Tag Archives: United States of America

Looking at Cuba’s legal history

With the death of Fidel Castro (1926-2016) an era of revolutionary turmoil ends and a period preluding to a transition seems to begin for Cuba. All over the world the events that made Castro a legendary figure, both idolized and hated, will be brought back into view by the media. In this post I would like to look succinctly at some elements of Cuba’s legal history. My overview is coloured by the sometimes random presence of digital collections, but nevertheless it seems useful to bring them together. As a matter of fact I did not search these collections only in the wake of today’s headlines. You can find my selection of relevant digital libraries for both North and South America on my web page with digital libraries which deal with or concern exclusively law and justice. Lately I discussed here Lara Putnam’s article about the dangers of relying too much on digital resources. I hoped to have steered away of some of the pitfalls she indicates, but there is here ample attention for digital resources.

Law and justice in Cuba

Header dLOC

When looking at Cuba it is perhaps most fitting to look at this island first of all from a Caribbean perspective. The Digital Library of the Caribbean (dLOC) is a portal created by an international consortium of research libraries. One country gets special attention at dLOC, Haiti. The section for law at dLOC contains more legal materials about and from Cuba than for any other country, some 6,000 items. A search for Cuba as a subject in the DLOC yields nearly four thousand items. You can approach dLOC in three languages. dLOC contains for example the Diario de sesiones del Congreso de la Republica de Cuba from 1902 to 1957. Among the contributing institutions of the dLOC is another digital portal, Manioc, which focuses on former French colonies in the Caribbean. Luckily this portal has an interface in four languages. With only some thirty digitized historical printed books concerning Cuban law and history the harvest here might seem at first insignificant, but the significance is more to be aware of the melting pot of languages in the Caribbean, with not just Spanish, English or Dutch as European influences. A more general search for Cuba at Manioc brings you nearly 2,300 results. dLOC has a special section for nineteenth-century Cuban imprints. The Braga Brothers Collection at dLOC deals with the history of the Cuban sugar industry.

At dLOC the revolutionary period of Cuba comes in particular into view with the digital collection of Mexican and Cuban film posters. There is also a virtual exhibit of these posters.In opposition to them stands the collection of digitized Cuban exile newspapers produced in Florida. The film posters can be supplemented by the well-known Latin America Pamphlet Coillection of Harvard University. For pamphlets the Latin American Pamphlets Digital Collection of Harvard’s Widener Library is a starting point. The Digital Archive of Latin American and Caribbean Ephemera of Princeton University contains some 900 items concerning Cuba.

logo-bdpiCuba figures, too, at the portal of the Biblioteca Digital del Patrimonio Iberoamericano. This portal is the fruit of cooperation between a number of Latin American national libraries, among them the Biblioteca Nacional José Martí at Havana. I mention the portal especially because it offers you access with a trilingual interface. The digital library of the Cuban national library can only be viewed in Spanish. At the portal you will find for Cuba mainly digitized literary works. You will find the database for the national bibliography useful. Let’s not forget to mention the Archivo Nacional de la República de Cuba and the Instituto de Historia de Cuba.

Header Civil Code (1800-1923) - FIU Law

A starting point for looking at Cuba’s legal history might be the digital collection Civil Codes (1800-1923) in the eCollections of Florida International University Law Library in Miami. You can find here the Cuban Código Civil of 1889 and a second edition from 1919. Interestingly this digital collection contains also nineteenth-century codes of civil law from Marocco, Spain, Portugal, Japan and the Netherlands, the last in a French translation [Code civil néerlandais, P.H. Haanebrink (trad.) (Brussels 1921)]. The FIU Law Library has also created a digital collection for Cuban law before 1961, and in the Mario Diaz Cruz Collection you will find materials collected by a prominent Cuban lawyer. Comparisons between the law in sixteen Caribbean countries are possible thanks to FIU’s digital collection Caribbean Law and Jurisprudence with acts, ordinances and case law reports. The Red des Archivos Diplomáticos Iberoamericanos has a section with the main juridical documents from Cuba between 1904 and 1934 and a link to the Cuban Guia de Tratados, alas as for now without any treaty.

Latin American perspectives

Yet another example of a digital collection which covers Latin America is the Spanish America Collection at the Internet Archive, created by the John Carter Brown University Library, Brown University, Providence, RI. This library has not just digitized some 3,700 works but also very sensibly divided them into smaller collections, among them one for Cuba. Just 35 books might look a meagre result, but among these books are for example Ignacio José Urrutia y Montoya, Teatro histórico, juridico, y politico-militar, de la Isla Fernandína de Cuba, principalmente de su capital La Havana (Havana 1789) and the treatise Instituciones de derecho real de Castilla y de Indias by José Maria Alvarez (2 vol., Habana 1834). The John Carter Brown Library provides also an important visual collection, the Archive of Early American Images. Among the general digital resources for the history of Latin America I would like to mention also the Early Americas Digital Archive, University of Maryland.

The largest quantity of digital collections concerning Cuban history and culture has been created by the Merrick Libraries, University of Miami. The Cuban Heritage Collection with over fiftysub collections covers many subjects. This set of collections is clearly also the core of the Cuban collections at dLOC. It is a matter of choice to look here at them from specific angles or to approach them from a Caribbean perspective at dLOC.

It is possible to pursue many avenues and to spend much time in finding more information. Just two weeks ago Mike Widener (Lillian Goldman Law Library, Yale University) wrote about some recently acquired books about Cuban law. Speaking of blogs you might as well go straight for In Custodia Legis, the blog of the Law Library at the Library of Congress. You will find much of interest in the seventeen contributions touching Cuba. For Latin American constitutions you can choose at will from several portals dealing with constitutions all over the world. At my website I mention most of them, but you might want to have here the direct link to the main portal for Latin America, Constituciones Hispanoamericanas, part of the Biblioteca Virtual Miguel de Cervantes.

Perhaps more closer to the actual situation at Cuba is the Presidio Modelo, a former prison built between 1926 and 1931 following the panopticon model advocated by Jeremy Bentham. The prison was in use until 1961 and is now a museum. You cannot help thinking that a panopticon model would have suited a particular kind of regime. Fidel Castro himself once was a prisoner here. Anyway, many people were forced to leave or choose to leave Cuba. Duke University has made a digital collection on Caribbean Sea Migration between 1956 and 1996 in which you can find apart from Cuba also Haiti and the Dominican Republic. At Habana Patrimonial, a portal to Cuban heritage, only the links to museums seems to be functioning.

Whatever the future might bring for the Cuban people, Cuba and Castro formed an inseparable unit. To the alliteration of these words many will add the name of Kennedy. The Cuban missile crisis of 1962 is the subject of a virtual exhibition created by the John F. Kennedy Presidential Library and Museum in Boston. It is easy to focus on the clash between Cuba and the United States in the second half of the twentieth century, and therefore it seems just to remember here also at least briefly the story of the Amistad. Tulane University has created Slavery and the U.S. Supreme Court: The Amistad Case, a digital collection about the story of a ship with 53 Africans faced with the threat to become slaves. Their voyage to New York started on June 28, 1839 in Havana. Tulane University has also created a digital collection with some 1,800 early photographs of Latin America. For a much wider panorama of Latin American legal history you should not miss Global Perspectives on Legal History, the book series both in print and online in open access of the Max-Planck-Institute for European Legal History at Frankfurt am Main. This institute runs several projects on legal history and Latin America.

You might be tempted to think my tour of websites could go on forever! Those who visit my blog more often are used to see contributions with many web links. I provide them for your use, not to chase you away from my blog, but to bring you to resources which are sometimes difficult to find or easily overlooked. Please use these links, it is a pleasure to share them with you, and hopefully they help you to gain insights into Cuba’s (legal) history and culture.

A postscript

Of course more blogs bring posts and comments about Cuban history and Fidel Castro. Here a selection:

-Cindy Hermus, The Cuban Revolution and me, Age of Revolutions – July 4, 2016
-Michelle Chase, Reading List: Cuba, Age of Revolutions – July 7, 2016

One post is always too short to mention everything, but the presence of Cuban legal materials at LLMC Digital merits attention for those able to use them at subscribing institutions. A search at the World Legal Information Institute yields results from 1758 onwards with cases in English reports. The Latin American Interests Group of the FCIl-SIS, a branch of the American Association of Law Libraries, is working on a new online Guide to Legal Research on Cuba. Meanwhile the guide to current Cuban law with lots of links offered by the Law Library of Congress should satisfy many needs. At Globalex Yasmin Morais is responsible for the guide on contemporary Cuban law.

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.

