Tag Archives: Economic history

John Noonan, judge and historian

John T. Noonan Jr. - photo Kenneth Pennington, 1998

John T. Noonan Jr – Erice,1998 – photo Kenneth Pennington

Should an historian act as a judge, pronouncing verdicts on the past? Should a judge express views about the past or even use the past for his judgments? How can legal history help judges? Can you imagine that knowing about the history of medieval canon law, a subject seemingly quite distant from modern times, can prepare someone to become a respected judge? For a moment you might think I seduce you to follow me in an experiment, but I had rather tell here about the experiences of a scholar and judge who dealt in his life with exactly the questions at the start of this post. On April 17, 2017 John T. Noonan Jr. died. He served for thirty years as a judge of the Ninth U.S. Circuit Court of Appeals in San Francisco. Before and during his period as a judge he did research in the field of medieval and modern canon law. Noonan (1926-2017) wrote also about American law in past and present. A number of obituaries have appeared which focus on his contributions as a judge. Here I would like to honour his achievements by looking at his work as a legal historian.

Near to major themes in law and society

The obituaries I have seen until now understandably focus on his work as a judge. In particular the obituary issued by the Ninth Circuit Court of Appeals mentions a number of major cases – with full references – to which Noonan contributed, sometimes with a dissenting opinion which was eventually followed by the Supreme Court of the United States. Even Wikipedia gives substantial quotes from these important cases in the article about Noonan. The obituaries in the San Francisco Chronicle and The New York Times single out his political independence. Noonan was a Catholic who opposed abortion, but he certainly could not be labelled conservative. In the Commonweal Magazine‘s obituary there is attention for Noonan’s clear views about liberalism, but also on Shakespeare and the lack of attention to the Bard’s religion. The Faculty Lounge has a short notice by Alfred Brophy about Noonan’s passing, but he redeems it by sending you to a moving tribute at the blog of Diane Marie Amann (University of Georgia). She goes straight to the heart of the matter by showing Noonan in action. If you prefer to skip the section here below about the impact of medieval canon law you are right to proceed to her fine post.

Noonan came from Boston and studied at Harvard University, Cambridge and the Catholic University of America. To mention only his academic posts, he was a professor at Notre Dame University between 1961 and 1966 and from 1967 onwards at the University of California at Berkeley (Boalt Hall). His first book was on a subject touching medieval canon law, theology and economic history, The scholastic analysis of usury (Cambridge, MA, 1957). In a modern textbook about medieval views of the economy [Diana Wood, Medieval economic thought (Cambridge, etc., 2002)] the two chapters about usury frequently refer you to Noonan’s book. Intention is one of the keys in understanding and defining usury and interest. His second book, Contraception. A history of its treatment by the Catholic theologians and canonists (Cambridge, MA, 1965; enlarged edition, 1986) appeared at a crucial moment in the history of the Catholic Church, in the aftermath of the Second Vatican Council when pope Paul VI created a commission to study contraception. He invited Noonan to participate in it as a consultant. Another study, too, brought medieval theology and canon law together [Power to dissolve. Lawyers and marriage in the courts of the Roman curia (Cambridge, MA, 1972)].

How authors come to a subject can be mysterious, but I think it is not entirely by chance that Noonan wrote about matters of life and death, in particular about moral conduct. Bonds dissolved or not are also at stake in his book on The Antelope : the ordeal of the recaptured Africans in the administrations of James Monroe and John Quincy Adams (Berkeley-Los Angeles, 1977). I could not resist going to the digital collection Slavery in America – discussed here in some detail last year – and to check for the presence of this case around a ship with slaves in 1820. Changing views on slavery are among the subjects in his study A Church that can and cannot change. The development of Catholic moral teaching (Notre Dame, IN, 2005). The personal conduct of judges through the centuries is the subject of Bribes. The intellectual history of a moral idea (New York, 1984). Many students of American law will know about his volumes with selected cases around religious freedom and the responsibilities of lawyers.

It is tempting to discuss here more of Noonan’s books which discuss developments in American law from a historical perspective, but I promised you to focus on medieval canon law. A fair number of Noonan’s articles can conveniently be consulted in the volume Canons and canonists in context (Goldbach 1997). Articles about medieval canon law appear not only in the few journals created for this field, but also elsewhere, sometimes in Festschriften. Thus the volumes in this series are most useful, also for the additions and corrections added by the authors. The bibliographical database of the Regesta Imperii (Akademie der Wissenschaften, Mainz) lists most of Noonan’s articles about medieval canon law.

Noonan wrote two major articles about the author of the Decretum Gratiani, a subject at the heart of the modern study of medieval canon law, because Gratian’s book is often seen as the core and cause of the very birth of medieval canon law. In the first article, ‘Was Gratian approved at Ferentino?’, Bulletin of Medieval Canon Law N.S. 6 (1976) 15-28, he investigates the historical evidence around a papal approbation of Gratian’s textbook. The second article, ‘Gratian slept here: the changing identity of the father of the systematic study of canon law’, Traditio 35 (1979) 145-172, is an object lesson in making distinctions about reliable and unreliable evidence. Noonan crushes sloppy thinking and careless repetition of unchecked information. Even his colleague at Berkeley, Stephan Kuttner, receives a frown at one point. Thirty years later Anders Winroth could establish at last some facts about the life of Gratian with certainty in ‘Where Gratian Slept: The Life and Death of the Father of Canon Law’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung 99 (2013) 105-128. Kenneth Pennington gives at his website a more colourful presentation of John Noonan’s work on Gratian, including the covers of some books and some remarkable photographs of Noonan.

Intention is a matter of concern in medieval canon law ever since its appearance in the twelfth century as a subject in medieval theology. It is through canon law that intention became a theme in criminal law. Judges were called upon to consider someone’s intentions. Stephan Kuttner, Noonan’s teacher in Washington, D.C., wrote the classic study tracing this development [Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX systematisch auf Grund der handschriftlichen Quellen dargestellt (Città del Vaticano 1935)] and Noonan clearly studied it in great depth. For Noonan the facts and intentions counted in judging historical situations. In his view facts matter indeed, because he wanted to judge cases, not persons. Some of his views of famous American judges can be found in Persons and masks of the law : Cardozo, Holmes, Jefferson, and Wythe as makers of the masks (New York, 1976). Noonan did not keep ethics and moral questions at a safe distance. Making the right judgments is only possible when knowledge of the law, insight into what consist justice and a fine-tuned and ever developing conscience come into action, or to put it more briefly, where mind and heart fully work together. It is exactly how Noonan impressed those who met him. Being a judge and a historian in one person is challenging, but he had the greatness to achieve this in a long and fruitful life.

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Two laws and one trial

Banner The Amboyna Conspiracy TrialSometimes even a history blog cannot escape from current affairs, but the opposite happens, too: a historical event comes unexpectedly into view and you keep thinking about it. A few weeks ago I encountered the project The Amboyna Conspiracy Trial (Monash University) about a famous trial in 1623 on the island Ambon, part of the Moluccas islands in the southeastern part of the vast Indonesian archipelago, close to Sulawesi, East Timor, New Guinea and Australia, thus explaining the interest of a team at an Australian university led by Adam Clulow. Among the partners for this project launched in 2016 were the Roy Rosenzweig Center for History and New Media at George Mason University, the Dutch Nationaal Archief in The Hague and the India Office Records of the British Library. The website of the project invites the users to ponder the question on which side they stand. In particular the educational aspects of this website merit attention. Here I use both Ambon and Amboina to refer to the island.

Yet another reason to write here about the Dutch East India Company is the upcoming exhibition at the Nationaal Archief in The Hague, De wereld van de VOC [The World of the VOC] that will be on display from February 24, 2017 to January 7, 2018.

A clash of emerging empires

Poster "De wereld van de VOC" - Nationaal \archief, Den Haag

The story of the trial in 1623 is seemingly simple and straightforward. The Dutch authorities on the island Ambon, officials of the Dutch East Indian Company, arrested a Japanese soldier who had behaved suspiciously. Under torture he and fellow Japanese mercenaries confessed to know about a conspiracy of the English to capture the Dutch fortress. In a span of two weeks Englishmen, too, were captured and tortured to gain confessions. Under Dutch criminal law torture was considered one of the legal means in a trial. The Early Modern maxim “Tortura est regina probationum”, torture is the queen of proves, is not mentioned at the project website. On March 9, 1623 twenty prisoners were executed by the Dutch.

The creators of the Amboyna website are quite right in seeing this trial as a focus point of history. The Dutch and the English competed for the most profitable trade in spice. In fact the name of the Moluccas in Dutch – now in Dutch Molukken – was for many years “Specerij-eilanden”, The Spice Islands. A treaty signed in 1616 seemed a rather peaceful start of Dutch relations with the inhabitants of the Moluccan Islands, but in 1621 governor Jan Pieterszoon Coen decided to invade these islands, aiming in particular at Banda, known for its nutmeg, apart from Grenada the only spot on earth where you can find large quantities of this fruit which also produces yet another spice, mace.

