21.3  
Journals link Search link Partners link Information link
Fall, 2003
Previous
Next
Law and History Review

Table of Contents
List journal issues
Home
Get a printer-friendly version of this page
 
 


FORUM: COMMENT


The CANZ Approach to Legal History

Peter Karsten


The first quality the reader may have noted about these two essays is that they both deal with the question of the legal rights of marriage partners to the economic fruits of one another's labor. But inasmuch as this was only one of several issues addressed by Bruce Kercher, I see it only as an interesting coincidence. Somewhat more noteworthy is the difference between their methodologies: Golder and Kirkby's engagingly crafted socio-legal analysis beautifully illustrates the "thick description" virtues of a case study of litigation, reform agitation and legislation, while Kercher gets us well beyond Alan Atkinson's pioneering study of his subject by carefully drawing evidence unavailable to Atkinson from some of the many cases that he and his research assistants have uncovered from manuscript and newspaper records over the past several years (decisions of the Supreme Courts of New South Wales and VanDieman's Land that are steadily becoming available to us all on two websites).1 Needless to say, both methodologies "work." 1
      That said, I want to draw the reader's attention to two more important qualities in these essays: There are powerful reasons for legal historians in the U.S. and U.K. to pay more attention than we do to our counterparts in Australia and, for that matter, those in New Zealand and Canada as well. In the first place, Canadian, Australian, and New Zealand (CANZ) legal historians engage in more comparative analysis than do most of the rest of us,2 and comparative analysis is a real virtue, enabling the reader to see how the law of colony/province/state A either evolved from, came to differ with, or led to, one sort of law rather than that which prevailed or was imposed in jurisdictions B, C, and D. The really effective comparative analysis also makes the case as to why this was so. 2
      Both of these essays are evidence of this tendency among CANZ legal historians. Golder and Kirkby place their account of the struggle in New South Wales for a Married Women's Property Law that would affirm the right to contract in the larger context of how that story was playing out in England, Victoria, Tasmania, South Australia, Queensland, and Western Australia. In addition, they relate their subject matter to similar reforms in New Zealand and North America. Kercher compares and contrasts the legal and customary status of transported British convicts in the American and Australian colonies, explaining the differences and why they existed. His analysis of convict treatment and felony attaint in the American colonies relies heavily on published work, which he supplements with three LEXIS-derived reports of late-eighteenth-century American cases, and he is more tentative in his conclusions about the American experience with felony attaint. A day spent searching the individual volume indices of the Archives of Maryland (72 vols., 1883–1972), the volumes of Henning's Statutes at Large (Va.) (1810–1823), and other such published historical series that are indexed in the excellent Virginia Historical Index3 suggests that a graduate student interested in the questions Kercher has raised about felony attaint in the American colonies could profitably reexamine the convict story from that perspective.4 Query in this regard: Could more be made of the formal shift in the legal treatment of convicts in mid-eighteenth-century Virginia that Kercher notes, which sounds a lot like the shift Kercher is describing in New South Wales in the 1820s and '30s? 3
      A final comparativist thought on the Kercher essay: His account of Justice Barron Field's formalism, which he links to the steady rise in the number of nonconvict British lawyers, suggested to me another—namely, Douglas Greenberg's comparable observation with regard to the increasing formality of the criminal law in mid-eighteenth century-colonial New York as greater numbers of attorneys arrived from the British Isles.5 In any event, the comparative approach has clearly enriched both papers. 4
      If I am right about this comparativist propensity among our CANZ counterparts, the question remains: Why is this so? I think that, first, historians of the United States have long displayed more "exceptionalist" traits than their CANZ counterparts, and, second, for over two hundred years, and especially in the past hundred and thirty years, the United States has possessed a federal government and Constitution with its Bill of Rights and Fourteenth Amendment that has so constrained state power as to draw the typical U.S. legal historian's interest away from the study of state legislatures and courts. Consequently, day after day, H-Law participants belabor one another with queries and responses that are often concerned solely with U.S. Supreme Court justices and their decisions. The Australian and Canadian Constitutions came into being roughly a century after that of the United States, and neither the high courts of Australia nor New Zealand, nor, until recently, that of the Dominion of Canada have been armed with a bill of rights. Hence their provinces and states have enjoyed longer significant legal histories of being free from the constraints of a local6 "federal" government. Therefore comparisons between (let us say) the law in New South Wales, Tasmania, New Zealand, South Australia, Victoria, and Western Australia, or between Newfoundland, Nova Scotia, Quebec, Ontario, and British Columbia appear to have been considered more meaningful than those between New York, Virginia, Missouri, Texas, and California. 5
      I do not mean to argue that the differences are more meaningful; in most regards, they are not. But while today's CANZ legal historians tend to compare their subject matter to comparable phenomena in other CANZ jurisdictions as well as those in the U.K. and (sometimes) the U.S., there is simply much less of that sort of thing going on in the comparable circle of U.S. legal historians. This is unfortunate, for while comparative analysis is not necessary in order to press back the Frontiers of Knowledge, it clearly helps to place those Frontiers into better perspective. 6
      What is my second reason that we in the U.S. and U.K. ought to be paying more attention to our CANZ counterparts? It is that a fair number of this generation of CANZ legal historians have greatly enriched our understanding of the tension/ interaction between "formal" law and "informal" law (custom),7 the virtue of which has been grasped more fully, perhaps, by at least as many nonlegal as legal historians in both the United States and the United Kingdom. 7
      And once again, both of these essays possess this quality.8 In Golder and Kirkby's essay, the power of custom, or popular norms, is revealed in the behavior of the jurors; in Kercher's, it is in the widespread custom of the governors, magistrates, and others in early New South Wales to entertain suits by ticket-of-leave holders and to sanction their ownership of property.9 8
      Perhaps I am mistaken and CANZ legal historians are not decidedly more comparativist and custom-oriented than their U.S. or U.K. counterparts. And perhaps CANZ legal historians can be faulted for leaving the U.S. experience out of their comparisons as often as they do.10 The fact remains that those of us who have regard for one or both of these approaches will profit by regularly consulting the pages of Law in Context and Legal History (formerly the Australian Journal of Legal History and the on-going volumes of the series: Essays in the History of Canadian Law and the Historical Perspectives on Law and Society in Canada. Reading is one thing; for the Full Monty join the handful of Canadian and U.S. legal historians who will be attending the three-day twenty-third annual conference of the Australia and New Zealand Legal History Society early in July next year in Perth. 9


