The Author’s Corner with Carlton Larson

The Trials of AllegianceCarlton Larson is Professor of Law at University of California Davis School of Law. This interview is based on his new book, The Trials of Allegiance: Trials, Juries, and the American Revolution(Oxford University Press, 2019)

JF: What led you to write The Trials of Allegiance?

CL: The book’s origins date to the spring of 1996, when I was trying to develop a topic for my college senior thesis. I became fascinated by the “forgotten founder” James Wilson, one of America’s most eminent lawyers and a signer of the Declaration of Independence and the U.S. Constitution. I discovered that Wilson had defended men accused of treason against the state of Pennsylvania during the American Revolution, and this immediately sparked my interest – how did Americans come to prosecute other Americans for treason when the American Revolution was itself an act of treason against Great Britain? I thoroughly enjoyed writing the thesis, and I returned to the subject of treason several times as a law professor, now armed with a stronger understanding of law and the legal system. I began developing the material into a book in 2010. Now, twenty-three years after I began, the book is finally out.

JF: In two sentences, what is the argument of The Trials of Allegiance?

CL: The law of treason was central to the American Revolution, encompassing a host of issues from debates over the legitimacy of resistance activities to the treatment of Loyalists. Although a variety of institutions addressed potential disloyalty, ranging from the military to committees of safety, juries proved surprisingly lenient of accused traitors, reflecting a deep-seated belief that the death penalty was an inappropriate punishment for treason.

JF: Why do we need to read The Trials of Allegiance?

CL: The book emphasizes several aspects of the American Revolution that have often been overlooked.

First, the American Revolution was a violent, bloody civil war that pitted neighbors against neighbors and fathers against sons. Everyone was potentially a traitor, either to Great Britain or to the United States. The leaders of the Revolution were deeply concerned that internal enemies, loyal to Great Britain, were lurking in the background, waiting for just the right moment to strike. Inevitably, the desire to take pre-emptive action against these perceived enemies clashed with traditional notions of Anglo-American liberty. This book shows how the founding generation addressed the competing goals of liberty and national security during a time of national crisis and significant internal division.

Second, colonial Americans began accusing other Americans of “treason against America” long before the Declaration of Independence was signed. Indeed, in trials before committees of safety in 1775 and early 1776, persons were convicted of this offense and sentenced to imprisonment. These trials demonstrated the functional establishment of American sovereignty and independence and the development of an American national identity well before the formal assertion of independence.

Third, one would not expect that persons accused of loyalty to Great Britain would fare particularly well before American juries during the Revolution. But grand juries repeatedly refused to indict persons accused of treason; trial juries refused to convict; and, in the few cases in which they convicted, trial jurors sought clemency for the defendant. In so doing, the jurors consistently treated treason differently than other capital crimes. Persons accused of treason were not incorrigible criminals, but friends and neighbors who had chosen the opposite side in a political dispute and thus were capable of reformation and assimilation back into the community. Eventually, even people who had fled to Great Britain were welcomed back; only Benedict Arnold, the arch-traitor, remained beyond possibility of redemption.

Finally, there has been very little written about how criminal juries actually operated in revolutionary America. This book provides a careful look at what were perhaps the most important jury trials of the Revolution, where ordinary men would sit in judgment of the allegiance of their peers. The book explores who served on juries, and how defense counsel shaped the jury through the creative employment of peremptory challenges on the lines of religion, age, wealth, ethnicity, and militia service.

JF: When and why did you decide to become an American historian?

CL: When I was six years old, my family spent a summer in Massachusetts and we visited many historic sites associated with the American Revolution. I have been fascinated by American history ever since. I majored in American history in college, and, although I do not have a Ph.D. in history, I have continued to write and teach about legal history as a professor at the UC Davis School of Law.

JF: What is your next project?

CL: My next project is a trade book with Ecco Press, tentatively titled Treason: A Citizen’s Guide to the Law. This book carries the story of treason forward from where The Trials of Allegiance leaves off. Look for it in 2020!

JF: Thanks, Carlton!

The Author’s Corner with Kate Brown

brownKate Brown is Assistant Professor of Political Science at Huntington University. This interview is based on her new book, Alexander Hamilton and the Development of American Law (University Press of Kansas, 2017).