Treaty with Banda, 1616

From 1610 to 1619 Ambon was the central location of the Dutch overseas empire in South East Asia. Coen and his troops killed in 1621 thousands inhabitants of Banda and the surroundings islands on the pretext that they had broken the treaty by trading with other nations than the Dutch, be they English, Spanish or Portuguese. This background of ferocious and ruthless violence close to genocide did not predict a peaceful continuation of relations with the indigenous people nor with other European countries. It is indeed the very story that forever divides those applauding the Dutch energy and colonial expansion, and those who condemn the events and the whole period as an unforgivable and inhuman step in mankind’s history. A few years ago one of the episodes of the television series on the Dutch Gouden Eeuw (Golden Age) centered around the 1621 massacre at Banda (the fifth episode, Een wereldonderneming [A world enterprise]. In January 1623 Coen was succeeded as governor of the Dutch Indies by Pieter de Carpentier.

The website of The Amboyna Conspiracy Trial gives you a timeline with for each day the texts of the confessions made by the arrested suspects. Four exhibits give you a chance to deepen your knowledges about the two East India companies and the spice trade, the role of Japanese mercenaries, trials in Dutch and English law and the uses and role of torture, and the publicity about the trial. Adam Clulow wrote about the Japanese soldiers in his article ‘Unjust, cruel and barbarous proceedings : Japanese mercenaries and the Amboyna incident of 1623’. Itinerario 31 (2007) 15-34. More recently he published The Company and the Shogun: The Dutch Encounter with Tokugawa Japan (New York, 2014), reviewed for example by Martine van Ittersum for the Bijdragen en Mededelingen betreffende de Geschiedenis der Nederlanden / Low Countries Historical Review 130/4 (2015). Her main criticism is Clulow’s insufficient information about sources in Dutch and Japanese archives. When eventually news of the trial reached Europe, it sparked off a stream of publications. Just browsing the Knuttel, the famous catalogue of Dutch pamphlets shows you a substantial rise in the number of pamphlets issued in 1624 and 1625, but English pamphleteers were even more active. The website features in the “Archive” section only pamphlets in English. You will find in this section some twenty-five sources and a number of paintings and portraits.

Placcaet, Knuttel no. 3548 - image The Memory of the Netherlands

“Placcaet…”, an ordinance against the first pamphlet concerning the Amboina trial – Knuttel no. 3548 – copy Royal Library, The Hague – image: The Memory of the Netherlands

The presentation of sources for The Amboyna Conspiracy Trial should indeed alert you to what you see and read. For many documents a brief analysis of the text and impact is given, but not for all documents. Some items show just one page of a pamphlet or archival record. No pamphlet is presented here in its entirety. For documents in Dutch a partial translation is given, but no transcription. One of the pamphlets, Waerachtich verhael vande tijdinghen gecomen wt de Oost-Indien (…). Aengaende de conspiratie ontdeckt inde eylanden van Amboyna (Knuttel no. 3547), online at the portal The Memory of the Netherlands, originally printed in Gothic script (Knuttel no. 3546) was quickly translated into English as a part of the pamphlet A true relation of the unjust, cruell, and barbarous proceedings against the English at Amboyna in the East-Indies (London 1624; digital version at The Memory of the Netherlands). In its turn a Dutch translation appeared of this English reaction (Knuttel no. 3549, online version). The Amboyna project site does not mention nor contain the ordinance (plakkaat) of the Dutch General States forbidding in August 1624 the distribution of the first pamphlet because it would harm the relations between the Dutch and English East India companies [Placcaet… (The Hague 1624; Knuttel no. 3548, online version)]. Clearly this act did not work to suppress the news of the events in the East. Anyway thanks to the original contemporary translations it is substantially but not completely possible to rely on them.

The database The Early Modern Pamphlets Online for Dutch pamphlets and the German Flugschriften does still work despite an announcement about it being shut down on January 1, 2017. You can freely use this online catalogue, instead of going to the subscribers-only commercial version. The Hathi Trust Digital Library has digitized the catalogue of pamphlets held at the Dutch Royal Library [W.P.C. Knuttel (ed.), Catalogus van de pamfletten-verzameling berustende in de Koninklijke bibliotheek (9 vol., The Hague 1890-1920)], and you can use the search function of this version to search in its text.

The “citations” for the archival items and documents at the Amboina website are the titles of the items, with sometimes a very much abbreviated indication of the location and archive. For the colorful painting in the Museum Rumah Budaya in Banda Neira no indication is given when it was created. I can imagine this is exactly the question teachers or instructors want their students to solve. The image of the 1616 treaty with Banda above is marked “Contract with Banda, 3 May 1616”. Here, too, you might think it would spoil the things students have to do if I would give here more information about this source. I had expected a list with full references for all items in an appendix to the project, tucked away in the teachers’ corner. The start page of the digital project shows part of an engraving showing the torturers and their victims. In a corner of the image you can find a reference in small print giving the reference to this image from the collections of the Rijksmuseum (object no. RP-P-OB-68.279, cat. no. FMH 2328-7). The engraving was published in 1673, not nearly fifty years earlier.

Header TANAP Archives

However, when you start checking you will find several textual witnesses to this treaty, thus making it seem that the image of this treaty – or any other archival record – was taken at random among the registers and originals held at the Dutch Nationaal Archief. The TANAP portal is a great gateway to search for many aspects of the Dutch East India Company both in Dutch, British, Sri Lankan and Indonesian archives. In the combined inventories you will find at least three items with the 1616 contract. The important point is that these inventories do not provide you with digitized images, hence the usual need for good references for documents and images. I would almost leave it to you to search in the TANAP portal for the events at Ambon, but I feel rather certain one of the registers used is Nationaal Archief, inventory 1.04.2, no. 1080, because “VOC 1080” is often mentioned in the citations. Inventory 1.04.02 at the website of the Nationaal Archief contains more than 4 million scanned pages, but not for this register.

If you want mores images at your screen you can combine the riches of The Memory of the Netherlands with for example the portal Atlas of Mutual Heritage. The TANAP portal has a fine links selection, and the introduction to the history of the VOC by F.S. Gaastra is most substantial and supported by a fine bibliography. For more links you should visit the site of the VOC-Kenniscentrum. An important general source are the reports of the governors of Ambon, edited by G.J. Knaap, Memories van overgave van gouverneurs van Ambon in de zeventiende en achttiende eeuw (The Hague 1987), digitized by the Huygens Instituut, and you will no doubt be interested in the digitized resolutions of the Dutch Staten Generaal from 1575-1630.

The educational purpose of the trial website is very clear in the section Your Verdict. Six major questions are fired at you to help you to come to a balanced verdict about the trial. In my view it is one thing to ask these questions, and another thing to create real full access to relevant documents. However judicious the choice of selections, however wise the suggestions for analysis, you will learn from having at your disposal images of the complete documents, transcriptions and translations, with full references to track them again, and this holds true also for paintings and portraits. This lack of exact information mars the quality of this digital collection. The team has in mind to create similar projects around two other conspiracy trials, but now it seems at some turns that some basic information has been left out to create a smooth and convincing selection. Your judgment on these matters will also depend on your preference for a working educational project which stresses the importance of independent thinking and weighing of facts and views, certainly a major and important aim, or a preference to create a showcase for doing real historical research around a historical cause célèbre.

Amidst of all things surroundings this case it is instructive to see the shocked reaction at Batavia (Jakarta), since 1619 the VOC headquarter at Java, of the superiors of Isaacq de Bruijn, the Dutch advocate-fiscal, the senior officer leading the investigation at Ambon. We have to bear in mind that the position of the various members of the VOC united in a number of kamers (chambers) in Amsterdam, Rotterdam and other cities, and the Staten Generaal in The Hague was many thousand miles away. The interaction between the two circles, and even between Java and Ambon was not quick to say the least. It reminded me of a famous article by the late Cees Fasseur (1938-2016), ‘Een koloniale paradox. De Nederlandse expansie in de Indonesische archipel in het midden van de negentiende eeuw (1830-1870)’ [A colonial paradox. The Dutch expansion in the Indonesian archipelago in the mid-nineteenth century (1830-1870)], Tijdschrift voor Geschiedenis 92 (1979) 162-186. It is the model article in a student guide by P. de Buck for writing history papers and master theses, Zoeken en schrijven : handleiding bij het maken van een historisch werkstuk (first edition Haarlem 1982). It seems this configuration of powers and distances can be dated two centuries earlier.

Meanwhile in Holland

Is this only a Utrecht view of things? Let me at least bring you to a diary of someone from Utrecht who could in principle have had first hand knowledge. Aernout van Buchell (Buchelius) (1565-1641) from Utrecht has figured here a few times already. He was not only interested in history, but was also between 1619 and 1621 a member of the Amsterdam chamber of the Dutch East India Company as a delegate of the States of Utrecht. In 2011 Kees Smit made a transcription (PDF) of a manuscript by Van Buchell at the Nationaal Archief [1.11.01.01, Aanwinsten Eerste Afdeling, 256 (old 1882 A VI 8 2)]. It contains some drawings, including a map showing Ambon and a drawing of Fort Amboyna (f. 37v-38r). At f. 102v he wrote in May 1624: “Het jacht, dat den 4. januarii 1624 was van de stat Nieu Batavia ofte Jacatra uuyt Java geseilt, is in mayo gearriveert, brengende tijdinge dat drie schepen, wel geladen, veertien dagen ofte drie weecken, als men verhoopten, soude volgen, ende noch drie schepen bijcans toegerust lagen op de custen van Cormandel. Verhaelden meede van eene conspiratio bij eenige Engelsche ende inwoonders op Amboyna, meinende het casteel aldaer te veroveren. Maer waren gemelt, eenige gevangen, sommige gejusticeert, oeck Engelse. Waerover men seyt, dat den coninc van Groot-Britanniën qualic soude tevreden wesen, van sijne oorblasers opgeritzt. Alsofte men de quaetdoenders niet en behoorden te straffen! Ende die mosten in Engelant geremitteert worden.”