Peter Karsten is a professor of history at the University of Pittsburgh <pjk2@pitt.edu>.


Notes

1.  See Bruce Kercher, "Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850," Law and History Review 21 (2003): 527–584. Hilary Golder and Diane Kirkby, "Mrs. Mayne and Her Boxing Kangaroo: A Married Woman Tests Her Property Rights in Colonial New South Wales," Law and History Review 21 (2003): 585–605.

2.  See, for example, Jeremy Finn, "Reverses in the Flow: English Adoption of Law from the Empire," paper presented at the Australia and New Zealand Legal History Society meeting, Melbourne, July 1998; and "'It Might Be Worth Trying It in Our Dominion': Adoption of Australasian Legislation by Canadian Legislatures in the Nineteenth Century," paper presented at the Legal History Conference, Australian National University, Canberra, Feb. 2000; Andrew Buck, John McLaren, Nancy E. Wright, eds., Land and Freedom: Law, Property Rights and the British Diaspora (Ashgate, 2001); John Weaver, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal: McGill-Queens University Press, 2003); Peter Coleman's Progressivism and the World of Reform: New Zealand and the Origins of the American Welfare State (Lawrence: University Press of Kansas, 1987) and his recent comparisons of the treatment of debtors in the United States and New Zealand; Paul Havemann, ed., Indigenous Peoples' Rights in Australia, Canada, and New Zealand (New York: Oxford University Press, 1999); John McLaren, Hamar Foster, and Chet Orloff, eds., Law for the Elephant: Law for the Beaver (Regina, Sask.: Canadian Plains Research Center, 1992); P. G. McHugh, "Maori Fishing Rights and the North American Indian," Otago Law Review 6 (1985): 65–94; Bernard Hibbitts, "Her Majesty's Yankees: The Use of American Authorities in the Courts of Victorian Nova Scotia," paper presented at the annual meeting of the American Society for Legal History, Richmond, Oct. 1996. For examples of comparativist work by legal historians of the U.S., see Peter Hoffer and N. E. H. Hull, Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York: New York University Press, 1981); David Konig, "Colonization and the Common Law in Ireland and Virginia, 1569–1634," in The Transformation of Early American History, ed. James Henretta, Michael Kammen, Stanley N. Katz (New York: Knopf, 1991), 70–92; David G. Allen, In English Ways: The Movement of Societies and the Transferal of Local Laws and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill: University of North Carolina Press, 1981); and Peter Karsten, Between Law and Custom: "High" and "Low" Legal Cultures in the Lands of the British Diaspora, 1600–1900 (New York: Cambridge University Press, 2002).

3.  ed. E. G. Swem, 2 vols. (Roanoke: Stone Printing, 1934–1936).

4.  For example, one indexed entry, in a volume of the first series of the William & Mary College Historical Quarterly (vol. 7, p. 113) reprints an item from the Salem (Mass.) Mercury for July 15, 1788, reporting the arrival at Fisher's Island of the brig Nancy with "140 convicts, taken out of the British jails," for distribution in New England. The captain, a half-pay naval officer, is reported to have received "51 sterling per head from the government" for his troubles, all of which sounds exactly like the new imperial system of transportation to New South Wales. Was the Nancy a mere aberration, a final shipment?

5.  Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca: Cornell University Press, 1976).

