#legal history

[summercomfort]

in my pursuit of ever-increasingly niche comics, I drew a 13 page comic about Tape v Hurley, a court case about Chinese-American school segregation in 1885. The rest of the pages are after the readmore, as well as on AO3 here. More obsure Chinese American court case comics are there, as well.

Historical Notes

Mary and Joseph Tape were not born in America, but their names and identities were very much formed in America. Joseph Tape was born Jeu Dip in Guangdong, China, immigrated the America when he was twelve, and spent his teenage years working as a house servant in an Irish household. Mary arrived in America at the age of eleven, and was found and raised as Mary McGladery in a Protestant orphanage as the only Chinese child amongst ~80 children. Both Mary and Jeu spent their formative years amongst White Christian families, so when Jeu Dip and Mary married in 1875, little wonder that Jeu picked the English name of Joseph Tape -- Joseph to match with Mary, and the German last name Tape as a nod to his former name of Dip.

The Tape family lived about 14 blocks outside of Chinatown, in a primarily white neighborhood. They dressed in Western clothing, spoke English at home, and Mamie grew up playing with non-Chinese kids. Naturally, they wanted their children to attend the local elementary school, a mere 3 blocks from their home. The principal, Ms. Hurley, denied her entrance, claiming that she was “filthy and diseased.” At the time, there was no public school option for Chinese children -- the 1870 state law stipulated separate schools for “African and Indian children” only, not Chinese. The Tape family, with the help of the Chinese Six Companies, their church, and the Chinese consulate, decided to sue, claiming that the 1880 California school code guaranteed everyone a right to public education and that this was a violation of the 14th Amendment.

They won.

But this was 1885, three years after the passage of the Chinese Exclusion Act and six years before Plessy v Ferguson. Regardless of what the California Supreme Court might decide, public sentiment was on the side of the San Francisco school district. Determined to keep out this “invasion of Mongol barbarism”, the California State Legislature passed a law permitting separate schools for Chinese children, which then allowed Principal Hurley to reject Mamie Tape once more.

While Mamie was rejected from the Spring Valley Elementary School for being Chinese, she also had a hard time fitting in to the Chinese public school. The Chinese merchants saw Western education as something primarily for boys. (Their girl children learned from their mothers at home.) Mamie, a girl dressed in Western clothes, would have stood out like a sore thumb. The final panel of the comic was based on a photo from three years later, and even then, Mamie was the only girl.

Places where I fudged the history: Frank, Mamie’s younger brother, was actually six years old and should have been more present in the comic, but I wante to keep the focus on Mamie and Mary. Also, Mamie had actually shown up to her first day of school in Western clothes. An earlier draft of the comic had a separate arc involving Mamie feeling rejected at school and Mary buying her some Chinese clothes, but that got too long and complicated.

Much of this was drawn from Mae Ngai’s book about the Tape family and their experiences as 2nd and 3rd generation Chinese Americans, titled “The Lucky Ones.”

----------

Here is Mary Tape's letter to the San Francisco School Board, 1885:

1769 Green Street. San Francisco, April 8, 1885. To the Board of Education - Dear Sirs: I see that you are going to make all sorts of excuses to keep my child out off the Public schools. Dear sirs, Will you please to tell me! Is it a disgrace to be Born a Chinese? Didn’t God make us all!!! What right have you to bar my children out of the school because she is a chinese Decend. They is no other worldly reason that you could keep her out, except that. I suppose, you all goes to churches on Sundays! Do you call that a Christian act to compell my little children to go so far to a school that is made in purpose for them. My children don’t dress like the other Chinese. They look just as phunny amongst them as the Chinese dress in Chinese look amongst you Caucasians. Besides, if I had any wish to send them to a chinese school I could have sent them two years ago without going to all this trouble. You have expended a lot of the Public money foolishly, all because ofa one poor little Child. Her playmates is all Caucasians ever since she could toddle around. If she is good enough to play with them! Then is she not good enough to be in the same room and studie with them? You had better come and see for yourselves. See if the Tape’s is not same as other Caucasians, except in features. It seems no matter how a Chinese may live and dress so long as you know they Chinese. Then they are hated as one. There is not any right or justice for them. You have seen my husband and child. You told him it wasn’t Mamie Tape you object to. If it were not Mamie Tape you object to, then why didn’t you let her attend the school nearest her home! Instead of first making one pre tense Then another pretense of some kind to keep her out? It seems to me Mr. Moulder has a grudge against this Eight-year-old Mamie Tape. I know they is no other child I mean Chinese child! care to go to your public Chinese school. May you Mr. Moulder, never be persecuted like the way you have persecuted little Mamie Tape. Mamie Tape will never attend any of the Chinese schools of your making! Never!!! I will let the world see sir What justice there is When it is govern by the Race prejudice men! Just because she is of the Chinese decend, not because she don’t dress like you because she does. Just because she is descended of Chinese parents I guess she is more of a American then a good many of you that is going to prewent her being Educated. Mrs. M. Tape

[racefortheironthrone]

Why was queens pardoning prisoners seen as good? Like murders and sexual assaulter ect? Wouldn’t the public be against that?

This is an area where I think Foucault was actually right:

"...The public execution is to be understood not only as a judicial, but also as a political ritual. It belongs, even in minor cases, to the ceremonies by which power is manifested.... The public execution, then, has a juridico-political function. It is a ceremonial by which a momentarily injured sovereignty is reconstituted. It restores that sovereignty by manifesting it at its most spectacular. The public execution, however hasty and everyday, belongs to a whole series of great rituals in which power is eclipsed and restored (coronation, entry of the king into a conquered city, the submission of rebellious subjects); over and above the crime that has placed the sovereign in contempt, it deploys before all eyes an invincible force. Its aim is not so much to re-establish a balance as to bring into play, as its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength. Although redress of the private injury occasioned by the offence must be proportionate, although the sentence must be equitable, the punishment is carried out in such a way as to give a spectacle not of measure, but of imbalance and excess; in this liturgy of punishment, there must be an emphatic affirmation of power and of its intrinsic superiority. And this superiority is not simply that of right, but that of the physical strength of the sovereign beating down upon the body of his adversary and mastering it by breaking the law, the offender has touched the very person of the prince; and it is the prince - or at least those to whom he has delegated his force - who seizes upon the body of the condemned man and displays it marked, beaten, broken. The ceremony of punishment, then, is an exercise of 'terror'... The sovereign power that enjoined him to kill, and which through him did kill, was not present in him; it was not identified with his own ruthlessness. And it never appeared with more spectacular effect than when it interrupted the executioner's gesture with a letter of pardon...The sovereign was present at the execution not only as the power exacting the vengeance of the law, but as the power that could suspend both law and vengeance. He alone must remain master, he alone could wash away the offences committed on his person; although it is true that he delegated to the courts the task of exercising his power to dispense justice, he had not transfered it; he retained it in its entirety and he could suspend the sentence or increase it at will." (emphasis mine) Michel Foucault, Discipline and Punish, ch. 2

Unlike a modern conception of criminal justice, which is premised as an objective, rational, truth-seeking process in which precise identification of the right suspect and their level of guilt and the appropriate nature of their punishment, criminal justice systems in premodern Europe (although not necessarily limited to the same) were meant to emphasize the terrifying arbitrariness of royal power. With rituals put in place in order to ensure guilt through public (often coerced) confessions, the point wasn't whether the sheriff and the judge had "got the right man" or whether "the punishment fits the crime," but that the king could either enact public displays of bodily obliteration or public displays of mercy at their sole discretion.