Van Buchell starts telling about the yacht arriving from Batavia on January 1624, and six more ships following within a number of weeks. From “Verhaelden” onwards he jotted down notes about the events at Ambon and his opinion, in my translation: “[They] told also about a conspiracy – note the Latin conspiratio, OV – of some Englishmen and inhabitants of Amboina who aimed at capturing the castle. But they were denounced, some captured, some judged, Englishmen too. As to this it was said the king of Great Britain would hardly be pleased, but – more likely – provoked by his advisors. As if these wrongdoers did not need to be punished! Most of them are being pardoned in England”. Alas these are is only notes about this affair, he does not mention it anymore. To me this one note is tantalizing for all the things Van Buchell does not mention, but it is in my view a superficial report showing his first impressions after hearing something about the fateful events at Ambon. He mentions Ambon sixty times in this diary.

Perhaps more telling are lines in an undated Latin poem Van Buchell wrote in his diary (f. 74r): Vidimus, Oceanus salsis quod circuit undis / Incola odoriferos ter ubi capit arbore fructus / Amboynae Batavus leges ubi condidit aequas / Fragrantes interque nuces collesque calentes / Bandanos domuit populos, gentique dolosae / Imposuit frenum Javae, regemque fateri / Compulit, aut victum se aut armis esse minorem (…). A quick translation of my hand: “We see how the Ocean goes around with salt waves where an inhabitant takes thrice a year wonderful smelling fruits from a tree, where the Batave has set equal laws for Amboina, and [where] there are perfumed nuts amidst the hot hills; he rules the peoples of Banda, and he imposed a rein on the treacherous people of Java, and he forced the king to yield, be it as conquered or smaller in arms (…)”. The combination of being sure about the qualities of you own laws and a conviction that peoples on these isles are treacherous, is potentially lethal. It is striking how often Van Buchell writes in this diary about the Protestant missionaries in the Moluccas. There is another VOC diary by Van Buchell yet to be explored [The Hague, Nationaal Archief, inventory 1.11.01.01, Aanwinsten Eerste Afdeling, no. 255 (old 1882 A VI 8 1)].

Now you might want me to leave out Van Buchell, but in fact it helped me to notice the most obvious gap of the trial website. It is rather strange to bother about the full texts, complete transcriptions and translations of documents, and to accept at face value the statements about the differences in criminal procedure in Dutch law and the common law. Instead of translating Van Buchell writing about an analysis by Hugo Grotius would be most welcome. You can consult his correspondence online at the eLaborate platform of the Huygens Instituut. However, Grotius does mention the Amboyna case in his letters only casually. In 1609 Grotius published Mare Liberum, and in 1625 De iure belli ac pacis. His Inleidinge tot de Hollandsche rechts-geleerdheid appeared only in 1631, but this book deals only with private law. Clulow mentions Grotius and the Amboina case in his 2014 study. In an earlier contribution about Grotius I provided ample information about the first editions, online versions and translations of his works. Simon van Leeuwen’s classic handbook for Roman-Dutch law, Paratitla iuris novissimi dat is een kort begrip van het Rooms-Hollands reght (..) appeared only in 1651.

While pondering the Amboina case and the project website I remembered another Utrecht view of things. My first steps in the fields of legal history were led by Marijke van de Vrugt at Utrecht, the author of a book about De criminele ordonnantie van 1570 (Zutphen 1978), a study about the ordinance for criminal procedure issued by Philips II of Spain. A few years later she contributed to the series Rechtshistorische cahiers the volume Aengaende Criminele Saken [About Criminal Matters] (Deventer 1982) about the history of criminal law, with a chapter about the 1570 ordinance, and also one about Antonius Matthaeus II (1601-1654), a famous law professor at Utrecht, author of De criminibus (first edition 1644). Van de Vrugt provided judiciously chosen relevant text fragments. She discussed in detail ch. 42 of the 1570 Criminal Ordinance and explains its fateful ambiguity due to unclear words about the exceptional use of torture. Matthaeus questioned the eagerness to use torture. Would it not be most natural to provide for both Dutch and common law more precise information when they clearly were crucial for the whole affair? Lack of space and consideration for the stamina of my readers are the practical reasons to leave out here a paragraph about the common law. Clulow mentioned in 2014 the Amboina case to compare it with a later case in Japan, and pointed for good reasons to Grotius. Alas incomplete understanding and investigating the pivotal role of legal matters for the Amboina case mars the trial website.

Some conclusions

Despite my remarks and misgivings about a number of aspect of the Amboyna digital collection I think we should salute it as a welcome addition to the materials available for educational purposes. It makes also a number of documents and images easy available for doing research about the Dutch and British East India companies. At the end of this post I wonder a bit what the input of the India Office Records has been. The absence of records from the British National Archives might cause a frown, too. Adding a full list of references for the documents, archival records and images in this digital collection would redeem a clear gap. The Amboina Conspiracy Trial makes you muse about current ideas about conspiracies and the role of one-sided or full information. It is an example of two laws clashing, Dutch civil law administered by officers of a commercial company granted sovereign powers and the common law. It is chilling to note how this example of quick action led to torture and judicial killings of people where other ways to approach the situation were open.

The Amboina trial website shows many aspects in a colourful way, but it lacks some crucial information about and attention to the very crux of the matters at stake. It would be relatively simple to provide some background about the Dutch law and the common law, instead of just a few sentences. It might seem evident to focus on the trial itself, but you will have to show even in an educational setting more of the background and relevant sources. Only for Isaacq de Bruijn, the infamous Dutch official, things seemed simple. Our world is complicated, and we had better face it. In my recent contribution about presidential libraries I mentioned the replica of the Situation Room. You will need access to all relevant information, time and wisdom to judge a situation correctly and act accordingly.

A postscript

Even this long post did lack at least something very important concerning Dutch law, the collection of ordinances and placards edited by Jacobus Anne van der Chijs, Nederlandsch-Indisch Plakaatboek 1602-1811 (17 vol., Batavia, 1885-1901), also available online completely at Sejarah Nusantara, a portal for seventeeth and eighteenth-century history created by the Arsip Nasional Republik Indonesia, with both browse and search functions.

The Schelde river, a disputed boundary

The Low Countries owe their importance not only to political developments. Geographic conditions play a major role, too. The picture of the Netherlands as a country below sea-level in the Rhine and Meuse estuaries has become a cliché. More to the south another river, too, had formed a mighty estuary. The Schelde, in English often spelled Scheldt, and in French known as the Escaut, has formed an estuary in Flanders and in the Dutch province Zeeland. In particular the Westerschelde has played an important role in Dutch and Belgian history. Cities such as Ghent and Antwerp own part of their prosperity to their position on the Schelde river. The Westerschelde is at some points the border river between Belgium and the Netherlands. In this post I will look at a number of the conflicts around this river.

Scheldt River Collection, Peace Palace LibraryTracing the history of these conflicts has become easier thanks to the Peace Palace Library in The Hague which has created a digital Scheldt River Collection with some 300 publications, 35,000 digitized pages in all. These publications are not only in Dutch and French, but also in other languages. The Peace Library devoted in 2015 a Library Special on its website to the Schelde with a link to a report on the current situation of this river and a list of the main conflicts and events since 1585, The Scheldt estuary case: From conflict to cooperation. In this contribution I will look both at the history of conflicts about the Schelde and at the digital collection of the Peace Palace Library.

Centuries of conflicts

The navigation on the Schelde had been already an issue long before the Belgian independence in 1839. During the Dutch Revolt in the sixteenth century the blockade of the Schelde massively damaged the trade to and from Antwerp, and prompted many Flemish merchants to go to the North. Amsterdam’s growth in economic power around 1600 is to a substantial degree due to an influx of merchants from Flanders, their talents and networks. However, this period does not come into view in the digital collection. The Peace Palace Library has digitized books from its own collection. Apparently fifteen works from 1784 and 1785 are the earliest available. Among these works is a treatise by someone more famous for his role in French history. Honoré Gabriel de Riqueti, comte de Mirabeau (1749-1791) published a treatise with the title Doutes sur la liberté de l’Escaut, réclamée par l’empereur; sur les causes & sur les conséquences probables de cette réclamation (London 1785). It was this work that brought Mirabeau to the attention of the general public in France. The Peace Palace Library digitized also a contemporary Dutch translation of this treatise. Some of the digitized publications discuss the role of the Schelde in Dutch and Belgian history starting with the medieval period, for example Charles Terlinden’s study ‘The History of the Scheldt’, History 4 (1920) 185-197, 5 (1921) 1-10, which sparked immediately a reaction from a Dutch historian, F. de Bas, ‘Another version of the Scheldt history’, History 5 (1921) 159-170.