Looking for and beyond origins

Finding the origin of something can be fascinating, and this kind of search can bring you much more than just a satisfying conclusion. The direction in which you search for a particular origin can be revealing in itself. Often it is tempting to search within the framework and the borders of current nations and states, but some origins are to be found in periods before these territorial units were shaped or are just outside our normal view of things. In this post I will look at some examples of searches for origins and the way they can bring us at the best partial answers, and in the worst cases only the views of history’s winners.

One of the major current movements with attention to origins is the trend in the United States to search for the original meaning of elements in the American Constitution, especially for the interpretation of a number of the famous amendments. I will not advocate here any particular way to tackle specific questions or to complete quests in this field, but it is tempting to write a kind of nutshell guide to a number of relevant primary sources. Today you can find an increasing number of them in online digital collections. Thus you can check the marvellous Founders Online (National Archives) with papers from six influential Founding Fathers. Interestingly this project includes records from the colonial period (1706-1775), a valuable hint the history of the United States did not start ex nihilo. At The Founders’ Constitution (University of Chicago), a web version of the book by Philip B. Kurland and Ralph Lerner (5 vol., Chicago, 1986) you can consult the sources in the works of philosophers and other authors of many ideas discussed and taken up by the founders of the United States.

Last year I looked here at the legal history of New Amsterdam, and some legal elements from the Dutch period survived into later centuries. For almost every founding father there are separate digital collections, in particular for the first presidents. It is possible to widen their circle with others, for instance with The Federalist Papers (Library of Congress), also available at Founding Fathers, where you can find conveniently many other key documents. Among the most valuable extensions of this inner circle are the digital projects for the John Jay Papers (Columbia University), the digitized books from the library of John Adams (Boston Public Library), and the digitized archival records in The Papers of the War Department (1784-1800). The Library of Congress provides anyone interested with a quick guide to digital versions of core documents in its web guide Primary Documents in American History.

However valuable these digital resources might be, it seems they leave out a substantial part of American history. Some vigorous recent alerts on social media and blogs, and in particular the launch of a new digital collection have made me aware of this painful truth. Even my own collection of relevant digital libraries shows the same lacunae, apart from some exceptions which will feature here. It is not just a case of something missing, but a number of people who lived in the Americas are almost absent. It dawned on me that I have been seduced to look too much along the lines of nations and states still present on contemporary maps. To make things worse, there is a problem in designating these people, and this explains also to some extent my omissions. Where are the original inhabitants of both North and South America? Where are the people defeated by the conquistadores? Where are the various tribes we used to name Indians? How useful and truthful is it to use words as native or indigenous people?

In this post I will look at some new digital projects concerning the “colonial period” of the United States, and I will try to provide here some information about projects bringing us to resources and primary sources concerning the people living in the Americas before and during the period shaped by the presence of people from Europe. If I succeed here in documenting here at least some of the gaps and omissions, it is of course just a first step in doing things better in the future, and not a definitive answer to some of the questions to be addressed here.

Colonies and their context

banner-colonialnorthamerica

Among the prompts for writing this post is the Colonial North American Project at Harvard University. In this digital collection items from many institutions at Harvard will eventually appear. At present I could find some 120 items when searching very globally for Indians, and this number stands in relation to a current overall number of 2,200 digitized items. With the advanced search mode you can pursue much more detailed questions. Various Indian tribes and aspects of relations of the colonies with both tribes and individual persons might well come more into view when more archival records and books will have been digitized.

Where should one start looking for materials concerning the original inhabitants of the Americas? The Indigenous Law Portal of the Library of Congress can serve as a starting point. One of its strengths is the indication at the very start of both divisions along the frontiers of nations and a more general approach. You can use selections for Alaska, Canada, the United States, North America and Mexico, and you will find links to a number of major relevant portals. The portal was launched in 2014. Interestingly it was Jolande Goldberg, a bibliographer trained as a legal historian, who developed a new classification system, the KIA-KIX series, for the relevant materials in the Library of Congress; this part of the story is nicely told in a post on the In Custodia Legis blog. The portal contains in the United States section first of all a massive and yet compact listing of links to websites, projects and collections elsewhere, and you can narrow your search to large regions or go to a specific current state within the USA. Earlier on the Library of Congress had already digitized a number of Indian constitutions, ranging from the nineteenth to the twentieth century, Their sheer number will be a surprise.

Just how large the challenge is to approach the history of original inhabitants is very clear at the portal Indigenous and Northern Affairs Canada. This portal mentions status tribes, Inuit, Métis and non-status Indians, and urban original people. Many of the tribes refer to themselves nowadays as First Nations. Here, too, the very number of tribes, groups and other units will be an eye-opener. Until now I had just missed the concept First Nations on my page with digital libraries. Among the links I had included for Canada until now you might perhaps first go to Peel’s Prairie Provinces (University of Alberta), a portal with digital collections containing a substantial number of books about Indian tribes.

Another thing is clear for me, too. It will not help to lament about lacks, gaps and omissions. Some of the links on my digital libraries page do touch the subject of indigenous people. In fact, this page does gather a number of things not easily found elsewhere at all, and it might become necessary to divide the information on a number of sister pages. Lately I have added to some of the sections for continents a list of general projects which touch several countries. These links used to be positioned near the end, but now they can be found in a better position.

North America

 

Banner Turtle Talk

Several ways offer themselves to find out more about current indigenous law and earlier periods. One of the tools will be for example finding a blog that helps you to become aware of current matters and which might offer also a repertory of useful resources. In my view the Turtle Talk blog of the Indigenous Law and Policy Center at Michigan State University College of Law does fit into this description, and its blogroll brings you to more blogs.

For the United States I did see in the past six years a number of relevant projects:

For Canada my links collection might be meagre, but luckily I did find two collections tucked away on my page for virtual exhibitions in the field of legal history. Libraries and Archives Canada created a digital collection called Aboriginal Documentary Heritage, and there is a small collection around the first settlement with native people in 1899, Treaty 8. It proved to be relatively easy to find more relevant digital collections in Canada, and in order to make this post not too long, I will offer here just a list:

The History Education Network / Histoire et Éducation en Réseau offers a useful repertory of digitized primary sources for Canadian history, yet another starting point for further research. I was aware of projects such as Early Canadiana Online, but I had simply overlooked its section on Aboriginal Studies with some 900 digitized titles. The wealth of specific collections for a particular theme does not always diminish the value of more general portals. Only when you decide to create a database for links collections and provide sufficient tagging you can largely avoid such omissions. Such projects require the forces of teamwork or crowdsourcing. My appeal on my website for additions and corrections is not just a kind gesture or a rhetorical phrase, but a very serious question!

Latin America, Australia and New Zealand

For South America, too, I can point to some digital collections. In Chile the Memoria Chilena: Salas Virtuales created by the Biblioteca Nacional de Chile does have a section Derecho indiano as a part of a larger field termed Política y legislación. The University of Arizona is home to the Morales de Escarcéga Collection, accompanied by a virtual exhibit. For two of the historic people in Latin America I can at present not point to a digital collection, but instead we have at least the guidance of a fine virtual exhibit at the Tarlton Law Library (University of Texas at Austin) with a bibliography devoted to Aztec and Maya Law.

At least a part of the legal history of the aboriginal people in Australia is documented in two digital collections, Founding Documents: Documenting a Democracy of the National Archives of Australia – with 110 digitized documents – and Agreements, Treaties and Negotiated Settlements Project (University of Melbourne). Centers have been founded to study indigenous people and law, for example the Indigenous Law Centre of the University of New South Wales. New Zealand can point to the New Zealand Electronic Text Centre (Victoria University of Wellington) with among their projects for example He Pātaka Kupu Ture – The Legal Maori Archive. The New Zealand Digital Library is in fact a portal to several digital collections, one of them concerns Indigenous People. The Treaty of Waitangi – Te Tiriti o Waitangi is the subject of a virtual exhibition of Archives New Zealand which puts on display not only this treaty from 1840, but also the subsequent treaties.

Instead of giving here more examples it is better to mention just the Endangered Archives Project of the British Library, yet another galaxy of resources discussed here earlier. In many cases projects focus on minorities in many parts of our world whose cultural heritage needs urgently to be described and preserved, or they document historical phases threatened to disappear completely. The very short lengh of this section should at least remind me there is a lot of work to!

Some steps towards a search strategy

Banner database Smithsonian Libraries

If you want to find more virtual exhibitions about indigenous people all over the world you can benefit as much as I have done so far from the marvellous database of the Smithsonian Libraries. Virtual exhibitions often provide a basic bibliography, bring you telling images and point to other relevant websites. Some of them are in a class of its own, and I cannot help pointing to the virtual exhibit about Aztec and Maya Law of the Tarlton Law Library, not just because Mike Widener helped creating it, but because of its excellent qualities.