In a sense, the pardoning of the guilty was a necessary justification for the deliberately disproportionate brutality of a pre-carceral system of punishment. This promoted the logic of submission to the guilty and innocent alike: if the king could sentence you to the ultimate physical dehumanization whether or not you were guilty, the only hope was either the mountain and forest refuge of the outlaw or the hope of a pardon as a quasi-divine act of unearned grace.

[haggishlyhagging]

Medieval Europe had originally practiced restitutive justice, a form of community customary law that functioned through arbitration with a goal of reconciliation. Because the objective was the restoration of communal peace, it was not advantageous to wipe out one's enemies or to inflict long-term punishment on them. In the effort to keep the community functioning as peacefully as possible, accusers were made responsible for their charges—a false accusation carried a heavy penalty. Early medieval justice, like justice in most primitive societies, was thus personal, requiring face-to-face accusation and judgment by a panel of one's neighbors.

In the twelfth century, however, a very different system of law developed on the continent. Based on Roman law, it stressed punitive justice, emphasizing fines, punishments, and the death penalty. Its goal was to protect and purify the state. Because this law was administered by the state rather than the community, it was impersonal law, with magistrates reporting to superiors in far-off towns and cities. Although this distancing allowed for a certain objectivity of judgment and in some cases provided for appeals, it interjected alien values into communal settlement customs. The judge became the initiator of charges, compiling evidence against suspects, interrogating the accused in secret, using torture when necessary to ascertain the truth, acting always in the name of the state. These changes have been described as "constituting a revolutionary change in legal methods and techniques of societal control."

In addition to the use of torture and impersonal, punitive law, I suggest a third factor of equal importance: whether or not an area still maintained the medieval lex talionis, the mandate that an accuser must prove his or her accusation or suffer the punishment that the defendant would have received. Because the legal penalty for witchcraft was death, this law acted as a powerful restraint on potential accusers. But in many parts of Europe by the sixteenth century, the personal justice of the lex talionis, carried out by the injured parties in a way that restored community relations, was being replaced by a more astract justice administered by state officials; now one could accuse with impunity. This shift rendered European justice more rational but less humane, and it opened the door wide to witchcraft accusations.

-Anne Barstow Llewelyn, Witchcraze

[newhistorybooks]

"This fantastic book, which traces the racial logics that have informed US legal decisions that undermine Puerto Rico's sovereignty, will have a tremendous impact across Puerto Rican studies, legal studies, American studies, Native American studies, and other fields."

[gawrkin]

I was today years old again when I had discovered that "Crime" was a very different thing from "Tort" when researching Celtic Law

[....]

(Source: Wikipedia)

[riesenfeldcenter]

The more I look at this frontispiece (from this 1684 account of the trial of King Charles I), the more the White Lotus Season 2 opening theme song intensifies in my head.

[scotianostra]

March 14th 1900 saw the birth of Scottish lawyer, Dame Margaret Kidd.

Margaret Henderson Kidd was a KC and a QC and during an eminent legal career, she racked up a number of pioneering ‘female firsts’ in what was then an entirely male dominated environment. Margaret became the first feminine member of the Scottish Bar in 1923, and uniquely, until 1948, she was its only female advocate. Margaret was also the first female lawyer to plead before the House of Lords and before a Select Committee of the House of Commons. In addition and significantly, Margaret became the first woman to become a King's Counsel in the United Kingdom. Furthermore, she was the first woman to officially occupy the post of Sheriff Principal for Dumfries and Galloway.

Kidd passed away on 22 March 1989 in Cambridge. A funeral service was held at the Canongate Kirk, Edinburgh. A eulogy by Lord Hope of Craighead concluded:

‘Her success was won by strength of character, courage and integrity and is a mark of her true qualities that, despite what might seem to be the revolutionary nature of her achievements, she always held the affection and respect of others.’

[gracehosborn]

… The [Law] Register [of Alexander Hamilton, 1795-1804] is the first document of its kind made available in printed form and copiously annotated. Some readers will use the Register for information on a particular case or cases or for bibliographical aid in exploring court records. Apart from such use the document in its totality uniquely illuminates the practice of law during a formative period in legal development and growth of the bar in the State of New York.