The rivalry between the Dutch North and the Flemish South has not been the only cause for conflicts. The Dutch neutrality during the First World War made matters even more acute. After the First World War the attempts at a new treaty about the Schelde and the proposals to build a canal between the Schelde and the Rhine-Meuse estuary failed in the end in 1927 after heated national debates. More than one hundred publications in the digital collection bear witness to this prolonged affair. Legal historians, too, looked at the Scheldt question. The digital collection contains two publications by Ernest Nys, ‘Les fleuves internationaux traversant plusieurs territoires : l’Escaut en droit des gens’, Revue de droit international et de législation comparée 5 (1903) 517-537 (1903), and L’Escaut en temps de guerre (Brussels 1910). In 1940 Eduard Maurits Meijers published his study ‘Des graven stroom’, Mededelingen van de Koninklijke Nederlandse Akademie der Wetenschappen, Afdeling Letterkunde, new series, 3/4, pp. 103-205, in which he traced the medieval claims and jurisdictions on the several branches of the Schelde. Meijers thoughtfully added transcriptions of the main documents he discussed. In 1953 Chris van der Klaauw, between 1977 and 1981 the Dutch minister of foreign affairs, defended his Ph.D. thesis in history about the interwar relations between the Netherlands and Belgium [Politieke betrekkingen tussen Nederland en België, 1919-1939 (Leiden 1953)].

Map of the Schelde estuary, 1784

The search function for this digital collection is rather restricted. There is only a free text search field. A bit more disturbing is the chronological order of presentation. At the very end of the chronological list you will find some publications with the year of publication marked 19XX and also those with the year of publication between parentheses. All digitized publications are only available as PDF’s. It would be very helpful to have a map of the Schelde estuary, or better, a series documenting not only the changing Dutch and Flemish frontiers, but also the changing shapes of the various isles of Zeeland, lands newly reclaimed and added as polders, and the changing river branches. Mirabeau already added a map to the first edition of his treatise in 1784. The second edition mentioned the presence of a map explicitly in the title. As a solace I offer here a screen print of the map in the digitized copy of the first edition. If you want to pursue a search for digitized old maps you might want to look about my contribution of last year about 200 years Dutch cartography and historical-geographic information systems.

Banner EHB

How wide is the coverage of this digital collection? I could not help thinking of visiting the website of i-Hilt, the center for the History of International Law at Tilburg University. In July 2016 the center launched a new version of its online bibliography, a PDF with nearly 400 pages. I had not expected to find just one publication referring directly to the Schelde, Alain Wijffels, ‘Flanders and the Scheldt Question. A Mirror of the Law of International Relations and its Actors’, Sartoniana 15 (2002) 213-280. It might look like a classic example of having a famous case almost at your doorstep – the distance from Tilburg to the Schelde is some fifty kilometers – and somehow almost overlooking it… Randall Lesaffer provides very useful basic reading lists for the history of international law, including historiography and methods. The links section of i-Hilt is also worth checking. I checked the Digitale Bibliografie voor de Nederlandse Geschiedenis, and alas I could find just thirty publications about the Schelde, and even less for studies dealing with the conflicts. One of the articles not to be missed is by Frits Doeleman, ‘Zeggenschap op de Honte’, Tijdschrift voor Rechtsgeschiedenis 43 (1975) 24-43. Its very title is a warning to look beyond the mere word Schelde! Cardholders of the Dutch Royal Library and users at subscribing institutions can use the bibliographical and iconographical database of the former NCRD, with for the Schelde nearly 70 items, most of them publications, but alas since some ten years not updated. Of course I looked also at the Belgian counterpart of the DBNG, the Bibliographie de l’Histoire de Belgique / Bibliografie van de Geschiedenis van België – BHB-BGB with its trilingual interface and more relevant results than in the DBNG. These bibliographies can be found at the portal European Historical Bibliographies. Returning to the question of this paragraph I think it is safe to conclude that the Peace Palace Library performs a real important service for scholars in presenting this digital collection.

I checked also for the presence of digitized books concerning the Schelde in Delpher, the digital library of the Dutch Royal Library, but I noticed only few of the books now available online thanks to the Peace Palace Library. At Delpher in particular the relevant works published around 1785 are present, and they can be viewed in more ways. The library catalogue of the Zeeuwse Bibliotheek contains only a few books dealing with the Schelde problems, and unfortunately I could not reach the website of this fine library in Middelburg. The Zeeuws Archief has in fact more relevant publications in its holdings. The archival collection concerning pilots on the Schelde is particularly interesting [Rijksloodswezen, 6e District, Monden van de Schelde, (1808) 1835-1950 (1966)].

In Belgium you should look in particular at the websites of the Felixarchief, the municipal archive of Antwerp, the Erfgoedbibliotheek Hendrik Conscience, and the Museum aan de Stroom, situated on a quay of the Schelde. These websites have multilingual interfaces. The Anet meta-catalogue enables you to search with one action in many libraries at Antwerpen, including the university library. The Flemish digital library Flandrica, too, contains some items documenting Flemish history around the Schelde river. The Short-Title Catalogue Vlaanderen (STCV) helps you tracing books printed in Flanders between 1500 and 1800.

After looking at this new digital collection I am aware much more can be said about the Dutch province Zeeland which indeed is a province of islands and sea. Floods took sometimes a great toll on the areas adjacent to the several branches of the Schelde. Whole polders have thus disappeared. Ironically there is a modern dispute about the last polder reclaimed from the Westerschelde, the Hedwigepolder. The history of international law is one of the many possible approaches to the history of a river which both connected and divided the Low Countries. The Schelde connects and divides even today in some respects.

The legal world around American slavery

The advertisement for the slavery digital collection

Early October 2016 came a surprising announcement from a firm known for its licensed digital law collections which most users will visit only through on and off-campus access at university and research libraries, national libraries and law firms which can afford the costly yearly subscription rates. Although I have no intent to create here a platform to champion only the cause of Open Access I have tried to avoid writing about materials hidden beyond pay walls, because such blog posts would have a tantalizing effect on many readers. Kluwer, LexisNexis and WestLaw, to mention a few firms dealing with legal materials in many countries, and for the humanities for example Chadwyck, Gale, Adam Matthew and ProQuest have not yet figured here. However, when HeinOnline announced to create free access to its digital collection Slavery in America and the World: History, Culture & Law I immediately registered. I present here a personal tour of this project, well aware that this are experiences after just a few weeks, not the results of someone immersed into this subject over the years. On my blog slavery has appeared a few times as a secondary subject, but until now only once as the main subject of a post, ‘Remembering slavery’, about the abolition of slavery in Suriname in 1863 and its commemoration in 2013.

Making a tour

HeinOnline certainly has done some efforts to make its new collection as inviting as possible. Paul Finkelman (Albany Law School), the general editor of Slavery in America and the World, gives in the advertisement a concise overview of its main qualities. The core of this digital collection are the statutes and reported law cases concerning slavery in America – both on the state and the federal level – and the Anglophone world. There are more than one thousand pamphlets, many books on slavery and legal commentaries dealing with slavery published in essays and articles which are sometimes very difficult to find. In an introductory essay Finkelman discusses the historiographical background. He places the history of American slavery in the context of slavery worldwide, alas a continuing story in view of human trafficking and labor conditions which amount to slavery, and thus the history of slavery is not confined from around 1450 to the late nineteenth century. The collection contains numerous items from the twentieth century, too. Among libraries contributing to the digital collection Finkelman singles out Buffalo and Erie County Public Library.

The start screen of the slavery collection

Even without registering you can download the quick reference guide and the full introduction. Mentioning this you might smile like I do remembering the familiar instructions to students not to jump immediately to the matter you are searching for, but to make yourself familiar with a book by reading the preface and acknowledgements, scanning the chapters, checking for a bibliography, source references, credits for illustrations, and the presence of an index. It is seducing to jump into the ocean and go straight for your destination, but alas there is no plain sailing when studying the history of slavery. One of the assets in Hein’s digital collection are fifty monographs about slavery published by the University of North Carolina Press. Some of these books deal with the Caribbean and Latin-America, and this surely widens the dimensions of the project. The digital collection does allow you to browse all titles, periodicals and scholarly articles, and there are also a bibliographical section and a list of external links, the things users of other HeinOnline collections will expect as normal features. The meta-data of the titles selected for inclusion have been enriched with tagging about their position on slavery, the topics under discussion, the jurisdiction involved, and the document type.

For finding judicial cases the digital collection builds on Helen Tunnicliff Catterall’s Judicial Cases Concerning American Slavery and the Negro (5 vol., Washington, D.C. 1926-1937; reprint Shannon 1968) supplemented by state and federal cases, in particular from the United Stated Supreme Court. The statutes adduced stem not only from American states and the federal government, but also from former colonies. This sounds wonderful indeed, and I understand the lure of wanting to write as Finkelman does in his introduction that this collection “brings together, for the first time, all known legal materials on slavery in the United States and the English-speaking world”.

A complete collection?