Indigenous people live on all continents, and it is simply not feasible to present here an exhaustive search strategy. In this section I will look at some tools guiding you to digital collections with a focus on the United States, but often you might find materials relating to other countries, regions and people. Let’s start with the Digital Public Library of America (DPLA), a portal created with the support of an increasing number of digital projects; I wrote here about it in 2013. The DPLA portal serves as an aggregator of these projects and you can enjoy the harvest. A blurb on the website tells us there are now nearly 12 million digitized items in the DPLA. When you use the subjects tab you will find a list in either alphabetical or descending order with the number of items for a particular subject. The general subject United States is used for 450,000 items, the highest number for any subject. The term Native Americans is good for nearly 70,000 items, Indians of North America for 22,000 items, and Indigenous population yields some 6,000 items.

A few weeks ago I noticed the link to the project Opening History of the Grainger Engineering Library at the University of Illinois at Urbana-Champaign did not function anymore. This project was launched in 2007, and consisted of nothing less than an exhaustive searchable database for finding digital collections created by libraries, museums and archives in the USA concerning US history. When you still might mutter I did exclude aspects of history from my website you might question yourself why you never or seldom used this resource for doing North American history. The change of the university’s name into University of Illinois has to be taken into account for the changes in many web addresses. Under its new name IMLS Digital Collections and Content – and a new logo cleverly suggesting you look at a beta version of DPLA – you can search among some 2,400 digital collections. If this is too much of a good thing, you might like to look at two web guides of the Library of Congress, the first for State Digital Resources: Memory Projects, Online Encyclopedias, Historical and Cultural Materials Collections, the second called State Resource Guides. When you use these overviews it might be enlightening to compare them with the links put together as Resources for Doing Legal History provided by the American Society for Legal History. A very practical need for historical research can be served by HISGIS systems such as the Atlas of Historical County Boundaries (Chicago, Newberry Library).

In an exchange with Klaus Graf a year ago at Archivalia – this happened originally at its old address – we discussed concisely the overviews of a number of suppliers of systems for digital collections. Graf admired the overview by Bepress of book and archival collections created by users of its Digital Commons system. However impressive this and four other lists of collections using this system are, they remain just alphabetically organized lists. I will not repeat here my discussion of other suppliers, but in my view the best representation of digital collections powered by the same system is the Collection of Collections database for the CONTENT-dm system, a product of OCLC. You can use the simple search or the advanced search to find collections for a particular subject. For tracking down a relevant collection among the nearly thousand digital collections you simply need a relational database. Since many of these collections are either based in the United States or deal with aspects of its history it is good to have a look at it. Part of the fun here is that the overview, too, has been built using this very collection system. In fact other suppliers, too, provide a database to search for particular digital collections using their systems. Alas there is only a list of examples for the open access Greenstone system.

Facing complexity

Let me close the circle of this post and return to the colonial period, and more specifically to New Amsterdam. The digital collections of the New York Public Library are a mer à boire. It is a joy to look at them and it makes your curious about what else you might encounter. Among the digital collections of Harvard University you should take a look at other projects concerning colonial history, Images of Colonialism: Africa and Asia and Harvard in the 17th and 18th Centuries.

If you conclude there is not a single gateway to the history of indigenous people, this mirrors exactly the challenge facing our world. The UNESCO devotes a section of its portal to indigenous people. If you want to look at current indigenous law, you could start with the concise research guide at Globalex. The complexity of matters touching indigenous people, the complexity of talking in a sensible and direct way about them, is not something coming out of the blue. History and law, legislation, jurisprudence and treaties, court decisions, legal education, the use of languages and much more come together here.

Sometimes you need to be pushed into action. Last week a tweet of David Armitage brought me to Rebecca Onion’s article at Slate on the colonial trade in North American slaves, more precisely, “Indians”. Yet another spur to write was this week’s post about Chief Justice Roger Taney at the Maryland Appellate Blog. I might perhaps have chosen ‘First Impressions’ as my title! This post is more or less a field report. It might be impossible to see and understand everything, but I am convinced you cannot reach perfection. You can only make faults and mistakes if you start at all with looking beyond your comfort zone and the tacitly agreed limits of a discipline. Keeping a portal on legal history up to date will always include making minor and major adjustments, spotting omissions, and gaining insight. To rephrase words of Timothy Radcliffe, if you want to debate the results, let’s talk about them, not to win an argument, but to become wiser together.

Safe under a shield: A dual approach to the Prize Papers

Logo Open Access WeekThis years’ Open Access Week (October 19-25) is the occasion for a post about a number of projects tapping the wealth of the remarkable archival collection of the High Court of Admiralty (HCA) in the British National Archives. Several projects deal with a few record series within this archive, the Prize Papers. Someof these record series have become accessible online in open access, others, however, can only be viewed only at subscribing institutions. This contribution offers a sketch of the situation facing scholars who might want to use these rich resources. Surely one of their questions is why such differences have been allowed to develop by the National Archives and the partners in the various projects concerning the Prize Papers. My post will not offer a definitive conclusion to this question, but I will try to create a starting point for further consideration.

In 2012 I focused on the project concerning the so-called Sailing Letters, focusing on Dutch letters found among the Prize Papers, and I will therefore discuss this project here concisely. The recent launch in open access of an online atlas created using the Prize Papers and bringing a most interesting example of possible research rekindled my interest in the archives of the High Court of Admiralty.

Ships from every corner of Europe

When you look at the fine online guide for the High Court of Admiralty at the website of the National Archives at Kew some things will attract your attention, that is, when you do not start immediately to read the guide. First of all, the sheer length and detail of the guide does credit to the importance of this archive. For many HCA series you can find more information on consecutive pages, and this feature can only be applauded. Secondly, at the very start it is indicated no materials from the High Court of Admiralty are online at this website, a statement which is correct, but it does not tell you enough. In the section about the Prize Court you will find the link to a finding aid at the website of the Dutch Nationaal Archief in The Hague, with a lapidary statement that this deals mainly with the series HCA 32, the Prize Letters. However, this is simply misleading, The Dutch finding aid does provide with an index of Dutch letters in other HCA series as well. Only using an online search engine I found a Powerpoint presentation at the website of the National Archives about the ongoing cataloguing of the HCA series (13 MB).

The website of the NA does not bring you directly from its general HCA guide to the Dutch online general guide to the HCA 32 series with its thousands of letters, and in particular some 8,500 scans of Dutch letters, not just from the HCA 32 series, but from other series as well. You can also download the introduction to this index as a PDF or EAD.

Apart from these remarks the most important thing you will register is the great variety of resources forming entire record series which merit attention both per se and, more importantly, within the context of the history of the High Court of Admiralty. Normally you would not decide so quickly to single out one particular record series of an archival collection without acknowledging its wider context and setting. There are more than sixty HCA record series, eleven series for the Court of Delegates (DEL) for appeals in instance cases, and five series for the Judicial Committee of the Privy Council (PCAP). Nine HCA record series make up the main body of the records of the Prize Court, and seven HCA series deal with appeals in prize cases. HCA 30 appears at several points in this guide, the last time in a paragraph stating this series contains Admiralty Miscellanea. The guide closes before the very useful glossary of legal terms with a clear warning: “HCA is a large and complex collection of documents, and this leaflet does not attempt to be comprehensive. Both the finding aids and secondary reading can be found at The National Archives.”

When you continue focusing at the HCA 32 series at the website of the National Archives you will encounter a set of digitized records, four French muster rolls of ships captured in 1805 during the Battle of Trafalgar. As is the case with more digitized records at this website, you can search freely in these records, but you have to pay to view this pieces. It would be nice if one could download them at least one day every year without this financial procedure or with a broadly advertised discount, preferably on October 21, the day of the Battle of Trafalgar. Here I leave it to others to find out about the digitization of other records in connection with Nelson.

Prize papers at a price

Banner Gekaapte brieven

My story of open access and subscribers-only access becomes more complicated when we look at the major research projects for the Prize Papers. In my country the project for the Sailing Letters gained most publicity. In five issues of the Sailing Letters Journaal edited by Erik van der Doe, Perry Moree and Dirk Tang a number of letters appeared in critical editions with accompanying essays. At Gekaapte Brieven [Captured letters], a website created by the Meertens Instituut in Amsterdam, you can view both the originals and transcriptions of six thousand Dutch letters from the seventeenth and eighteenth centuries. The transcriptions were done to a large extent by crowdsourcing. At the University of Leiden the project Brieven als buit [Looted letters] resulted not only in an online linguistic corpus for roughly the same set of letters, but also in a number of monographs, mainly dissertations. The Dutch Nationaal Archief created as lasting results the finding aid, the searchable index and a substantial number of scans, all of them accessible in open access. At the center of these projects were the Dutch letters documenting social life and the uses of the Dutch language in daily communication.