Source: Hamilton, Alexander. The Law Practice of Alexander Hamilton, Documents and Commentary: Vol. V Ed. Goebel, Julius Jr., Smith, Joseph H. Columbia University Press, 1981 pg. 8 [Link Here]

And one reader will use the Register to outline part of a historical fiction epic. Definitely the unconventional answer.

[confusedbyinterface]

Thinking about those early jurists from the Roman Republic, when "lawyer" wasn't really a job yet. They weren't getting paid for it they just liked writing legal documents enough they did it as a hobby.

[meerawrites]

Order in the court @ Colonial Williamsburg

[if-you-fan-a-fire]

"These pre-trial depositions do not necessarily reflect the evidence given by the witnesses at trial, nor is it safe to assume that they reflect the entirety of the evidence ultimately presented by the prosecution at trial. Many of them contain all manner of hearsay, character, and reputation evidence concerning accused and complainants alike, some of which may or may not have been admitted into evidence at trial.

Some historians express ambivalence regarding the probative value of depositions. Mindful of Carolyn Strange’s injunction against seeing court files as “textual productions of truth,” these depositions may be described as textual productions of allegations. As Edward Muir and Guido Ruggiero have opined, however, “not just any lie will do in testifying about a crime. Usually lies must have the ring of credibility.” The depositions do represent a form of first-person account by informants and witnesses of events that gave rise to the matters in the criminal courts. Indeed, John Beattie has characterized the depositions of victims and witnesses and the examinations of accused persons as “among the most useful” supplements to the indictments he was studying in his landmark study of crime and courts in seventeenth- and eighteenth-century England. And, for all their frailty, the depositions and the Statements of the Accused tend to be the only words in the file that tell us anything about what gave rise to the criminal prosecution before the court.

The information in these records is sketchy, but there can be no doubt that these texts are anything but disembodied legal discourse. Many voices in the court files are lay voices, the voices of ordinary people coming or being brought to law, as well as those of the NWMP , men of standing, such as Hudson’s Bay Company (HBC) men, other merchants, govern-ment men, and, of course, other lay witnesses, some of them less reluctant than others. The only professional experts to be found are the medical officers in the NWMP who, on occasion, offered opinion evidence as experts on Indian medicines and potions. Peter Hourie (who was allowed by Richardson to be qualified as an expert on the interpretation of certain Cree and Saulteaux words in Tom Lemac’s 1902 murder trial) and latterly veterinary surgeons, midwives, and medical doctors began to appear in the court records as well.

When they appeared in court, Aboriginal deponents and witnesses, as recently as 1902 in Tom Lemac’s murder trial, were also called upon to give forms of expert evidence (for example, on the entry and exit of bullets in the wounds on a dead body, or on the effect of alcohol on Indians), or to act as cultural interpreters of the ways and meanings of Indian gestures and forms of courtesy. The nature of the evidence in the court files suggests the mediated nature of law and law’s construction of experience. The mediation is multi-layered: complaints appear to have been made to a chief or husband, who then complained to the police or to a justice of the peace or stipendiary magistrate, after which an Information was taken and sworn. As to what is revealed about Aboriginal voices in the criminal law, it may be best to eschew the metaphors of a window or a camera in favour of a prism, which by definition contemplates a partial and refracted image of the experiences caught by the records. The images are partial, the stories fragmentary and incomplete; nevertheless, we can begin to draw some conclusions."

- Shelley A. M. Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870-1905. Vancouver: University of British Columbia Press for the Osgoode Society, 2012. p. 93-94.

[racefortheironthrone]

Is it true that in early medieval ages a (potentially minor ) way to determine local rights / law was the word of the oldest person in town? A sort of anectodal oral record in addition to any hard evidence they may have written

Not just during the Early Middle Ages!