How complete is this collection? There seems to be a paradox between the second half of the title of this digital collection, History, Culture & Law, and the claim to contain all legal materials. In my view questioning the completeness should probe in two directions in particular: First, are materials included for the periods that individual states had not yet entered the Union, and secondly, do statutes and cases indeed represent “all legal materials”? The collection contains slavery statutes from fifteen states, and federal cases from 24 states. The periodicals selected for inclusion are all marked as anti-slavery. You can imagine that in periodicals in favour of slavery sometimes more moderate views appeared. In theory a periodical might even have changed camps. No one can complain about the thoughtful inclusion of the British journal The Jurist and of sets of Congressional materials.

The section with scholarly articles and other documents has nine rubrics. For articles the year 1900 has been set as a useful divider. There are sections with book reviews, British slavery, cases and “foreign” – meaning non-British – cases. Judges, laws and statutes appear in separate sections, and there is even a section on “Historical Ancient Slavery” with a nice selection of articles in law journals up to a contribution by Paul J. Du Plessis from 2014. Before you start rejoicing too much it is time to read the notice these articles are only available online to subscribers or subscribing institutions. As a bibliographical asset this section is certainly most valuable. This brings me immediately to the section marked “Bibliography”. The first thing to notice here it is rather short. Relatively much space is given to reports, individual speeches and even cases. Some monographs appear twice for no good reason. You can view the titles only in two ways, alphabetically ordered by title or author.

The digital collection scores better with the fifty monographs published by UNC Press between 1985 and 2015. The list is not long enough to merit reworking in a database. Topics have been added to titles, something to consider at the very least for an update of the bibliographical section. With just ten links the choice of external websites is ridiculously small, even though I was pleased to see a link to a French website, Le droit des traites et des esclavages (CNRS). If this has been included to ensure this HeinOnline collection has a truly global coverage it does not come from its own strengths. I can understand to some extent the fear to point to digital collections from competitors in their branch, but this does not show much confidence. It is surely the global aspect that suffers most here.

However, not everything is as appalling as it might seem in these two last paragraphs. HeinOnline merits consideration on its own basic quality, presenting legal cases in a quick and convenient way. The search possibilities to find cases according to different characteristics are great, and you can download, print, enlarge and use other view facilities at will. The feature to link directly to other cases highlighted in the text of a case is most useful. The stream of relevant cases adduced here and readily available is most impressive and deserves praise.

I enjoyed very much looking at the section with digitized printed materials from the nineteenth to the twentieth century. You do not only find for example a nice choice of pamphlets and even volumes with collections of pamphlets, with special mention for the sixteen volumes of the series Slavery, Race and the American Legal System, 1700-1872: The Pamphlet Literature, edited by Paul Finkelman (Clark, NJ, 2007), and a number of useful bibliographies. The presence of novels, biographies, poems and songs does add a substantial cultural element to the collection. Only some forty items date from before 1800. A quarter of all digitized publications in the set stem from the period 1826-1850, and more than 400 items cover the period 1851-1875. The literature can be browsed in several ways (author, title, date and subject), and you can select literature using four filters (position, document type, jurisdiction, topic) with for each filter an apt drop down list of possible choices.

Alas more has to be said. I can accept as a matter of fact the citation forms used for the federal statutes, but would it not have been sensible to supply more information about the various state statutes used for this project? I am aware of The Indigo Book, the liber pauperum version of the Blue Book, with all niceties to refer correctly to all kind of legal materials. The legal problem of slavery in the United States during the nineteenth century was to a great extent a matter of apparent and real differences between state and federal jurisdiction and legislation, and – almost more importantly – their perception. In the bibliography of this digital collection I missed Eric Foner’s The Fiery Trial. Abraham Lincoln and American Slavery (New York 2010). Strangely Lincoln’s speeches are missing, too. Foner is not content with just following Lincoln’s political actions, but does at many point look at legal matters in particular states and on the national level. Foner looks at some of Lincoln’s 34 cases involving black people among the more than 5,000 cases Lincoln handled as a lawyer. I had expected to find in Hein’s open access digital collection the full texts of all cases, but instead you will find only references to them in the digitized literature and the summaries or at its best excerpts given by Catterall. No doubt this information will lead you elsewhere to the complete text of the relevant cases, but the claim “all legal materials” is diminished.

Logo of The Revised Dred Scott Collection

For one of the most influential cases in American legal history it is not only possible but necessary to look at the period between the original case before a circuit court and the epochal case before the Supreme Court ten years later. The new free digital collection does of course contain the Dred Scott case [Dred Scott, Plaintiff in Error, v. John F. A. Sandford 60 U.S. 393 (1856)]. I could not help noticing in the HeinOnline version under discussion how not every reference to cases adduced in this long verdict and the opinions of the judges has been highlighted and linked. In fact I would expect also highlights for and links to for the statutes invoked or mentioned in passing. The Dred Scott case started in 1846, and there is historical documentation for the subsequent phases of the case at the state level. Washington University, St. Louis, MO, has not only created The Revised Dred Scott Case Collection, but also a digital collection for St. Louis Circuit Court Records where you can find the original Dred Scott case and documents concerning seven (!) subsequent cases at St. Louis. In its section for judicial cases HeinOnline does not give a single federal case from Missouri, nor is any link to external resources given, not even at the Library of Congress. In this case Wikipedia does a better job.

Let my plea about this digital collection not only rest on the presence or absence of cases! Among the fugitive slave laws the Fugitive Slave Act of September 18, 1850, often referred to as the Compromise of 1850, stands out. It belongs in every collection dealing with this subject. To my utter disbelief I could not trace here the text of this landmark piece of legislation. In my search for an online version the exact text I seldom saw a correct and complete reference to the original act of Congress, let alone a legal reference. Here again Wikipedia got it right, although it does not include the text of 9 Stat. 462 [Chapter 60, 31. Congress, Session 1]. The Fugitive Slave Act of 1793 [1 Stat. 302] and even the Northwest Ordinance of 1787 are present; the latter is the very first federal statute of Slavery in America. It might be useful to add a concordance of popular names of laws and their official names.

Cases and statutes in context

I will not completely dismiss the efforts of HeinOnline for this new collection, but I can hardly avoid making some negative statements about it. It seems this firm thought it would suffice to create a historical version of their normal case finding system with the Catterall set as its heart, enhance it with a generous amount of relevant statutes, one thousand interesting (legal) pamphlets, and a thoughtful choice of recent scholarly literature, and launch it perhaps in conjunction with the long-awaited opening of the Smithsonian’s National Museum of African-American History and Culture in Washington, D.C.

Is it only a guess that HeinOnline has been blinded by its own success in making systems adapted to the needs of law schools? This new collection seems to me ideal as a tool on which law students in their first year can show some of their talents in finding legal information. However, even from a point of the development of American legal doctrine Slavery in America does not offer what it promises to do. With sometimes only incomplete cases it is impossible to determine what has been filtered out for any reason. If you believe legal history cannot exist properly without sufficient attention to legal institutions and social history, this digital collection is just a tool to be supplemented by other collections now widely available online, too, and a lot of them in open access.

As for the position of other countries you had better start inside the United States of America, by looking at the Territories, the states in North America that joined the United States between 1776 and 1861 but somehow are here undocumented, i.e. without cases and statutes. You might argue the materials from these territories are not United States legal materials, but they constitute certainly legal materials fit for inclusion. It is startling to see a collection marred by such barriers and omissions. Far more important is the fact that the subject of the place of slavery in law and society surfaced every time a new state wanted to enter the Union. Changes in political geography such as the Mason-Dixie line had immediate consequences regarding slavery, slaves and slave-owners, and former slaves. The thing that you would expect most here are the debates in Congress and in the various state senates concerning aspects of slavery. Of course I am aware this would result in a much larger digital collection, but I think this is necessary for a better understanding of statutes and cases. Hopefully such considerations will be taken into account for the massive Case Law Access Project at Harvard University.

To sum up my first impressions, HeinOnline has created an important but flawed digital collection. The 1,100 digitized publications form a great asset as do the digitized scholarly articles and periodicals. The digitized version of the Catterall set is most helpful. There are some distinct problems with the cases included and the internal references. In my view the choice of state statutes is too limited. The historical bibliography has some merits, but the list with external links is a howler. I pointed also to some real problems in creating a digital collection on this wide-ranging subject. Alas as for now you cannot find here “all legal materials” in open access. However, it does take courage and experience to bring such materials together in an easy navigable way. No doubt some of my criticisms can be easily repaired. Others should be addressed in a thorough explanation of the choices made in creating this digital collection. This will not only help law students and lawyers to benefit from this collection. On purpose I have not looked while writing this post at other reviews of Slavery in America and the World, but in fact I could only find a short announcement at the blog of the Canadian Osgoode Hall Law School Library.