The blog of the Prize Papers Consortium shows graphically the number of parties participating in projects concerning the core of the archive of the High Court of Admiralty. Interestingly, this blog mainly shows the amount of preparations to launch the Sailing Letters project, and at some points the major project for digitizing a substantial number of other archival records is already hinted at. For the historiographical background of the projects dealing with the Prize Papers this blog – kept alive after finishing the Sailing Letters – is invaluable.

Logo Marine Lives

A second major project tapping the riches of the HCA archive is Marine Lives. This project puts the life of sailors and the events touching their ships first. In striking difference with the projects for the Dutch letters you find here images and transcriptions for selected items taken from several HCA record series. In fact the team of Marine Lives organizes campaign to deal with a clearly set case or a few registers. At present you will find for example a project focusing on the capture of three ships with Spanish silver in 1652, using in particular the HCA 13 series with in its 272 bundles and volumes in particular answers and examinations in prize cases and instances. For this case only the team does use as main resources four volumes of the HCA 13 series, HCA 13/66 to HCA 13/71. The description of this case is a veritable mine of information, and you will benefit from looking at this case, its references and bibliography. At the website of Marine Lives you can find the transcriptions of relevant pages in HCA 13/69. For other projects participants in Marine Lives have also looked outside the HCA archive, for instance at probate records and chancery records. By casting its nets wide Marine Lives does in my opinion justice to the sheer range and scope of the HCA archive, and their overview of records to be dealt with bears witness to this statement. Marine Lives is not just a project, but a set of projects showing the importance and impact of maritime life for British history in general. Most of them focus on a particular archival record documenting a period of one or two years during the seventeenth century, or in the case of the Silver Ships on a particular case.

Banner Global Worlds

The same width and broad scope is a feature of the bilingual Prize Papers portal created at the university of Oldenburg. Alas this portal does contain only announcements of research, and the website has not been updated since 2012. The projects of German scholars will cover subjects such as cultural exchange, the material world of Frisian in the eighteenth century, missionary activities, views of the body, learning foreign languages and the role of correspondence. Whatever the outcome of these projects their aim is clearly showing the chance to open with the Prize Papers windows on a world in various ways. A nice element of the portal is an image gallery showing boxes holding the paper materials, various objects, word lists, drawings and notes, playing cards and much more. The Prize Papers are indeed a great time capsule.

A seducing interactive map

Banner Prize Papers Atlas

In the last major project open access and subscribers-only access rub shoulders. When I spotted the interactive map accompanying Brill’s online edition of selected Prize Papers I knew I would write here about it sooner or later. The interactive map uses information for the period 1775-1783, the years of the American Revolutionary War and the Fourth Anglo-Dutch War, doubtlessly a very interesting sample period. The sample uses some 7,000 interrogations. In her background essay for the Prize Papers Online I Caroline Kimbell of the National Archives skilfully tells the story of the various locations and the rare use of the Prize Papers before 1980, a story not to be missed. At the map you can pose your questions helped by eight search fields about ships and six fields for their crews. The introduction contains a number of preset configurations for a number of subjects, for example the voyages of sailors from Scandinavia or the origins of illiterate crew members. The results on the map contain clickable links to the scans which can in most cases only be accessed by subscribers and subscribing institutions. Only at this point it becomes clear it is indeed the HCA 32 record series forming the backbone of this large-scale project with five sets, each of them focusing on a period of war. Eight sample biographies with scans of the interrogations accompany the map, as does a list of some studies, a number of them available online. You can search online in each set, but you will receive only restricted information and a thumbnail for the purchase of full access.

Logo Prize Papers Online

In the last paragraph I already hinted at a problem with the selected periods, the choice for war years. Wars had and have a major impact on society, but one will have to look at the years before and after a war, too, to gain insight into any substantial differences. The choice for war years during the eighteenth and early nineteenth century does make it possible to compare consecutive wars and changes in conditions for ships and crews. A second problem is the decision to include here only interrogations, presumably taken in overwhelming majority from the HCA 32 series. The guide to the HCA archive at the website of the National Archives shows precisely for this series a nice division into sets stemming from war years, and obviously the temptation to start with its crisply defined sets has been strong and convincing. I cannot help noticing the omission of the very series number in the introduction to each set of Brill’s Prize Papers Online. The correct references are also lacking for the sample biographies, In contrast to the images for the other projects discussed here the images of the scans of Brill’s project do not show the HCA 32 numbers.

Contrary to the policy for many commercial projects with digitized historical resources Brill does indicate clearly the price of € 45,000,- for purchase of access to the five sets, and € 8,500,- for yearly subscription. Access for one set comes at € 9,000,-. As a matter of fact Brill does offer a number of books online in open access, and this publisher gives discounts and waivers to people in developing countries for some online materials. The old motto of this Dutch firm, Tuta sub aegide Pallas, “safe under Pallas’ shield”, has evidently renewed its meaning and significance. Many will read here protection for its own interest instead of protection and care for the texts written by Brill’s authors trusting the high standards of this publisher.

Some questions

Is it a blessing in disguise that only some years of the HCA 32 series can only be accessed online at subscribing institutions? Instead of lamenting the protective shield around Brill’s digital resources we could also consider the chance to create in new projects open access to other series of the mighty HCA archive kept at Kew. In my view the different approaches shown here each have their qualities. The Dutch projects with the letters literally give us the most telling personal stories. Marine Lives makes a choice to look at a number of HCA record series and at particular cases. The team at Oldenburg promises to open vista to global worlds, but the portal shows no results at all, apart from the tantalizing showcase with a great choice of images and objects. The interrogations published by Brill benefit from the standardized form with thirty-two questions which makes this series to a substantial extent reliable and open to statistical treatment. Many scholars will use it as a part of their own research, not as the sole resource at the center of their interest.

Anyone organizing large-scale projects in the humanities does know that finances are often a determining factor in launching and finishing them. Brill obviously reckons the internal qualities of the record series is sufficiently high to make institutions pay for this publisher’s efforts to make this series of the Prize Papers accessible online. The interactive atlas is a showcase inviting scholars to convince their institutions to give them access to this remarkable resource. However, the German project convinces me even in its embryonic stage and hidden progress there is indeed a world to win when we opt for a broad approach to the records of the High Court of Admiralty. Marine Lives probably makes the wisest choice to alternate between singular records and major cases within a limited time span, and thus you can gain relatively quickly more insight into the chances for further research using the entire range of the sixty great HCA record series. The digitized letters remind you to remember the human and personal aspects of the large theme or subject you would like to investigate.

Banner National Archives

Perhaps it is wise to realize your luck as a historian in having at your disposal on your screen one or two major record series within the many boxes of the HCA archive. In view of the prize for the sets offered by Brill the best policy is probably to go to a subscribing institution for online access to one or more of these valuable sets, to arrange for images from the National Archives at Kew, and to pay a visit to this outstanding archive.

A debate about the use of digital resources should not lead us away from scholarly literature en sources in print dealing with the High Court of Admiralty. Using the Karlsruher Virtual Katalog and tapping the wealth of the library of the Max-Planck-Institut für europäische Rechtsgeschichte in Frankfurt am Main you can find numerous publications. Eighteenth-century pamphlets and books, too, can be most helpful or serve as a starting point for archival research. In his research concerning Admiralty cases from the sixteenth century Alain Wijffels (Leiden/Louvain-la-Neuve) looked in particular at the role of Roman law. Wijffels has devoted several studies to Admiralty cases, including even in 1993 a Cambridge Ph.D. thesis on Civil law in the practice of the High Court of Admiralty at the time of Alberico Gentili. Do not tempt me to add here more than just the titles of relevant publications of the Selden SocietySelect pleas in the Court of Admiralty, vol 1: 1390-1404 and 1527-1545, Reginald Marsden (ed.) (London, 1892; Selden Society, 6), vol. 2: 1547-1602, Reginald Marsden (ed.) (London, 1897; Selden Society, 11) and – more recently – Hale and Fleetwood on Admiralty jurisdictions, M.J. Pritchard and D.E.C. Yale (eds.) (London, 1992; Selden Society, 108)!