I've written about this a bit before, but in English and Anglosphere common law, there is a concept called "time immemorial" that describes when a given property right or use-right began, and makes it very difficult to change or challenge rights that are considered that old.

The traditional medieval formulation for "time immemorial" was that a given property, right, usage, or benefit had existed since "Time whereof the Memory of Man runneth not to the contrary." And in a medieval court of law, the way this period was established was by calling the oldest man in the parish to testify as to their memory - no other records required.

The reason why this method of ascertainment was used is that everyone understood that they were living in a society in which literacy rates were low and written records were uncommon. Thus, more weight was placed on oral tradition and human memory, which was encouraged by certain cultural traditions that sought to encourage the development of childhood memories associated with property rights.

For example, the custom of "beating the bounds" was established in which local communities would parade around the boundaries of their parish every seven years to remind everyone of where the boundary markers were supposed to be; while community leaders were encouraged to participate to demonstrate social solidarity, particular attention was paid to the participation of young children - who were variously either made to beat boundary markers with switches, were beaten with switches at boundary markers, had their heads knocked against the boundary markers, or were made to put their bare bottoms on the boundary markers.

I guess the idea was that symbolic violence or humiliation were believed to be a spur to memory formation.

[tmarshconnors]

“The price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.”

Robert Houghwout Jackson was an American lawyer, jurist, and politician who served as an associate justice of the U.S. Supreme Court from 1941 until his death in 1954.

Born: 13 February 1892, Spring Creek Township, Pennsylvania, United States

Died: 9 October 1954 (age 62 years), Washington, D.C., United States

Supreme Court Justice: Robert H. Jackson served as an Associate Justice of the United States Supreme Court from 1941 to 1954. He was appointed by President Franklin D. Roosevelt.

Nuremberg Trials: Jackson is perhaps best known for his role as the chief United States prosecutor at the Nuremberg Trials after World War II. These trials were historic as they prosecuted major Nazi war criminals for crimes against humanity, war crimes, and genocide.

Legal Career: Before his appointment to the Supreme Court, Jackson held several significant positions, including Solicitor General (1938-1940) and Attorney General (1940-1941). His tenure in these roles was marked by his strong defense of New Deal legislation.

Influential Opinions: As a Supreme Court Justice, Jackson authored several important opinions. Notably, in West Virginia State Board of Education v. Barnette (1943), he wrote the majority opinion that declared it unconstitutional to force public school students to salute the flag, emphasizing the protection of individual rights against government mandates.

Literary Style: Jackson was renowned for his eloquent and clear writing style. His opinions are often cited for their literary quality and persuasive power. His legal writings continue to be studied and admired for their clarity and rhetorical force.

[newhistorybooks]

"The Boldt Decision was, to say the least, a watershed moment in the history of the Pacific Northwest and beyond. A half century on, Wilkinson has given us the inside story of this critical case: the labor that went into its manifestation, its implications for all who live in these places, and most importantly the Indigenous land, water, and more-than-human relations that are at its core. A must-read."

[demi-shoggoth]

2024 Reading Log, pt 5

21. Spirit Beings in European Folklore 3 by Benjamin Adamah. This volume covers monsters from mostly Slavic countries, ranging as far east as Siberian Russia and as far south as Georgia and Turkey. Some common themes of the monsters covered include vampires and revenants, many sorts of imps and familiars to steal from your neighbors with, and variations on classic Russian monsters like leshies, domovoi and rusulki. The longer articles on more studied and better known monsters, like the aforementioned domovoi, are the best writing in the series so far.