Legal materials in open access

It would be wrong to create a picture of American law online as a treasure completely beyond the reach of normal people, but it certainly takes efforts to find legal materials for the United States online in open access. Creating here a full guide would take up too much space, but I can offer a kind of nutshell guide. To assess the role of commercial databases for American law you might want to look at Legal Databases: A Comparative Analysis (Center for Research Libraries). In particular the Hathi Trust Digital Library contains substantial materials in open access. Harvard Law School has a fine guide to legal materials in open access. The Legal Information Institute (Cornell University Law School) has an overview of state statutes in open access. The Jerome Hall Law Library (Indiana University) has created an online research guide for state legislative history. Sources in open access do not primarily bring you historical materials. Among the exceptions is The Supreme Court Database (Washington University), but this is primarily an indispensable search tool for decisions of the Supreme Court. The website of the American Society for Legal History has a fine links section guiding you to many aspects of US legal history. Anyway it is wise to start your online searches with the Law Library of the Library of Congress. Its web guide for U.S. States and territories is very helpful. Congress.gov is extending its coverage in the near future. Among the digital collections of the LoC you will find much that has relevance for the history of slavery, both in the section on government, law and politics, and in the African-American section. The American Memory portal of the LoC is sometimes more helpful in finding these collections.

By the way, HeinOnline is not the first firm in its branch to place some of its products in open access. LLMC Digital has created free access to The Documentary History of the Supreme Court of the United States, 1789-1800, Maeva Marcus et alii (eds.) (8 vol., New York, 1985-2004).

Slavery is a vast subject. On my legal history portal I hesitate to dedicate a complete page to it, but I do give there at least some of the websites which should help your research. The Yale Slavery and Abolition Portal is a good starting point, as are the digital collection of the institute behind it, the Gilder Lehrman Center for the Study of Slavery, Resistance & Abolition. You will not want to miss The Bibliography of Slavery and World Slaving, University of Virginia, Charlottesville, VA. I urge you to look for relevant online exhibitions in the superb database for online exhibits created by the Smithsonian Institution. Not yet included is the impressive virtual exhibit created by the Inner Temple Library in London, British Black History and the Law, which shows the long impact of slavery and discrimination. Among the best known digital collections concerning American slavery is the Samuel J. May Anti-Slavery Collection, Cornell University Library, but there is certainly more. If you want to check the quality of Paul Finkelman’s work in creating a set with a selection of pamphlets concerning slavery and abolition in facsimile you might want to look at some of the digitized pamphlet collections in the United States. For me it is a good thing to see that it matters indeed to look at pamphlets, too, when doing legal history. I feel happy to bring together commented links to relevant digitized pamphlet collections. If I have failed to detect things not clearly immediately transparent in Slavery in America and the World I welcome any constructive guidance to do more justice to it!

A postscript

For those who like myself would like to find the quickest way to US statutes in open access I add a link to the reinforced version of the Library of Congress’ Statutes at Large. The Fugitive Slave Act of 1850 can be found in the materials for the 31. Congress, but unfortunately the direct link to the relevant chapter (Ch. 60) was broken when I checked it. I am happy to report it has been quickly repaired. By the way, only after publishing this post I noticed it was Open Access Week

In the November 2016 newsletter about the collection HeinOnline points to additions and offers some guidance, in particular for the Slavery Quick Finder tool. In an image with an example the topic happens to be cases and trials based on one of the Fugitive Slave Acts. I tried to find one of these acts with this tool, but alas to no avail. The section with major statutes contains the statute of June 28, 1864 [13 Stat. 200; Chapter 166, 38 Congress, Session 1] which repeals the Fugitive Slave Acts of 1793 and 1850, with the year 1850 explicitly mentioned in the title, yet the 1850 document is still absent in this section. The links selection contains now sixteen links including some of the websites I mentioned here. In January 2017 the Fugitive Slave Act of 1850 was finally included at Slavery Online.

For the common good: International legal history and collective action

Every month there is a growing chance of encountering some kind of commemoration of historical events and figures. Sometimes these festivities are indeed an opportunity to look at them with fresh eyes, but often these occasions can seem too much of a good thing. In recent years there has been a proliferation of international days, some of them just a funny parody, for example on March 31 the sixth Hug A Medievalist Day! On April 14, 2016 it is the International Legal History Day. At least one university, Harvard, organizes today a seminar about the practices and challenges of doing international legal history. It seems Harvard Law School wants to launch this day as a new tradition.

In this post I will look at two initiatives dealing with a concept which touches many countries and regions all over the world. Commons are shared stretches of land used and owned by several people. Commons can be defined as a type of collective action. An international research project is at the heart of this post, and I will also look at a digital library which helps you to trace relevant literature about commons. One of the features of this post will be the combination of global phenomena with local examples transcending the boundaries of nations and states.

Sharing lands, goods and much more

Header Institutions for Collective Action

When I first saw the portal of Institutions for Collective Action (ICA) I was genuinely surprised by the all-encompassing umbrella used to bring a number of institutions under one denominator. Commons are perhaps the institution most quickly associated with collective action, and they will certainly fill much space here, but there is more. Merely contemplating what kind of actions you will define as collective actions is in my view already a fruitful exercise. Five types of collective actions figure at the portal: commons, guilds, waterboards, beguinages and co-operatives. The ICA portal cites on its homepage Bertrand Russell’s dictum ‘The only thing that will redeem mankind is cooperation’. Currently there is a set of case studies from eight countries for the five types, with 23 examples for commons, four for guilds, eight for waterboards and only two for co-operatives, and typically for beguinages six examples from the Netherlands and Belgium. The eight countries are apart from Belgium and the Netherlands the United Kingdom, Greece, Portugal, Rumania, Spain and Uganda. The cases from Rumania concern commons, the example for Uganda is a co-operative project for micro-finance. In fact there are more countries: in the section for guilds France, Italy, Germany and China are added.

One of the strengths of this portal is the comprehensive coverage of many aspects of research into institutions for collective actions, and thus you are really looking at a veritable portal. You can consult not only the case studies and general overviews, but also online bibliographies, glossaries, datasets and sources, and you might be interested in the announcements of scholarly events. The section with debates highlights a number of general and specific questions about the types of collective actions figuring on the portal. These questions will certainly help you to refine your own analysis. I found in particular the discussion of the various forms of institutions for water management illuminating. The perspective on Dutch institutions becomes sharper thanks to the comparison with Spanish institutions. I really learned here something also about the Dutch variety of these institutions and the need to look at them more closely. The page with links to related projects shows the context of this project in which scholars at Utrecht have substantial roles. An offspring of the ICA portal are several projects which work with crowdsourcing. Inviting the public to participate in research projects by transcribing or indexing sources is in itself a kind of collective action. The heading Citizen Science is fitting indeed.

Website Vele Handen and the Ja, ik wil project

At least one of them should attract your curiosity because of its legal nature, the project Ja, ik wil (“Yes, I do”) for the transcription of pre-marriage acts between 1578 and 1811 from the municipal archive in Amsterdam, a resource with much more information about people going to be married than you will find elsewhere. The transcribing portal Vele Handen (“Many Hands”) contains more information about the project (in Dutch). In its turn this project serves a much larger research project of the ICA team to compare marriage patterns.

Banner Digital Library of the Commons

The main organization dealing with the history and current situation of common is the International Association for the Study of the Commons (IASC). At the website of IASC, too, you can find an overview of online resources. Some years ago I already encountered the Digital Library for the Commons, a digital collection at Indiana University, but so far I had not started to place this initiative in a wider context. The digitized literature in this library deals with commons on literally every continent, even Antarctica, but not the Arctic region. The simple search mode, the advanced search mode and the filters for browsing are most helpful. In my view it is stimulating to look here, even if you do not quite find what you are searching for.

Although it is easy to expand the fairly summarized information presented here it might work better to keep this contribution shorter than usual. Environmental history is just an example that can be connected with studying commons. At the blog Environment, Law and History you can pursue this direction. Global legal history and comparative legal history do not appear here for the first time. The theme of international legal history deserves attention, and not just on one particular day every year, but the idea is surely valuable. When I started this blog I promised my readers to look for themes and subjects from around the world. There are enough countries, regions and landscapes about which I can write here. Perhaps it is more important to discuss them here not for the sake of completeness, but preferably and more interestingly in connection with the kind of problems and questions which belong to the world of legal history.

Challenges for doing global legal history

Header History and the Law

It is one thing to praise the virtues of global legal history, but the roads to start doing global legal history are often challenging. Are there any roads? How much pioneer efforts are needed to make this approach sensible and fruitful, or should we allow for risks and pitfalls? In this post I will look at a project which is in fact more a consortium of projects dealing with themes in several periods and locations in Asia. On my blog I have looked sometimes at individual countries, in particular Japan and Nepal. I mentioned resources concerning India’s legal history in a post about the projects of the Center for Research Libraries, but these posts did not convey an overall view of research concerning legal history in Asia. For contemporary law in Asia you might want to check my 2014 post about the World Legal Information Institute. In other words, it can do no harm to focus here on Asia.

At the center of this post is History and the Law: Exchanges of Economic, Legal and Political Ideas, a joint project between Cambridge University and Harvard University. There are two websites for this project, and at some turns you are guided suddenly to the Harvard website or vice versa. The Center for History and Economics of both universities is home to this large-scale project.