JF: What led you to write Alexander Hamilton and the Development of American Law?\

KB: I have been fascinated with Alexander Hamilton since high school—long before Hamilton, the musical, made him a household name—so it was pretty much guaranteed that Hamilton would be a primary subject for my first book.  When I realized in graduate school that historians virtually ignore the legal side of Alexander Hamilton’s career—that is, Hamilton as legal and constitutional theorist, Hamilton as an in-demand lawyer, Hamilton’s thriving New York legal practice—I knew that I wanted to explore his accomplishments through the lens of the law.  This book does just that.

JF: In two sentences, what is the argument of Alexander Hamilton and the Development of American Law?

KB: 1) We are familiar with Hamilton’s political efforts to shape policy in the young republic; my research demonstrates how Hamilton used common law and constitutional law, more so than politics, to successfully accomplish his policy goals and statecraft.  (Each chapter details a particular Hamiltonian policy goal and the legal toolbox Hamilton used to accomplish it.)

 2) Alexander Hamilton’s legal legacy—that is, his influence on the jurisprudence of federalism, individual rights, judicial and executive power—is far-reaching and foundational, extending well into the nineteenth and occasionally the twentieth centuries.  For these reasons, Hamilton should be considered a true founding father of American law.  

JF: Why do we need to read Alexander Hamilton and the Development of American Law? 

KB: My insights into the ways Hamilton used law to accomplish his policy goals—achieving unity through union, creating economic prosperity and public creditworthiness, encouraging commerce and manufacturing, and developing judicial and executive authority, to name a few—offer a wholly novel perspective on Hamilton. Scholars and biographers before me had largely ignored or written off Hamilton’s legal career, yet I demonstrate that not only was his legal practice influential, but Hamilton’s legal legacy lasted for decades after his death.  By writing this analytical biography through the lens of law, I offer a completely unique perspective and analysis of an otherwise well-known founding statesman.

 (A quick note:  you do not have to be familiar with law or be a lawyer to understand Hamilton’s legal arguments and the legal history I’m writing here.  I minimize jargon, I explain my arguments in terms that do not require legalese, and I always emphasize the big, important points about Hamilton’s legal legacy over any legal minutiae.) 

JF: When and why did you decide to become an American historian? 

KB: I caught the early-republic bug in high school, when I found Hamilton to be so remarkable (and seemingly uncelebrated, as compared to his contemporaries like Washington and Jefferson).  I did not formally decide to make history my profession, however, until I decided to go back to graduate school after a first career in corporate America. But once I decided to become a historian, there was no doubt that I would study American history, with a sub-specialty in legal history. Not only is American history fascinating, but its continued relevance for our informed understanding of twenty-first century politics and current events makes the study of history an indispensable public service. 

JF: What is your next project? 

KB: When researching Alexander Hamilton and the Development of American Law, I noticed that Hamilton kept making appearances in this important, and really unique, appellate court in New York state:  the Court for the Correction of Errors.  This court was so distinctive because it was the highest court in the state—trumping New York’s Supreme Court, and deciding hugely important cases dealing with matters relating to commerce, marine insurance, federalism, and individual rights—and yet it was consciously modelled after England’s House of Lords. The Court of Errors (as contemporaries called it) mixed the judicial and legislative powers inextricably—both the highest judges in the state and the state senators presided over the Court of Errors making judicial decisions.  And so, for almost 70 years, this court shattered norms about the separation of powers—and that is one reason I am so intrigued by it—but it also attracted the best legal talent in the early republic (including, of course, Hamilton).  The Court of Errors was a unique venue for lawyerly talent, as well as a recruiting ground of sorts for the U.S. Supreme Court.  Despite all of this, scholars have ignored the court and its influence on judicial power in the early republic.  I intend to change that by writing an institutional biography of the court, the legal professionals arguing in and presiding over it, and its formidable impact on early-republic jurisprudence

JF: Thanks, Kate!

 

 

Not Everyone Who Studies the Past is a Historian

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A couple of weeks ago Stanford history professor Jonathan Gienapp published a critique of the so-called “originalist” approach to the interpretation of the U.S. Constitution.  Gienapp showed the difference between the ways historians think about the Constitution and the ways judges and lawyers think about it.

Georgetown law professor Randy Barrett responded to Gienapp’s piece here.

And now Gienapp has responded to Barrett with another lengthy post that is, once again, worth reading for it’s articulation of how historians approach the past, particularly the founding era. It is a great reminder that not everyone who studies the past is a historian and it returns to the old debate between the past as “usable” and the past as a “foreign country.”

Here is just a small taste of his piece at Process blog: “Knowing How Vs. Knowing That: Navigating the Past.”

