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This issue of The Law and History Review contains
articles that pursue the significance of law and legal processes
from early modern France to mid-twentieth century Texas. In these
articles, the authors investigate law both as a mode of procedure
and as a medium in which "great" questions--of sovereignty,
nationalism, jurisdiction, citizenship, race, and identity--are
given potent effect.
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In our first article, Sarah Hanley
presents an account of the wide-ranging historical implications
of the activities of sixteenth- and seventeenth-century French jurists--lawyers,
judges, and writers--later known as the Arrestographes. Adopting
a historical and comparative view of society and law, engaging in
judicial activism, and advancing a national legal theme on French
cognizance of marital affairs, the Arrestographes abandoned the
norm of judicial secrecy and instituted the practice of judicial
publicity. To inform "the public" at large, they collected,
printed in French, and sold volumes of "notable" decisions
(arrêts) sought by women and men who pursued legal information
to avoid the risks wrought by legal change touching marital union
and family formation. By challenging traditional precepts of Roman
law and canon law and amending French customary law, jurists and
governments formulated a French Marital Law Compact unique in Europe.
Despite church protests, marital affairs, subjected to precedent-setting
arrêts and the edicts they provoked, were removed (on appeal)
from church jurisdiction and canon law and brought under state cognizance
and French law. The system of "French jurisprudence" thus
developed, characterized as the "jurisprudence of the arrêts,"
framed a shared public space named "civil society," which
bridged society and state and underwrote French claims to political
sovereignty as a nation in Europe. Welded from elements of language,
culture, custom, and law and distinguished from others in Europe,
this juridically based notion of a sovereign French nation supplied
the core concept from which modern notions of nationalism would
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Our second article, by George F.
Steckley, examines civil litigation in the Admiralty Court of seventeenth-century
London. The growth of shipping traffic during the century resulted
in numerous collision cases for the civil lawyers at this court.
A sample of this litigation reveals that a dispute involving the
collision of two ships in open sea or a crowded river was often
difficult to resolve and that Admiralty judges responded with sensible
new remedies. They began early in the century to recognize contributory
negligence and to reduce damage awards accordingly. By 1675 they
had provided a no-fault doctrine, including a formula for summing
all losses from the mishap and dividing them equally between plaintiff
and defendant. Civil law process was generally suitable for collision
cases, even if the new substantive rules seem to have had the effect
of prolonging litigation. But Admiralty judges, despite their resourcefulness,
suffered a sharp contraction in their instance business during the
last third of the century. Evidence from collision cases suggests
the extent to which common lawyers and their writs of prohibition
were responsible for this decline.
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Our third article, by Mae M. Ngai,
examines the advent of mass illegal immigration and deportation
policy under the Immigration Act of 1924. Ngai argues that numerical
restriction created a new class of persons within the national body--illegal
aliens--whose inclusion in the nation was at once a social reality
and a legal impossibility. This contradiction challenged received
notions of sovereignty amd democracy in several ways. First, the
increase in the number of illegal entries created a new emphasis
on control of the nation's contiguous land borders, which reconstructed
national borders and national space in ways that were both highly
visible and problematic. Second, the application of the deportation
laws gave rise to an oppositional political and legal discourse,
which imagined deserving and undeserving illegal immigrants and,
concomitantly, just and unjust deportations. These categories were
constructed out of modern ideas about crime, sexual morality, the
family, and race. As a result, during the 1930s, deportation policy
became the object of legal reform to allow for administrative discretion
in deportation cases. Just as restriction and deportation "made"
illegal aliens, administrative discretion "unmade" illegal
aliens. Admistrative law reform became an unlikely site where problems
of national belonging and inclusion played out.
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The issue's Forum, on Mexican Americans
and whiteness in twentieth-century Texas, pursues further the examination
of inclusion and exclusion in law, this time from the perspective
of racial identity. As the first Forum author, Clare Sheridan, points
out, Mexican Americans have occupied an ambiguous position in the
nation's legal and social orders. Legally white, but treated as
nonwhite, discrimination against them was not by statute and therefore
not remedied by law. Sheridan focuses on Hernandez v. Texas (1954),
in which the plaintiff moved to quash his indictment because Mexican
Americans were systematically excluded from jury service. Civil
rights lawyers were confronted with a paradox: because Mexican Americans
were classified as white, lower courts held that they were not denied
equal protection under the Fourteenth Amendment. Since Mexican Americans
were tried by juries composed of their racial group--whites--their
constitutional rights were not violated. Sheridan uses rhetorical
anaysis to discuss the implications of the arguments in Hernandez,
which held that "nationality" groups could be protected
under the Fourteenth Amendment. She analyzes the terminology chosen
by state attorneys, Mexican American activists, and the Supreme
Court of the United States to construct Mexican Americans' place
in the constitutional order and to define their participation as
citizens. Sheridan's use of Hernandez to explore the congruence
of whiteness with American identity leads her to conclude that the
composition of juries reveals America's national self-conception
as racialized.
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In the second Forum article, Steven
H. Wilson examines challenges to school segregation brought by Mexican
American civil rights advocates to reflect further on issues of
identity. Mexican Americans, he tells us, were slow to embrace the
constitutional substance of the landmark 1954 Brown v. Board
of Education. A long-prominent minority with their own history
of successfully litigating, Mexican Americans could draw upon a
succession of favorable judicial opinions to vindicate their community's
civil rights claims. In the years that followed Brown, they
deliberately disregarded its usefulness to achieving their goals
and intentionally distanced their claims from the race-based elements
of the Brown decision. This was because Mexican American
lawyers--in numerous complaints, briefs, and courtroom arguments--continued
to rely on a canon of judicial precedents established in both federal
and state courts that, under the laws of Jim Crow, Hispanics were
members of the "other white" race. As a result, the revolution
in civil rights litigation that commenced with Brown bypassed
Mexican Americans until the late 1960s. His article describes why
and with what result Mexican American lawyers avoided making significant
new claims under the revolutionary decision that African Americans
found indispensable. Wilson then recounts a line of Texas state
and federal trials to show how and why the "other white"
legal stategy evolved until Mexican American lawyers finally argued
in the late 1960s that Brown implicitly applied to and condemned
discrimination of Mexican Americans, just as since the mid-1950s
the decision had explicitly applied to and condemned the segregation
of African Americans.
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Ariela J. Gross continues the Forum
with a commentary that addresses both articles and further explores
the questions they raise. The Forum concludes with the two authors'
responses. The issue is rounded out by our normal selection of book
reviews. Users are encouraged to read the LHR on the web,
at www.historycooperative.org/home.html, and to visit the LHR's
own web site, at www.press.uillinois.edu/journals/lhr.html, where
they can browse the contents of forthcoming issues, including abstracts
and selected full-text "pre-prints" of articles.
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Christopher Tomlins
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American Bar Foundation
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