There is enough space and material for approaching again this court with its magnificent holdings and using them to the benefit of the field of legal history, too. If legal historians want to have open access to any HCA record series which has not yet been digitized, it is up to us to follow in the wake of the Marine Lives team, and to start our own projects to achieve this aim. Publishing firms will steer their own course. Some universities have already created their own open access publication series or indeed changed their university presses into open access establishments. In my view watching from aside the struggles between publishers and libraries about access to scholarly publications is to take sides. The scholarly community itself has to play an active rol in this turbulent period with major changes in communication and access to information. Fighting for open access has only just started.

A postcript

Almost two weeks after publishing this post I heard about another project with Early Modern letters. The international project Signed, Sealed & Undelivered deals with some 2,600 letters – written in six languages – from the seventeenth century found among the holdings of the Museum voor Communicatie (MusCom) in The Hague which received the letter trunk in 1926. New technology will be used for the deciphering of 600 of these letters without even opening them, and thus preserving the sometimes peculiar foldings of personal messages.

On February 1, 2016 the Huijgens Institute in The Hague announced news about funding by Metamorfoze, the Dutch program for conservation and digitization of written and printed cultural heritage, for digitizing 160,000 pages with Dutch materials from the HCA archive as a new phase of its own project Prize Papers Online.

Going the long roads: Legal history and The History Manifesto

Cover This year saw in June some twenty conferences in the field of legal history, but now in August the congress calendar of my blog shows no events. It is summertime and scholarly life, too, goes at a slower pace and in different rhythms! During my holiday I could find much time for reading, and without events to attend I hope to read more this month.

One of the books offering itself for a reading in calm and quiet surroundings bristles with energy. Last year Cambridge University Press published The History Manifesto by Jo Guldi and David Armitage, both as a book in print, as an e-book, in a web version and as a PDF. In 2014 I read it very quickly, and indeed its style helped me to fly through its pages. However, if the proposals and visions of the two authors make any sense, a more detached second reading is needed. What’s in it for legal historians? Do Guldi and Armitage have a message for them, or even multiple messages? What are the challenges facing the various fields and corners of legal history? Can we safely follow its recommendations and examples, or are there different directions which will be more rewarding? In this post I offer a personal view about this provocative book.

A call to arms

The opening words of The History Manifesto echo the Communist Manifesto which did indeed stir minds and governments. Both texts are divided into an introduction and four chapters, and they share the use of incisive and trenchant statements. However, with 125 pages for the main text the 2014 manifesto is really a book, not just a pamphlet-length treatise, In addition forty pages of notes and an index for persons and subjects place it in another category.

A summary of the book by Guldi and Armitage is not out-of-place here. The authors start with an introduction which depicts the humanities in a state of crisis. The following chapter looks at the origins of the modern concept of the longue durée, associated with Fernard Braudel and the impact of the French Annales school of historiography. In the second chapter they investigate the place of research concerning long-term developments in historical research between 1950 and 2000. The third chapter discusses the amount of attention historians paid in the twentieth century to such matters as worldwide changes in climate, inequality and the ways governments function. The last chapter is a plea to ask the great questions and to use Big Data in new ways that bring sound analyses for the problems of our times leading to actions for the future. One of the themes in the conclusion is the public role of history and historians in our century.

The great seduction of Guldi and Armitage is the invitation to combine without questioning two assumptions, the importance of history and the urgent need to follow the directions they indicate. I would not be a historian if I did not believe in and practice history with all its qualities. The second assumption is presented in a most enticing way. Guldi and Armitage are skilled story tellers, and it feels safe to join them in their explorations. The prophetic tone of the new manifesto brings a smile, because it makes you feel you are at last in good company with people who can see through the layers of society and open vistas of a world where historians and their research are almost bed fellows to power, guardians of the truth and the common good, and councillors with sound counsels. “Historians of the world, unite! There is a world to win – before it’s too late”. Even if there is a spectre haunting the modern world, you can find here a benevolent spirit ready to save mankind.

Guldi and Armitage are serious historians, but you cannot miss the ideological overtones of the manifesto. It would be wrong to dismiss the manifesto as nothing but a resurfacing of left ideologies. In fact they point not only to values and visions worth defending and promoting in their view, but they are also clear about the supposed neutrality of a world reigned by capitalism and neoliberalism. They point to research showing the impact of capitalism not only for the economy, but in particular also for the environment.

On the website promoting The History Manifesto there is ample space for discussion and criticism. The original version published in October 2014 has been followed in February 2015 by a corrected version with an accompanying revision notice. One of the salient features revised is a graph at page 44 depicting the percentage of Ph.D. theses written in the United States dealing with historical subjects during long periods. The alleged “downfall” of interest in long periods was less steep than suggested. One can frown about the very choice of American theses where a comparative perspective or a similar sample of published history books might have been more convincing. British and American history together provide the majority of examples, even if former British colonies are present, too. China gets more space than Japan.

At first I had no intent of looking at this book through Dutch glasses, but on second thought this, too, is useful. At page 65 Guldi and Armitage list a number of infrastructural projects “where nations have assumed responsibility for preserving life into the future”, among them “the government-built dykes of the early modern Netherlands”. The typical Dutch thing about the medieval and later dykes up to 1700 is that the overwhelming majority has been built by local governing bodies with whom resided full authority and jurisdiction. Centralized efforts to restore areas claimed by the floods of 1530 did utterly fail. In the seventeenth century the large land reclamations north of Amsterdam such as the Beemster (1612) and the Schermer (1635) succeeded thanks to the efforts of private investment companies. In the same paragraph the authors make the point that central authority is not always a prime mover, and here the Dutch dykes would have fit in excellently. This might seem a tiny detail, but historians have to deal with both details and larger contexts, especially when you want to give tell-tale details. As for the importance of the history of water management the manifesto does point to the studies of Terje Tvedt.

Short periods, long periods and legal history

Logo The Republic of Letters

Instead of picking at possible faults and mistakes it is perhaps more rewarding to look at the fruits of The History Manifesto that are interesting for legal historians. Do Guldi and Armitage look at legal matters in the past apart from inequality and injustice, and cite research in the fields of legal history? They do indeed, and I will give here a summary overview.

In the first chapter the influence of Theodor Mommsen and Henry Maine is mentioned with approval as an influence on various social history studies by Sidney and Beatrice Webb. Paolo Grossi’s research about the history of property figures in a footnote. Later on it is no surprise that ownership figures prominently, for example Aaron Sakolski’s Land Tenure and Land Taxation in America (1957) who wrote about the views of major legal historians about the history of ownership. The two authors point to older studies such as Eugène Garsonnet, Histoire des locations perpétuelles et des baux à longue durée (Paris 1878) which helped Braudel during the fifties in creating his concept of the longue durée. Paul Warde traced the impact of real and perceived wood shortage on emigration using court records from many places in Europe. The series of digitized criminal court records of the Old Bailey between 1673 and 1914 is proudly present, as is Colin Wilder’s project Republic of Literature (RL) where legal texts are linked to a vast network of scholars and students and the ways they influenced German society in the Early Modern period. The datasets and the conceptual model behind RL are open to scholars for doing their own research. Paul Johnson and Stephen Nicholas studied criminal records in England and Wales between 1812 and 1867 which contain the height of the accused in order to find evidence for any improvement in living conditions. The history of slavery and its changing interpretations appear in every chapter. Using the contents of probate inventories as a kind of testing ground for all kind of changes is another example of sources familiar to at least a number of legal historians, In the final chapter Guldi and Armitage cite a possible study to words for emotions in court records as an example of future research for which historians are in their view exceptionally well equipped.

While looking for the relationship between attention to long periods and legal history I was somewhat mystified by the role allegedly played by Quentin Skinner. Guldi and Armitage present him (pp. 47-48) as a defender of contextual scholarship who attacked those favoring grand theories including attempts at long-term history. Skinner did certainly criticize those who tried to construct fanciful histories of ideas, but in his later publications he certainly did not avoid major subjects such as republicanism and freedom in Early Modern Europe, a time range of three centuries. I cannot help thinking about the proverb coined by George Bush “Who is not against us is for us”. Another saying, “Why should facts hamper my theory?”, is probably closer to the mark.

Blessings in disguise

As a medievalist I am used to the fact that results in studies dealing with long periods and major themes cannot be transplanted ceteris paribus to medieval studies. For The History Manifesto legal history mainly serves as a stepping stone or sometimes as an approved guide for a particular subject or problem. To do justice to the facts one should note that the website of the Republic of Literature, too, does in its present state only refer to the titles of legal texts as examples chosen from Roman and medieval law.