…in discussing the art of thinking historically, I talked in my initial essay about how historians take up residence with the natives of the past, how they immerse themselves in their subjects’ logics and assumptions in order to think as they once did. The reason why is something of an article of faith in the profession: that the past is a foreign country. As Rhys Isaac once persuasively put it, “Whether one moves away from oneself in cultural space or in historical time, one does not go far before one is in a world where the taken-for-granted must cease to be so. Translation then becomes necessary. Ways must be found of attaining an understanding of the meanings that the inhabitants of other worlds have given to their own everyday customs.”[6] The past, in others words, comes to us encoded in a foreign language. If we wish to understand the original meaning of historical texts, we have to translate them. This is what historians mean when they say that understanding historical texts in their original forms requires restoring them to their original historical context.

Here is where things often seem to get stuck, though—because originalists, Professor Barnett included, seem to agree with these claims. They recognize that meaning needs to be contextualized and that the past is different than the present. Originalism would not make much sense unless followers assumed that the Constitution means something different now than at the time of its inception. So we need to be especially clear on how historical practice and Originalism 2.0 actually diverge. The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.”[7] Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. The most important scholarship on Revolutionary America has pierced the veneer of familiarity that unites the present and this historical period and shown that the Revolutionaries’ guiding assumptions were strikingly different than our own. As Gordon Wood so revealingly put it to begin his immensely influential, The Creation of the American Republic, “As I explored [the revolutionaries’]pattern of beliefs, it became evident that” the prevailing interpretive approach to the American Founding had “been deeply ahistorical, there had been too little sense of the irretrievability and differentness of the eighteenth-century world.”[8] Even though the Revolutionaries used words and ideas that bore a superficial resemblance to our own, beneath this seeming familiarity lay a largely alien conceptual world that, Wood showed, had to be reconstructed in its totality from within.

Read the entire piece here.

Camden, New Jersey Police and American History

I love this story.  It encourages me to see history informing law enforcement in one of the most crime-ridden cities in the United States.  There may yet be hope for the humanities!

Here is a taste from a news story that appeared earlier this month at NJ.Com

Thursday morning was a change of pace for William Stuart.
While five weeks prior, the Camden County Police Officer was rushing through the halls of a shuttered Catholic school in Somerdale pursuing an active shooter during a drilling exercise, by 9 a.m. Thursday, he found himself in a much different kind of classroom.
Stuart was one of 50 department officers who crossed the bridge into Philadelphia to brush up on the backbone of American history at the National Constitution Center.
By the end of the week, all of the city’s 372 current officers and recruits in training will have cycled through the Center’s “Policing in a More Perfect Union” training module, which focuses on the role of the Bill of Rights in the American justice system and explores the history of policing in communities.
Chief Scott Thomson said he was drawn to the program after talking with Philadelphia Police Commissioner Charles Ramsey, who collaborated with the Constitution Center to cultivate the curriculum and launch the program in March.
“I wanted every one of our officers to have a better understanding of justice and fairness,” said Thomson.
The core concepts are driven home through a morning that begins with a tour of the center’s exhibits and presentations, delving into the roots of the Bill of Rights’ along with the evolution of law enforcement in American history. It wraps up with frank, open discussions about current perceptions of police both among the officers and in small groups with high school students from Philadelphia.
“The officers have already sworn to uphold the Constitution, they know this stuff,” said Kerry Sautner, the vice president of visitor experience and education at the National Constitution Center. She said the program aims to put a historical framework around the issues officers wrestle with daily.
“This is foundatinal, what they’re dealing with everyday is practical,” she said.
Camden County is only the third department to cycle its officers through the Policing in a More Perfect Union program — officers from Newport News, Virginia took advantage of it following Philadelphia’s recruits — but the results so far have been encouraging, said Sautner.
Officer Stuart said the historical perspective the program helped drive home the reality that current controversies surrounding police work are far from new. It showed him that conflicts are often sparked when police are caught between adapting to cultural shifts while enforcing laws that haven’t caught up to the times.
“It’s not new. It’s the exact same issues they experienced in the 1700s,” said Stuart. “We forget we’ve already done this and dealt with these issues throughout history.”
Chief Thomson said he wanted officers to be able understand the historical context of policing in minority communities, like how officers were responsible for enforcing fugitive slave laws in the 19th century and Jim Crow laws in the 20th, and how those roles have fueled a systemic distrust of law enforcement.
“40 years ago, we were on the wrong side of many issues,” said Thomson. Officers today may not have a hand in those wrongs, he said, but they deal with their social repercussions daily.