Legal histories at multiple levels

The subtitle of History and the Law offers a clue to the approach favored by the teams of Harvard and Cambridge. “Exchange of Economic, Legal and Political Ideas” sets the scene for bringing together concepts and ideas from different spheres. A second thing to note at the outset is the research network of the project which is cast much wider than just scholars working at these two famous universities. A third thing to note at the outset is perhaps that the latest scholarly event within the network happened in 2014. The last event was probably the two-day workshop on Petitions and Political Cultures in South Asia (Cambridge, Magdalen College, June 4-5, 2014). However, even in its dormant state it is well worth looking at some key elements. I would have expected here to find an overview of published results, reports on workshops and possibly a number of selected bibliographies. Nevertheless it seems to me most interesting to look beyond these wishes.

The section Reading Legal Documents contains just one text. The introduction of Fei-Hsien Wang’s paper gives a nice and compact example of the working of copyright in early twentieth-century China when each publisher had to get for each publication a separate act from the local authorities acknowledging its copyright. The history of copyright law is also part of another project at Cambridge. The section with interviews contains five interviews. Many scholars will immediately recognize Mitra Sharafi (School of Law, University of Wisconsin), creator of the marvellous blog South Asian Legal History Resources. Her blog is simply the clearing house and portal for anyone doing serious research in this field, in particular for India’s legal history. Sharafi’s selection of digital and digitized resources can stand any comparison.

The main projects which seemed to me at first to be conceived within the framework of History and the Law as daughter projects with separate websites are Sites of Asian Interaction: Networks, Ideas, Archives and Cordial Exchanges: Britain and France in the World since 1700. On closer inspection they should be seen as sister projects, even when in particular the Asia project does deal also with legal history. Both are certainly worth looking at on their own. Where I offer criticism here below these do not touch upon these two projects.

The section with digital resources at History and the Law is the first element I want to discuss here briefly. There is a general section with only six websites. Alas the link to the fine guide of Harvard Law School to online legal materials in open access is currently broken, no doubt a victim of the current redesigning project of its website. Maintaining more than 130 online research guides is a feat in itself. The bibliographical section brings you just four web links, all outside History and the Law, but the sheer weight of Mitra Sharafi’s blog does something indeed to redress the balance. At the website of the University of British Columbia the bibliography on Law and the South Asian Diaspora created by Renisa Mawani has simply vanished. Before going to the main section let’s note the website at Cambridge of the Center for History and Economics with a digital version of the consolidated index of admissions to the Inns of Court from ‘Indian’ and other non-British-born entrants between 1859 and 1887. The very label “CHE Projects” where you find this creates an expectation for more.

Many resources?

The major part of the corner with digital resources at History and the Law gives us five sections dealing with digital archives and collections, organized in five geographical sections (Europe, USA, East Asia, South Asia and Africa). At this point it is perhaps better to describe this website more as uncompleted than as dormant. Just five links in the European section, with three of them for the United Kingdom, is close to nothing. The link to the project for the Privy Councils Papers Online is not correct. You will want to visit the website at Exeter, and you might like to visit the Exeter Imperial and Global Forum. The “US section” luckily does not only mention projects in the United States, but just mentioning a single Canadian blog is simply poor. Law and Revolution is the research blog of Malick Ghachem (School of Law, University of Maine) where the revolutionary period on Haiti around 1800 is the starting point for discussing the Atlantic revolutionary tradition. With eight links the South Asia section is a bit better, even if it focuses solely on India. Pakistan, Bangladesh, Sri Lanka and Goa are absent. With a few letters removed from the end of its URL the link to the digital library of the Gokhale Institute of Politics and Economics does work properly. The section on East Asia does refer to project concerning China, Taiwan, Japan and Mongolia. Just seven links is very meagre, but most of them are not easily found at all. Let the record show the section for Africa contains a single item, the Slavery and Manumission Manuscripts of Timbuctu (Center for Research Libraries, Chicago). Finally the links section contains seven links, among them three blogs, and I was truly surprised to find here even my own blog.

Should one really wonder about this state of affairs? In the case of Mali you might have a look at a post published here in 2012. A few years ago the web page with links for British legal history of the Law Faculty at Cambridge simply disappeared, and my friendly question to bring it back to life went unanswered twice. At my own legal history portal Rechtshistorie I have saved a version from 2012 from the Internet Archive. Of course I searched for it again today at both the websites of Cambridge’s law faculty and the Squire Law Library, but in vain. I can imagine a sad explanation about the missing overview and the poor quality of the lists presented here, such as illness of a webmaster, but I had rather not speculate here anymore. The project at Cambridge and Harvard ran mainly between 2004 and 2009, and the growth of available digital resources is certainly thus strong that it is hard to imagine the number of projects simply not existing five or ten years ago. The disappearance of websites during the same period is a necessary reminder that not all things online will reach eternity.

The Harvard website of History and the Law has a good page telling about the project’s objective to look at its themes in the sequel of the vogue for the transnational turn and the 2008 banking crisis. I had not yet seen the virtual exhibition Bubbles, Panics & Crashes. A Century of Financial Crises, 1830s-1930s of the Baker Library at Harvard Business School, a product of the Cambridge-Harvard project Exchanges of Political and Economic Ideas since 1760. The Baker Library has also created a digital collection showing some of the riches of the South Sea Bubble collection, and a project site aiming explicitly at comparing the financial upheavals in 1720 with current events, Historical Returns. Linking Ideas Across Time.

Online or in print

How can we explain most convincingly the somewhat sad state of affairs of the websites of this joint project? I would like to use Occam’s razor to provide here a clear explanation. I think it all boils down to a complicated joint program with too much actors and factors influencing its success. In an age where success is more and more measured by its very online presence this project might have scored very high in terms of the international network supporting the project, the range of themes, regions, and periods, and probably of publications in peer-reviewed journals, but this does not make it immediately visible online. If it has been a success you would by now expect to see a full-blown online presence with up-to-date information instead of two rather empty virtual showcases which impair the reputation of both centers. In a way this might offer some consolation to all scholars keen on organizing and steering similar projects, and in particular those who have seen the failure of such projects. History and the Law somehow stands in between two worlds where the printed world and virtual world today are merging together. Even if you are successful it depends on so many factors to be seen as successful.

In my experience you will need a team to create overviews of digital resources which combine a sensible approach, consistent quality, coverage and longevity. The number of daily visitors for Rechtshistorie tells me something about the need for such overviews. The section for Asia on my page for digital libraries covers just one aspect of digital resources, even when I sometimes deliberately put in digitized archival records to make up for any real or supposed lacunae.

Logo Sejarah Nusantara

A number of countries in Asia is still absent on this page. From a Dutch point of view the very small presence of Indonesia is just inexplicable. The National Library of Indonesia in Jakarta has at the very least digitized a number of rare books which should have captured my attention. Last year the digital collection Sejarah Nusantara of the Arsip Nasional Republik Indonesia was launched with documents and archival records created between 1600 and 1800. Following the blog of the South Asian Libraries Group is only one of the remedies I propose. A team would long ago have made at least some provisions. Working to create and maintain my website and this blog contributes in many ways to my views on legal history. Facing mistakes, omissions and gaps is part and parcel of that experience.

For some countries and subjects it can be difficult to track down relevant online resources. Try searching with The Inevitable Search Engine for websites containing links to the major digital libraries for South Asia and East Asia… The best I can do is to promise to keep up the good work, and to invite you most cordially and sincerely to bring relevant resources to my attention. One of the qualities I strive for at my website is accompanying each link with a concise description. In this way I offer at least more than just a list. A number of links often appears here before I put them at the right page of my portal site. At the end of this post it seems to me worth repeating: If you want to make an international project successful today in itself and in the eyes of the general public, you have to pay careful attention to its virtual presence. Choosing a webmaster or – preferably – creating a web team should not be an afterthought but an integral and decisive part of your plans and actions.

A postscript

The link to the guide for free legal research resources of Harvard law School Library does work again. In particular the section on foreign and international law is worth checking.

The edges of medieval law

Cover "The edge of the world" (Penguin edition, 2015)Every now and then a book comes along that grabs your attention. The Dutch translation of Michael Pye’s The Edge of the World: How The North Sea Made Us Who We Are (2014) with its beautiful cover lured me into buying in the end the Penguin edition (2015) and starting to explore its contents. After a number of recent books about the role in European history of the Mediterranean, in particular the one by David Abulafia, a kind of antidote extolling the importance of the North Sea and the regions around it in medieval times is surely welcome. Michael Pye belongs to the line of British authors outside academia who year after year present us with vigorously written and entertaining history books. Awareness of the many corners of history and the importance of detail studies does not diminish the secret longing for history in the grand manner. Does Michael Pye, trained at Oxford in modern history, succeed in creating a convincing history of this part of Europe? In this post I will look in particular in the way Pye deals with medieval law. Law and justice get a large space in his study, sufficient justification to deal with it here.

Twelve chapters and an introduction

Pye organized his book in twelve chapters with some 320 pages, embellished by two maps and twelve full colour images, and fortified by nearly fifty pages with end notes giving substantial references to scholarly literature. It needs perhaps underlining these facts before starting to analyze its contents. Pye aimed to discuss matters scholars regularly research, he uses their research and thus he deserves attention both by the general public and at a scholarly level. In a captivating introduction Pye skilfully sets the scene for his book and points to some of the problems daunting the historiography of the countries around the North Sea. He is quite right to refer to the bias caused in the nineteenth and twentieth centuries by nationalist views, and to warn for their partial survival, in particular our respect for Bede the Venerable and his book on the history of the English people. Bede’s work cannot been read as a historical work of our times. There are clear limits to his knowledge and method, and powers guiding his vision of Christianity and its coming to British isles. The quality of this introduction is most promising for the following chapters.