However, it is one thing to depreciate a book completely. and another thing to signal problems concerning the aims, scope, scale and value of a book. If I would make here only negative remarks about their book, I would take the trees for the forest. Guldi and Armitage express their genuine and sincere concern about the practice of history and its impact on society. The authors did a sincere job, and they could benefit from comments on lectures and early drafts by noted historians such as Peter Burke, Paul Freedman. Lynn Hunt and John Witt. You might have heard too often about crises in the historical trade and within the humanities, but even the ideological tone of The History Manifesto does not harm the main argument about the importance of choosing relevant subjects to be studied within a sufficiently long time span. Sometimes it is necessary to look just before and after a particular period to gain real insights, but even so often the micro-historic approach of telescoping into very short periods will pay off.

One of my greatest hesitations with the summons of The History Manifesto is the wish to be close to those in power, in order to give sound counsels and guide long-term policies. We had better watch out to remain independent as far as possible, and not sacrifice this for a clear role in current affairs. The results of historical research can shed light on the present, but they seldom contain infallible guidance for the immediate future or decades ahead of us.

The second major fault of The History Manifesto is perhaps more devastating. The authors highlight at several turns aspects of legal history, but somehow for me it sounds hollow. Generally I do not like to attack the main thrust of a book, but is it not very strange that a book with much attention to struggles against racism, inequality, slavery, environmental threats and the unfair distribution of wealth does not put legal history at its center? Uses and abuses of powers, legal doctrine and institutions, legislation and justice are not just at the periphery of such matters. They are part and parcel of these problems, prime movers and causes, channels of consequences to many events and solutions.

Jo Guldi and David Armitage want historians to tell stories that matter. Just choosing a long period in itself is not enough, and just dreaming about the chances of Big Data is no help, but creating and presenting sizeable answers when accessing and analyzing massive information is an aim not easily to accomplish. This book needs to be read with a red pencil. Your copy should be full with question marks and underlinings, emoticons and marks of approval, wonder and disbelief. The real question is not what these two distinguished scholars do within the provocative chapters of their double-length pamphlet, but what does it mean for your own future research practice, or from a reader perspective, what kind of history might be more rewarding than the studies I preferred until now? Combining the strengths of micro-history and a more synthetic approach within serial contextualism is one of the roads advocated by Guldi and Armitage. The study of revolutions, be it the French, the Industrial, the Russian or the Green Revolution, is helped both by studies with a narrow focus in location and time to look beyond the glamour and clamor of the great cities, and by attempts to create new syntheses building on existing studies, studies that will cover much longer periods. In the manifesto revolutions are a clear example, but it could be as helpful to look in this way, too, at the similarities and differences in riots and revolts, surely somewhat smaller events, but nevertheless often resonating long afterwards. You might find some inspiration in a post about the history of riots on my blog.

In fact studying riots can take you right into living history. The riots after the death of Michael Brown on August 9, 2014, in Ferguson, Missouri, got world-wide attention. The Washington University in St. Louis, MO, has created the digital archive Documenting Ferguson, and you can look also for example at a Ferguson research guide created by the University of Arizona and a similar guide from Michigan State University. This university has also put online a special guide concerning riots and trials touching upon African-American history, Outrageous Justice: Riots, Lynchings, False Accusations and Court Trials with numerous links to websites about trials and courts.

As far as the world extends

Cover Entanglements in Legal History

What are the new roads, scopes and aims of legal historians nowadays? A few paragraphs ago I wrote on purpose about transplanting. Looking at different legal systems is not only a practice in the field of comparative law. In the twentieth century Stephan Kuttner, David Daube and Alan Watson looked across the supposed borders of legal systems, and other scholars have followed their example. The latest issue of the journal Rechtsgeschichte-Legal History / Rg 22 (2014) is dedicated to transnational legal history. The preface by Thomas Duve, one of the two directors of the Max-Planck-Institut für europäische Rechtsgeschichte in Frankfurt am Main, makes clear how this institute seeks to include the whole world in is research, without forgetting its own history of research focusing on European legal history, fittingly symbolized by the new Helmut-Coing-Weg near the institute. It points to new roads with its publication series Global Perspectives on Legal History (GPLH), with the first two volumes already available not only in print but also as PDF’s. The first volume, Entanglements in Legal History: Conceptual Approaches, Thomas Duve (ed.) (GPLH, 1; 2014), sets an agenda for future research. The essays in this volumes look back at the positive and negative sides of earlier research, they chart the impact of colonial and imperial history, and look in more depth at legal transfers and reception of law in the field of international law since 1800. The second volume, Derecho privado y modernización. América Latina y Europa en la primera mitad del siglo XX, María Rosario Polotto, Thorsten Keiser and Thomas Duve (eds.) (GPLH, 2; 2015), looks at the interplay between European and Latin-American history in the field of private law during the first half of the twentieth century.

Closer to my country I am happy to see the very quick publication of the papers read during the last Dutch-Belgian Legal History Days in Brussels, December 2014, a biennial event which gives the floor in particular to young legal historians. Dave de ruysscher and four other scholars edited the volume Rechtsgeschiedenis op nieuwe wegen / Legal history, moving in new directions (Antwerpen-Apeldoorn 2015). Not only the Low Countries, but also the United Kingdom, France, Italy and Argentina figure in this volume. Of course much more could be mentioned. Let three examples suffice: John W. Cairns published this summer Codification, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866) (Clark, NJ, 2015) and Martin Vranken published Western Legal Traditions: A Comparison of Civil Law and Common Law (Sydney 2015). Earlier I wrote here about the Digital Panopticon, a larger than life offspring of the Old Bailey Online project, spanning the oceans and centuries between Britain and Australia with court records as its backbone.

Qua Patet Orbis, “as far as the world extends”, is the motto of the Dutch Marine Corps founded in 1665. Its history of world-wide presence right until now reminds me that we cannot shake off entirely the impact of colonial history and imperialism. Being aware of traditional perspectives and biases is often already an effort, and taking new directions might easily become just a slogan. The book of Jo Guldi and David Armitage deserves at the very least your attention to check for cobwebs in your own thinking and actions. Legal historians might not be able to change the world by the force of their research, but they cannot completely ignore the major problems of our century, such as violence, racial tensions, slavery, human traffic, fundamentalist movements, the weaknesses of civil society and the destruction of natural resources. Legal historians are well equipped to gauge the impact or lack of impact of laws, the workings of bureaucracies, the shifting meanings and connotations of words associated with justice and injustice, equality and equity. It would be a shame to create only results to save yourself a place within the ivory towers of the academic world, and luckily I trust that many legal historians are simply too human and wise to enclose themselves.

Old laws in a new world: The case of New Amsterdam

Digital gallery New Amsterdam

In my latest post I almost lamented the emphasis on European history on my legal history website. In order to make up for any deficiencies I decided to choose a subject outside Europe for my next post. Ironically I arrived at New Amsterdam 1647-1661 thanks to the European History Primary Sources portal. This portal brings succinct records for digitized source collections of whatever nature, tagged with basic information about countries, languages, periods, subjects and resource type. The subject colonial provided an entrance at the EHPS portal for this digital collection created by the New York City Department of Records and Administration. The contents of this digital collection are mainly original and translated ordinances and regulations, a theme firmly within the scope of my blog. In fact the very preponderance of legal resources made me very curious about this collection. Other ordinances from Dutch colonies during the Early Modern period are now also available online elsewhere. Here I will look briefly at those digital collections, too.

A legislative legacy

Earlier this year I enjoyed reading Russell Shorto’s book Amsterdam. A history of the world’s most liberal city (2013) about the rich history of the Dutch capital. In a conversation someone pointed me to his book about the early history of New York The island at the center of the world (2004) which I still had not read. In his book about Amsterdam Shorto dedicated a chapter about the impact of Amsterdam on New York (“Seeds of influence”), yet another reason to get hold of his study about the colorful history of the Dutch colony on American soil.

At the moment of writing the digital gallery consists of just fifteen images and the series of municipal bylaws created between 1647 and 1661. The Municipal Archives and the Municipal Library of New York City will soon add more digitized items to this gallery.

An early Dutch record from New York - image NYC Department of Records

The first ordinance issued by Peter Stuyvesant as Director-General of New Amsterdam, May 31, 1647 – NAR, BK 1

The heart of the digital collection is made up of ordinances and regulations. As for now there are four distinct series, the first with original Dutch records between 1647 and 1661, the second for a manuscript with translations of Dutch records (1647-1654), the third with a digitized version of a manuscript by E.B. O’Callaghan from 1868 with ordinances of New Amsterdam (1647-1661), and the fourth a digital version of the first volume of Berthold Fernow’s Records of New Amsterdam (7 volumes, New York, 1897-1898).