22. Afterlives of the Saints by Colin Dickey. Dickey has written some of my favorite books about paranormal culture, including The Unidentified and Ghostland, and so I wanted to give some of his earlier writing a try. This book is about saints and their cults, and how the cultural legacy of the saint doesn’t necessarily fit into either modern ideas of Christianity by the laity or orthodox Catholicism. No dog saints, sadly, but it does talk about Saint Foy, prone to violent pranks, artistic depictions of memento mori in Bartholomew and Mary Magdalene, the eroticism of art involving saints Agatha and Sebastian, and the ambivalent attitude towards scholarship embodied by saints like Gregory of Tours and Jerome. Highly recommended, especially for the state of reading I’ve found myself in lately—each chapter is relatively short and standalone, making it good for reading in pieces.

23. Crimes of the Centuries: The Cases that Changed Us by Amber Hunt. A true crime book based on a podcast? Alarm bells might be going off for some folks. But this book is a respectful look at the cases involved, especially since most of them date back several decades and are solved. The premise of the book is, theoretically, to look at crimes whose investigations, trials and legacies have had an impact on how law and society are conducted in the United States. In practice, I think it has mixed success, with the legacy material being mostly confined to a sidebar at the end of each chapter. The cases vary from ones that are common historical knowledge (the Salem Witch Trials, the Satanic Panic, the Lindbergh baby kidnapping) to ones that I hadn’t heard of but have left long shadows (like the Bath Schoolhouse bombing, the first attack on a public school). The book is fine; I enjoyed it well enough, but I’m probably never going to want to read it again.

24. The Unnatural Order of the Three Eyed Skull’s Field Guide, Vol. 4 by Andrew P. Barr. After a several year hiatus, more of Andrew Barr’s work has been collected. The death of the literary version of Barr is referred to in the foreword, and then it’s on to more monsters. This time around, the art is in full color and collected into three themes. The first chapter, The October People, includes various monsters that have been witnessed in the month leading up to Halloween, such as mutant pumpkin monsters, the candy ghoul, trick or treating aliens and even victims of the jack o’lantern virus. The second chapter details the host of slashers that attacked Camp Pine River, New Jersey, annually from 1980-89. The third chapter is a miscellany of fungal witches, monstrous invaders, cyclopean crabs and other beasties. The art is as excellent as the other three volumes.

25. Snakes in Myth, Magic and History by Diane Morgan. Another in the list of “fine, but not as good as I wanted it to be” books I’ve read this year. This look at the cultural and mythological history of snakes is pretty good, but not great. It spends a lot of page count on recounting news stories of people being bitten by dangerous snakes kept as pets. This is not a long book—190 pages including bibliography and index, and about 10 pages of that is taken up with these stories. The book could also have used another editing pass, as it makes references to other stories before they’ve been told to us. That being said, the more mythical and folkloric stuff is excellent. And I enjoy the author’s pleasant bafflement on how evolutionary biology and especially phylogenetics works. Reading the book also reminded me of a magical moment from my childhood (when a garter snake seemingly gave me a flower for my birthday), so that was much appreciated.

[lisareadsthings]

The original public purpose for a citizens’ militia was not some theoretical worry about standing armies or an idealized right of citizens’ militias to resist federal power. Instead the original purpose was a practical concern that the antislavery North would leave the South vulnerable to slave revolts. Scalia omits that rationale. And of course he has to. Because grounding the case for “self-defense” that satisfies the NRA’s permissiveness of shooting Black children walking home with Skittles, in an amendment designed to help slavers keep people in bondage, would be a little too on the nose. If Scalia told the truth about the original purpose of the Second Amendment, people might realize that the Second Amendment is illegitimate, or that looking to the original intentions of the people who wanted it is monstrous, or both.

Now, one can argue that the Second Amendment has evolved, past its purely evil original intent, to encompass a right to self-defense. I’d be willing to hear such an argument, because I don’t think the Constitution means only what slavers and colonizers wanted it to mean. But conservatives won’t make that argument. Here we see another example where making the intellectually stronger argument doesn’t take conservatives where they want to go. If they accept that the Second Amendment has evolved to protect a different right than was originally intended, then they’d have to admit that gun restrictions can also evolve to better protect our modern society.

Elie Mystal, Allow Me to Retort