The first chapter has a provocative title, ‘The invention of money’. Were the Frisians the first people to use money in the lands north of the Rhine left empty by the Romans? Pye argues this region became already in the eight century a trading zone where Franks, Frisians and Saxons traded commodities with each other, even luxury goods. I could not detect a clear chronology in this chapter. Putting the town of Tiel between Utrecht and Arnhem is a bit awkward when Tiel is some forty kilometers to the south-east, and Arnhem seventy kilometers to the east of Utrecht. Dorestad makes more sense as a point of reference. The second chapter about the way this early medieval society was to some extent definitely a world of the book, seems to me much more convincing.

The two following chapters are perhaps the best part of Pye’s book. He succeeds in creating a view of the role of the Vikings in Western Europe and Scandinavia which goes way beyond the clichés of savage men from the North destroying the peace brought by Charlemagne to his new empire. There was more to the Vikings than only violence and pillaging. They were traders who enlarged the range of early medieval trade. They traded not only in Russia, but came even to Byzantium. In the end they, too, became settlers who founded even new port towns. A number of new books, for example those written by Anders Winroth, can give you a fuller portrait of the Vikings and their impact, but Pye gives in fifty pages a fresh picture with much relevant material and discussions of important topics.

Laws are everywhere

Let us not plod here through every chapter in chronological order. One of the reasons you might want to read Pye’s book carefully is his attention to medieval law and legal matters. The space he creates for showing and discussing law and justice is a relief after reading history books which relegate law to a tiny corner or dismiss it in a few paragraphs as a dull matter.

Pye’s sixth chapter, ‘Writing the law’, gives in nearly thirty pages his first main discussion of medieval law. He describes the way the early medieval ordeal was succeeded by a new approach to facts. Pye uses Merovingian formulae and carefully notes the views of learned men in the ninth century who already opposed the ordeal, but his indication of time is sloppy. The rise of lawyers as a profession leads him to speculate about the rise of professions in general. Surely this a major development in medieval society which needs a through investigation and explanation. One of my troubles with this chapter is the zigzagging between centuries and subjects, including the use of runes, the creation of letters of exchange and the forgery of charters. For me there is a fine line between telling stories which bring something fundamental, and a way of writing where just one example after another serves to make a point. In the end you read a loose narrative chain posing as a convincing argument, instead of a patient analysis of a number of cases for a single matter, question or hypothesis. There is a distinct tendency in this book to impress with short stories and vignettes, leaving me in the end somewhat breathless.

On the other hand I cannot leave this chapter judged only on some rather external characteristics. Is the waning of the use of the ordeal the only thing that really mattered? Why does Pye look closely at the use of runes on artefacts, but not at Scandinavian laws? Why does he completely miss the renewal of legal procedure and the increasing role of counts and kings, in particular in Flanders, Normandy and England? Pye mentions two articles by Raoul Van Caenegem, but he seems unaware of this scholar’s monographs and editions. He tends to cite very often new literature and to look only seldom at older studies. Scholarly literature in German or Dutch is almost absent, which is remarkable for a book written for a substantial part in Amsterdam with the aid of the staff at the university library of the Universiteit van Amsterdam. He simply misses the fundamental recent articles by Winfried Trusen and Lotte Kéry about the growth and background of the inquisitorial method, nor does he mention any book about medieval judges. Pye writes for example about the importance of judging intention, citing an article from 1964 by John W. Baldwin, but apparently not using his book about the social views of Peter the Chanter.

Pye’s ninth chapter, ‘Dealers rule’, is perhaps the best part. His presentation and discussions of merchants and trade exemplified in the German Hansa is vigorous. The Hansa wanted to be established a rule of its own built on sheer power, trying to keep outside the normal power relations and legal frameworks by concentrating on the sea. Pye has a keen eye for the particular position of merchants in late medieval society. He rightfully shows how the Hansa in a way continued the practices of earlier merchants. This chapter owes it force certainly also to the quick association one can make nowadays with the role of international trade and multinational firms.

The tenth chapter, ‘Love and capital’, very much centers also around law and legal customs. Pye discusses here the role of matrimonial and hereditary law helping women to secure a position within marriage and outside it, for example living as beguines in one of the great Flemish beguinages, or trading in the absence of their husband. Incidentally, when telling the story of a woman living as a beguine at Bruges who was abducted in 1345 by her family, Pye does use an article in Dutch, helped by Dutch scholars, but only in this case. Only two pages after he started telling this story he gives the year when this happened. If it is really important particular developments in Northern Europe were so pivotal in European and world history, I would prefer to know more exactly when and where something happened. Just two maps to figure out the position of a particular town or location mentioned in this book is simply not enough. The British Isles, the Low Countries, Scandinavia and the Baltic need separate maps. It weakens an interesting chapter. His case for the growing independence of medieval women, too, would have deserved more careful research. Bringing in medieval views of sexuality seems to mask the somewhat one-sided documentation of this chapter. It is one thing to bring social and economic history together with legal history, but something else to create a convincing chapter which does not consist only of colourful stories and brilliant side remarks. Dutch readers will remember the book by Matthijs Deen about the Frisian isles and the Wadden Sea [De Wadden. Een geschiedenis (Amsterdam, 2013)], a book with both space for good stories and calm analysis.

You should not think I did not like reading this book. It is a splendid read, and some of Pye’s ideas and views are really worth close consideration. The short eleventh chapter offers a captivating sketch of the impact of the plagues, starting with the Black Death in 1348, and the way they serves as a kind of ultimate terror calling for stricter control of social life by laws and regulations. Pye succeeds also in making you aware of medieval views and the changing role of rational thought in them, but here, too, he acts sometimes as if he was the first to discuss this matter. By chance I received this week a select bibliography of current scholarship about the impact of the Black Death, which makes me more cautious about generalizing views. Alas Pye selects his reading list very arbitrarily.

The Book of Everything

In the two last chapters Pye brings his story to his own period, the Early Modern history of Europe. Medieval developments paved the way for the world hegemony of the Dutch empire in the seventeenth century. It was not just a case of the Dutch winning with much luck their struggle for independence against the mighty Spanish forces, but having at their disposal all the skills, knowledge and connections needed to establish a sea-born empire thanks to the migration of merchants from Flanders who head to leave Antwerp. Seemingly novel ways of finance were not so new. I could not help grinning reading the last chapter with on the back of my mind the books by Russell Shorto about Amsterdam and New York. Trade, cultural exchange and fierce convictions to create by all means space for unhampered trade and commerce were surely important for the success of the early Dutch Republic.

The Edge of the World promises to give us a completely new history. One cannot fault an author for his ambition, but Pye has made things difficult for himself. Even Johan Huizinga did not try to tell in The Waning of the Middle Ages the complete story of the fourteenth and fifteenth century in France and the Low Countries, but restricted himself on purpose to medieval literature. Huizinga had published a scholarly edition of legal sources from Haarlem [Rechtsbronnen der Stad Haarlem (‘s-Gravenhage, 1911)]. However, he did not use legal materials and accounts as primary sources in his 1919 book, enough for one critic to remark privately it was only a novel. Pye does refer in his notes to a number of printed editions, but he seldom uses archival records or manuscripts. I am totally convinced a historical novel can sometimes help you to understand a period much better. The Dutch author Hella Haasse succeeded in her 1949 novel Het woud der verwachting [“In a dark wood wandering” (Chicago, 1989)] in evoking France in the late fourteenth century, and at some turns she even surpassed Huizinga’s insights and evocative style.

Too often Pye supposes a particular story can stand for a number of corroborating sources. It makes him somewhat careless and cavalier with his source materials. It is one thing to turn the lights on the many colours of medieval history and society, but the very glitter of little stories too good to leave out has taken over here from critical examination. A round of killing your darlings would have helped very much. Geography and maritime history really suffer. Pye sells too many alluring stories as if only they provide us with the causes of changes and insight into forces behind continuities. His enthusiasm is admirable, but it does also mar this book.

Only on finishing my own review I have looked at some of the reviews of Pye’s book in the Anglo-American World and in Dutch media. The opinions and reviews show a wide spectrum from admiration for a writer choosing narrative above analysis and his own way to deal with a vast subject, to outright dismissal – Adam Nicolson in The Spectator – because at too many turns Pye got his facts wrong, something journalists and historians should truly worry about. Such facts have blunt or sharp edges which can hit equally painful. On the other hand scholars should rightfully and sincerely accept the challenge of doing a better job themselves. We need imagination and vision, keen perception of perspectives, skills to squeeze out the meaning of written sources and artefacts, unflagging attention to get things right, respect for truth, a willingness to question and learn, and the courage to combine fine analyses with good writing. Deep thinking and rethinking will not make the history of Northern Europe grey. It will help to show the many hues of blue and green on the waves sailed by all kinds of medieval people.