “her American way of thought. They are all the same, these Americans, nervous, apprehensive, suspecting every kind of foolish thing! Look at the fools they have made of themselves with their witch hunts, their hysterical spy mania and their obsession over communism”. As a left wing Carribean student, Johnstone is acutely aware of the McCarthy era witch hunts which were actively criticized for their departure from ordinary legal norms in London’s leftists circles. Pamplets were written on the Rosenberg prosecution and the Smith Act cases, and student groups debated and followed the American “Red Scare”.

            The West African student, Akibombo, discomfits his housemates by suggesting the murder is the result of a blood feud or an honor killing. While much of his description is a crude caricature, the actual solution involves convoluted family relationships, dressed up in modern scientific language.  Finally, the Indian medical student, Chandra Lal is dismissed as a suspect by Poirot, given that his mind is entirely occupied by “politics and persecution mania”, and indeed Lal is in full form, threatening to cause an international incident when his room is searched as part of the murder investigation and calling out his housemates for borderline racist humor. When the housemates express surprise at a “seemingly senseless” damage to Elizabeth Johnstone’s notes, Lal becomes “excited and voluble” pointing out this is “oppression, deliberate oppression of native races, contempt and prejudice, colour prejudice”. Christie intends Lal to be a figure of caricature, but reading him in the 21^st century, shows him to be astute, analogizing the narrative of “senseless violence” with the British who claim to not know, “Why the Mau Mau? Why does Egypt resent the Suez Canal”. The answers, he suggests are clear, well authenticated examples of racial oppression. With Indian independence, the postcolonial Indian state had emerged as a powerful voice in international affairs pointing out racial discrimination and arguing for decolonization. It successfully passed a General Assemblyresolution condemning the anti-Indian legislation in South Africa,  was engaged in drafting the UDHR, drew attention to atrocities carried out by colonial authorities in Malaysia and East Africa and sharply responded to racial discrimination against it’s citizens in the UK. The British state was both embarrassed and exasperated by Indian use of the international institutions and media, and believed them to by hypocritical given its military action in Hyderabad, Goa and Kashmir, and limiting of rights of its own citizens through constitutional amendments. As mysterious thefts plague the hostel, the other Indian student Gopal Ram just “smiles and says material possessions do not matter” but only because nothing has yet been stolen from him. 

My posts so far have largely looked at murder mysteries written by British authors with colonial settings, in my last post I will turn to a set of detective stories written by Indians, Singaporeans and Kenyans set in the same period.