The first section gives you an immediate experience of the surviving resources from the Dutch period of New York. Dutch historians will recognize a smooth seventeenth-century hand, and for others this kind of handwriting is vastly different from English handwriting of the same period. The manuscript with translations of the register shown in the first section might be the work of Cornelius van Westbrook or Edmund Bailey O’Callaghan. The third section gives a manuscript by O’Callaghan with his translation of the same register. In the last section Fernow took over O’Callaghan’s translation of the first register. The digital version shows only the translation of the same register (up to page 49).

The register has been used to create a portrait of Stuyvesant, busy regulating daily life, in particular formulating policies ensuring the common good and adjusting affairs. The general impression is that of working out policies instead of working to ensure justice. Nevertheless I saw also an undated prayer for opening council meetings. If you would look in more detail you would for instance notice the ruling urging to pay Indians correctly for their work (September 28, 1648) and the order on the conveyance of real estate in courts convened by the Director-General (February 7, 1650). This raises the general question of ordinances concerning private law, other laws, the borders of jurisdiction and the functioning of courts.

The first register is given an honoured place, but somehow I had expected more. It is nice to see the different stages from transcripts to translation, and it shows Charles Gehring and all working in his trail were not the first to deal with the records of the Dutch colonial period of New York and surrounding settlements and areas. Those dealing with Dutch palaeography would certainly welcome here a transcription of at least a part of this hallowed register. Let’s say it without hesitation, this digital gallery is really a showcase, if not for its content, then surely for using in its web address proudly the new domain .nyc, anyway shorter than the .amsterdam domain.

Eager for more

Logo New Netherland Institute

Russell Shorto’s book appeared eleven years ago and it has become a classic work, even to the degree that its references remain unchanged in later impressions. For the latest scholarship about colonial New York and the New Netherland period you can turn to the only website Shorto refers to, the New Netherland Project, nowadays called the New Netherland Institute (NNI). This institute maintains a bibliography, and it has created an impressive digital library with both older publications and editions, and also digital versions of its own publications. In 2010 the New Netherland Research Center opened in the same building in Albany, NY, where the New York State Archives and the New York State Library are housed, too.

The logical question to ask here is what we can find here concerning legal history. Property law is written large for example in the three volumes of the Register of the Provincial Secretary (1638-1660). Here, too, is the luxury of a digitized version of the first attempts at translation, Gehring’s modern translation and digitized images of the register itself. Three volumes have been edited with the Council Minutes for the period 1638-1656, a primary source for the executive, legislative, and judicial proceedings of the Director General and Council of New Netherland. The sixteenth volume in the publication series gives us Laws and Writs of Appeal (part I, 1647-1663). The second part of volume 16 contains translations of court minutes from Fort Orange (1652-1660). Again property law is the subject of the translated Land Papers (1630-1664). Fort Orange became eventually Albany. There are minutes of the court of Albany from 1668 to 1685, now kept at the Albany County Hall of Records. The list grows really long! The Van Rensselaer Manor comes into view, too, as are the New Netherland Papers of Hans Bontemantel, a director of the Amsterdam Chamber of the Dutch West Indies Company. Dutch colonial history elsewhere is also present, in the Curaçao Papers (1640-1665) (volume 17), here with a transcription, translation and images .

With separate access to the introductions of all sets, a guide to weights and measures, and last but not least both the original guide to Dutch papers created by Charles Gehring in 1977 and 1978 and its digital successor (2011-2012), you can only wish to have an online directory to the older phases of Dutch palaeography to try to decipher some of the images and to look more closely at Dutch words in the transcriptions. Luckily the magnificent multivolume Woordenboek der Nederlandsche Taal has become available at Leiden in a fine searchable version. The link to the digital collections of the New York State Archives does at first only lead to a free text search and four browsing filters (collections, places, repositories, state agencies), but I could quickly spot the collection for the Dutch settlement at the Delaware river (just one document from 1656), the administrative correspondence for the Dutch colony in New York (231 documents) and colonial council minutes with for example the 1657 Flushing Remonstrance.

Elsewhere, too, you can find digitized sources from the Dutch colonial period in the United States. At a branch of Ancestry is a useful links collection called New Netherland and Beyond. The section about the Dutch period (1621-1664) is the one to go for my purpose. You will find here for example A.J Van Laer’s selections from the Van Rensselaer Bowier Manuscripts (1908) also dealt with by the NNI, and generally digitized versions of the finding aids, reports and translations created by Van Laer, O’Callaghan and Fernow.

Interestingly Dutch ordinances from the Early Modern period are in particular available online for the Dutch colonial period. The Huygens Institute/Institute for Dutch history has created a digital version of the West-Indisch Plakaatboek within its project The Dutch in the Caribbean World c. 1670 – c. 1870. The digital Plakaatboek Guyana 1670-1816 has been launched in February 2015, and this project dealing with Essequibo, Berbice and Demerary, too, is accessible with an English interface. The Nederlandsch-Indisch Plakaatboek 1602-1811, Jacobus Anne van der Chijs (ed.) (17 volumes, Batavia, 1885-1901) has been digitized partially at Oxford (vol. 1-3), but it is available completely – and nicely searchable, too – within the Colonial Collection of Leiden University Library. The version of Van der Chijs at Sejarah Nusantara, a portal for colonial history created by the Arsip Nasional Republik Indonesia, is even better searchable. For the Kaapse Plakkaatboek (6 vol., Cape Town, 1944-1951), edited by M.K. Jeffreys and S.D. Naudé, the first free volumes appear in the digital books section of the firm aiming to be the One and Only Web Firm. The two volumes of the Ceylonees plakkaatboek, Lodewijk Hovy (ed.) (Hilversum, 1991) deal with the period 1638-1796; in arrangement with the publishing firm you can view large parts of it online in the same virtual library as for its South African counterpart. Hovy added to his edition a book-length introduction. The Dutch presence in Brazil was an element in my post last year about Brazil’s legal history, but there is not yet a general edition of ordinances. By the way, in the Dutch language both spellings plakaatboek and plakkaatboek exist side by side, yet another difficulty to trace these modern editions and their older predecessors.

Mapping the early history of New York

By now it should be clear how necessary it is to view the digital gallery of one early register within a larger context, for example that of the Dutch colonial enterprises, but it is certainly wise to look also at other countries and their activities on the American continent. Even the English colonies show great differences. A monolithic view tailored to the taste of those wanting rapid answers caters for a substantial niche, but it does not bring you answers with subtle nuances or even new questions.

Shorto makes a case for looking anew at both the origins of New York and the United States. Looking at the Dutch period and the legal transplants effected by the English can help to see American legal history in more depth, beyond the battlegrounds of originalism. Shorto tries to create a new picture of Peter Stuyvesant (around 1611-1672), yet it might seem he overstates his case. I cannot help thinking that one tries to make out much of relatively scarce resources. The translated documents show more pieces of a puzzle, and maybe indicate we have to deal with several puzzles with large gaps or with maps showing empty areas.

In fact when preparing this post I did not just look at sources indicated at the website of the New Netherland Project. The Fordham University in Nw York City has created a digital collection of old maps showing New Amsterdam, New Netherland and New England. In Chicago the Newberry Library presents an interesting gallery with maps for American colonial history, initially made for educational use. A particular link with New Amsterdam is provided by the digital slavery collections of the New York Historical Society. Even if they do not deal directly with the Dutch period it is seducing to look at them in connection with the certification in 1665 by Peter Stuyvesant of land grants to manumitted slaves, digitized at the NNI.

Chances for new research

In 2016 the exhibit Origins – Light on New York’s founders will start. At the accompanying website the portraits of some iconic Dutch figures look already at you. Let’s hope this occasion will be just another spur to delve into the early sources of New York’s history and of American colonial history in general. It would be most welcome if at least some scholars and in particular legal historians study aspects of that early history starting with the original sources and reading the Dutch of the founders. Shorto makes you see the people, hear the many languages, smell the filth of the colony and the fresh air of a green island, and takes you on a voyage back in history much in the style of a novel. Exactly his fluent style and evocation of people and events make me shiver sometimes when I feel his imagination gets too strong. L.J Wagenaar wrote in 1995 in his review of Hovy’s edition of Dutch ordinances for Ceylon these sources provided him with living images just like a novel.