6.  A tiny fraction of the decisions of their high courts have been made subject to oversight by the Law Lords of Privy Council throughout the years, and the Colonial Office reviewed colonial statutes with care before the grant of Responsible Government, somewhat more circumspectly thereafter. The passage by the Imperial Parliament in 1865 of the Colonial Laws Validating Act relinquished virtually all further disallowance powers (one such exception: shipping). See David Swinfen, Imperial Control of Colonial Legislation, 1813–1865: British Policy towards Colonial Legislative Powers (Oxford: Clarendon, 1970); and Karsten, Between Law and Custom, 509–12.

7.  See especially Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996); Kercher, An Unruly Child: A History of Law in Australia (St. Leonards, NSW: Allen and Unwin, 1995); Stefan Petrow, "Resisting the Law: Opposition to the L. & W. Ry. Rate, 1872–1874," University of Tasmania Law Review 15 (1996): 77–104; Paula Byrne, Criminal Law and Colonial Subject: New South Wales, 1810–1830 (Cambridge: Cambridge University Press, 1993); Richard Hill, Policing the Colonial Frontier: The Theory and Practice of Coercive Social and Racial Control in New Zealand, 1767–1867, 2 vols. (Wellington, N.Z.: U. R. Ward, 1986); Sean Cadigan, Hope and Deception on Conception Bay: Merchant-Settler Relations in Newfoundland, 1785–1855 (Toronto: University of Toronto Press, 1995); Susan Lewthwaite, "Violence, Law and Community in Rural Upper Canada," in Essays in the History of Canadian Law, ed. Tina Loo, Susan Lewthaite, and Jim Phillips (Toronto: University of Toronto Press, 1994), 2:353–86; Carol Wilton, Lawless Law: Conservative Political Violence in Upper Canada, 1818–41," Law and History Review 13 (1995): 111–36; Paul Romney, "From the Types Riot to the Rebellion: Elite Ideology, Anti-legal Sentiment, Political Violence and the Rule of Law in Upper Canada," Ontario History 79 (1987): 113; Greg Maquis, " 'A Machine of Oppression under the Guise of Law': The St. John Police Establishment, 1860–1890," in Historical Perspectives on Law and Society in Canada, ed. Tina Loo and Lorna McLean (Toronto: Copp Clark Longman, 1994), 200–218; Steven Kenny, "'Cahouts' and Catcalls: An Episode of Popular Resistance in Lower Canada at the Outset of the Union," in Historical Perspectives on Law and Society in Canada, ed. Loo and McLean, 74–94; Judith Fingard, Jack in Port: Sailortowns in Eastern Canada (Toronto: University of Toronto Press, 1982); H. Robert Baker, "Creating Order in the Wilderness: Transplanting English Law to Rupert's Land, 1835–1851," Law and History Review 17 (1999): 209–46.

8.  Among the examples of U. S. and U.K. nonlegal historians who have illuminated this tension between law and custom are Wilbur Miller, Revenuers and Moonshiners: Enforcing the Federal Liquor Law in the Mountain South, 1865–1900 (Chapel Hill: University of North Carolina Press, 1991); David Thelen, Paths of Resistance: Tradition and Dignity in Industrializing Missouri (New York: Oxford University Press, 1986); Sung Bok Kim, Landlord and Tenant in Colonial New York (Chapel Hill: University of North Carolina Press, 1978); Alan Taylor, Liberty Men and Great Proprietors: The Revolutionary Settlement on the Maine Frontier, 1760–1820 (Chapel Hill: University of North Carolina Press, 1990); Edward Ives, George Magoon and the Down East Game War: History, Folklore and the Law (Urbana: University of Illinois Press, 1988); Donald Pisani, "'I am Resolved not to Interfere but permit all to work freely': The Gold Rush and American Resources Law," California History 77 (1998–99): 123; Stephan Aron, How the West Was Lost: The Transformation of Kentucky from Daniel Boone to Henry Clay (Baltimore: Johns Hopkins University Press, 1996); E. P. Thompson, Customs in Common (New York: New Press, 1991); Jane Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1750–1820 (New York: Cambridge University Press, 1993); and C. Earle, "Custom, Class Conflict and Agrarian Capitalism: The Cumbrian Customary Economy in the Eighteenth Century," Past & Present 110 (1986): 106–33. (I do not mean to say that there are only a few U.S. legal historians who attend to this tension. But not enough of us consider research agendas comparable to the one suggested in Dirk Hartog's "Pigs and Positivism" (Wisconsin Law Review [1985]: 899–927). For examples of some that have, see, for example, David Konig, Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill: University of North Carolina Press, 1979); Stuart Banner, "Written Law and Unwritten Norms in Colonial St. Louis," Law and History Review 14 (1996): 33–80; Leslie Reagan, When Abortion was a Crime: Women, Medicine and Law in the U. S., 1867–1973 (Berkeley: University of California Press, 1997); and Karsten, Between Law and Custom.

9.  What Kercher refers to as "an American notion of convict transportation," with the shipmasters having property of their convicts' labor, is, of course, based on an imperial statute, not a custom.

10.  Obviously I am not including either of these essays or the work of folks like Peter Coleman or P. G. McHugh in this grievance, but it is true of a number of other such efforts from the circle of CANZ legal historians.

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.

 



Fall, 2003 Previous Table of Contents Next