Russell Shorto cannot be faulted for using with verve a style that might be termed journalistic. His books make you curious for more. He raises questions and new views, and books with these qualities are as important as book with answers. He challenges us to write as lively as he can, to do the hard work in searching, studying and analysing resources, formulating new theories and creating vast vistas we would not have dreamt of before.

Here I will honour Shorto by pointing in his way to a fact that might shed light on Stuyvesant. I am finishing this post at the Frisian island Terschelling, a familiar location for readers here. Near the village Midsland-Noord, a new part of the old village Midsland, is a spot with sands and heath called Stuyvesant, perhaps best translated as “moving sand”. Peter Stuyvesant came from a village in West-Frisia. Even without pursuing this toponym in full depth it hints at a certain quality of things eternally moving, partially hidden, partially blowing in your face, a presence which slip though your fingers like sand. My country can still boast a number of these moving sand regions as nowhere else in Europe. Just like New York Terschelling is blessed with a bay offering itself as a perfect natural harbor… There are limits to our knowledge, but they will move with every new question, with every new concept and view guiding our quest for perceiving the realities of the past. Legal sources might be tapped in ways yet untried, and historical sources can be read very differently when you put them side by side with the traces and sources of legal history.

A postscript

After finishing this post I felt slightly awkward about not mentioning any resources at the New York Public Library. For historical maps of early New York one can start with the online exhibition Mapping New York’s Shoreline, 1609-2009. Among the digital collections of the NYPL are early maps. The research guide Sea Blazers and Early Scriveners: The First Guide Books to New York City introduces you not only to these early guide books, but gives you also quick access to relevant literature in the holdings of the NYPL.

A new start in medieval canon law

Pope Boniface VIII knew exactly how important the choice of the right opening words was, especially for such publications as his decrees, encyclical letters and decretals. His decretal Rem non novam (Extrav. comm. 2.3.1) issued in 1303 gives its name to an event signalling a development that is partially new and partially a continuation, the restart at New Haven of the Stephan-Kuttner-Institute of Medieval Canon Law. An inaugural conference which takes its name from Boniface VIII’s decretal will be held on May 21 and 22, 2015. New Haven was home to the institute from 1964 to 1970 when Stephan Kuttner, its founder, hold a chair at Yale University. His institute has figured already several times at my blog. It seems right to bring in this post also to your attention the call for papers for the Fifteenth International Congress of Medieval Canon Law, to be held in Paris in July 2016. Both events are mentioned in the congress calendar of my blog, but in my view they merit more attention.

A new start

Banner rem non novam conference at New Haven

Stephan Kuttner (1907-1996) founded the Institute of Medieval Canon Law in 1955 at the Catholic University of America in Washington, D.C. In 1964 Kuttner moved to New Haven, and in 1970 he brought the institute to Berkeley, CA. In 1991 the institute moved officially to Germany. In 1996 the library arrived at the university of Munich. I was involved in the restart of the IMCL at Munich, in particular for creating a catalogue of the books in Kuttner’s library, a task done with the gracious support of the Monumenta Germaniae Historica. Elsewhere on this blog I wrote more about the creation and wanderings of the IMCL. In a way Its travels symbolise the crossing of borders necessary in studying the history of medieval canon law. Stephan Kuttner had to cross the borders of many countries, not only for his research but also to find a home for himself and his family. The IMCL is supported by an institution with a long Latin name, the Iuris Canonici Medii Aevi Consociatio (ICMAC) or International Society of Medieval Canon Law.

In 2013 the IMCL returned to the United States, back to New Haven, Connecticut. Yale University offers again hospitality to this institute, now at the Lillian Goldman Law Library. Apart from books the library of the IMCL contains several collections, especially some 8,000 offprints of scholarly articles, several hundred microfilms both from the original holdings of the IMCL and from scholars such as Gérard Fransen and Rudolf Weigand, and Kuttner’s vast scholarly correspondence. At the Yale Law Library efforts have started to make all these riches better accessible. At the Munich website you can access – in English or German – the library catalogue, the offprints catalogue and the database for twelfth-century decretals based on the research done by Walter Holtzmann and other scholars. To the items in the library and offprints catalogues classifications will be added. The program for the critical edition of texts in the field of medieval canon law will be continued. The Bulletin of Medieval Canon Law, since 1971 an independent offsping of Traditio, is now published by the Catholic University of America Press.

To celebrate the return of the IMCL to Yale University and to underline its importance a conference and grand opening will be held on May 21 and 22, 2015, with scholars coming from all over the world. Rem non novam nec insolitam aggredimur, “we tackle a thing that is not new or unusual”, but in fact harbouring the IMCL is special indeed. At its consecutive homes it always added a number of unparalleled collections to its scholarly surroundings. An example: at Munich I catalogued in 1997-1998 for the IMCL ten publications concerning the Spanish scholar Antonio Agustín. I was hard pressed to find any library worldwide with at least half of these publications. The great variety of resources now present at New Haven are already reflected in the abstracts of the papers to be presented at the May conference.

Reuniting scholars every four year

Banner ICMCL Paris 2016

With Gérard Fransen (Université Catholique de Louvain) and other scholars Stephan Kuttner organized a conference about medieval canon law in Brussels in 1958. A second conference held in Boston followed in 1963, and a third in Strasbourg followed in 1968. Since 1968 these congresses are held every fourth year, alternately organized east and west of the Atlantic Ocean. The Fifteenth International Congress of Medieval Canon Law will be held at Paris from July 17 to 23, 2016. The Institut d’Histoire du Droit of the Université Paris-II (Panthéon-Assas) will be the host of this congress, with support from the Université Paris-Sud and other well-known research institutes in Paris.

Over the years a division of the congress into six sections has been developed. For many years research concerning Gratian occupied a separate section or at the very least dominated the section on sources and texts. However, in view of the steady progress of the edition of the first version of Gratian’s canonical collection this theme will surely return. Proposals for papers can be sent to callforpapers@icmcl2016.org before September 30, 2015.

It might seem carrying coals to Newcastle, but it might be actually important to look a bit closer to the proposed sections for the 2016 congress at its bilingual website. Sources and texts fall into the first section, and canonical doctrine into a section of its own, fair enough. The third section is reserved for institutions, legislation and procedure. The application and influence of canon law make up the fourth section. Relationships between law and theology are the subject of the fifth section, and the last section will deal with schools and teaching of law.

In my view this division shows very convincingly that medieval canon law was not something static and monolithic, even when dealing with eternal values and returning problems for a still united Christendom. Canon law had to react when new laws appeared that might be in conflict with the norms and values it enshrined. Legal matters did touch upon Christian beliefs and vice versa. In the twelfth century it was still difficult to distinguish at all between canon law and theology, and it would be shortsighted to tear them apart too early. Canonical influences can clearly be detected in the procedures of courts, even in courts of civil law. In medieval universities schools rose which defended particular positions about points of law, and of course views changed or gained the upper hand or lost their power. Canon law depended to a certain extent on revived Roman law, but it could as well change the impact of Roman law.

Continuity and change

The original decretal of Boniface VIII deals with a matter that should attract closer attention in the year with celebrations for 800 years Magna Carta. The decretal’s first sentence was “Rem non novam aggredimur, neque viam insolitam ambulamus”, words slightly changed by the organizing committee in New Haven. While borrowing from the preface to Cod. 3.1.14, this pope did change canon law. His decretal was a stepping stone in anchoring norms for valid legal procedure, ensuring that defendants had the right to be brought before a court. The clause of Magna Carta claiming the right to appear before a judge of one’s equals had not yet taken this step forward of granting anyone the right to receive justice in a well-ordered way. Due process is a characteristic of legal procedure shaped to considerable extent by developments in medieval canon law.

Scholars studying medieval canon law have not confined themselves to reading and analyzing only legal texts. Randy Johannesen wrote about the contemporary surroundings and consequences of the decretal Rem novam [‘Cardinal Jean Lemoine’s gloss to Rem non novam and the reinstatement of the Colonna cardinals’, in: Proceedings of the eighth international congress of medieval canon law, Stanley Chodorow (ed.) (Città del Vaticano 1992) 309-320]. Tilmann Schmidt published Der Bonifaz-Prozess : Verfahren der Papstanklage in der Zeit Bonifaz’ VIII. und Clemens’ V (Cologne, etc., 1989) about the steps taken against Boniface VIII himself. These are just two examples, but much more can be added to them, as a search within for example the online bibliography of the Regesta Imperii at Mainz can quickly confirm. Looked at in vitro medieval canon law looses its significance for legal history at large, but time and again it is possible to show its many and surprising connections not only with all layers of medieval society, but also with legal developments right until our century.