So, yesterday was Guy Fawkes day, when English people celebrate a proud tradition of toffee apples and sausage the foiling of a 1605 plot to blow up the House of Lords with the King in it. Since the advent of Alan Moore’s comic V for Vendetta and the Wachowski Siblings film it inspired, Guy Fawkes masks have come to be associated with a variety of radical causes, including Anonymous and the various Occupy movements. Indeed last night, as I was leaving the library, I passed a really vocal band of protesters in Guy Fawkes masks, participating in the Dublin bit of the Million Mask March. Our version was less cataclysmic than the London event, with Protesters being followed by Gardaí on bicycles rather than meeting with police in riot gear.

It was too dark to read the masked marchers signs, but that was rather in keeping with the original Gunpowder Plot, unquestionably one of my favoriteof the gazillion Tudor-Stuart plots because a) my main man Edward Coke gets a starring role and b) fireworks and sausages. For my non-Guy Fawkes night observant audience, who may be unfamiliar with the details of the plot here’s the barebones outline: a group of English Catholics led by one Robert Catesby and dismayed by James VI and I’s Protestant rule decided to blow up the house of Lords  with the king and his heir apparent inside. Accordingly, Catesby had his servant, Guy Fawkes, lease a cellar adjoining Westminster and stored 36 barrels of gunpowder there. Unfortunately for the plotters, they sent a note to the Catholic Lord Monteagle warning him to avoid parliament. Monteagle passed the note onto Cecil who sent it on to James, who promptly “decoded” the threat and foiled the plot. The Privy Council leapt into action and began arresting, interrogating and torturing suspected plotters. (NB: As usual, when I talk about torture, I refer exclusively to torture for the purpose of extracting information, not the more unusual forms of public execution and punishment.) And this is where the plot gets really interesting: despite the best efforts of Edward Coke and his fellow inquisitors, Guy Fawkes, who initially gave his name as John Johnson (flimsiest pseudonym ever, huh?) remained remarkably cagey about the plotters’ plans for after killing off the monarch and most of the aristocrats. For the interrogators, desperate to implicate Henry Percy, the Catholic Earl of Northumberland in anything at all, this was a disappointment. For modern scholars, it provides a tantalizing mystery and a parallel to last night’s demonstrations. Until you start setting concrete post-explosion agendas, anything seems possible. And that’s a fascinating, and frightening enough idea for any early-November night. Plus, there’s the sausages.

For those interested in further reading on Guy Fawkes and the original Gunpowder Plot, there’s  Mark Nicholls’s excellent book, Investigating Gunpowder Plot (Manchester: Manchester UP, 1991), which does what it says on the tin and provides a concise account of the plot itself and James’s government’s reaction. There’s also, James Sharpe’s Remember, Remember: A Cultural History of Guy Fawkes Day (Cambridge, MA: Harvard UP, 2005), which examines plot itself and the subsequent tradition of observing Guy Fawkes night in England and beyond. Alternatively, if you want to test your knowledge of the Powder Plot, the BBC offers this charming web-quiz game.

Disclaimer: People with a more than a passing interest in American criminal law may want to skip the next two paragraphs. Alternatively, you can read the full decision, Justice Thomas’s concurring opinion and Justice Sotomayor’s consent here.

A few days ago, the US Supreme Court found with the government in the case of Chaidez v. United States. The case hinged on Roselva Chaidez’s claim that her conviction for mail fraud should be overturned because her defense attorney failed to warn her that entering a guilty plea would almost certainly result in her deportation. This, in turn, depends on the Court’s decision in Padilla v. Kentucky (2010) that defense attorneys have a sixth amdendment obligation to inform defendants where a deportation risk applies. The question that Chaidez raises is whether that finding should be applied retroactively to convictions that occurred before Padilla was decided.

In order to answer that question, Justices turn to the test established in Teague v. Lane (1989) and Strickland v. Washington (1984). The Strickland test asks whether a decision creates a new rule or applies a pre-existing principle. Where the Court finds that a decision created a new standard, it doesn’t apply retroactively to prior convictions; where the Courts merely amplifies a pre-existing principle, it does. One of the complicating factors in this test is the question of whether deportation is a “collateral consequence” of criminal prosecution. If your lawyer fails to warn you of the collateral consequences, (s)he’s not necessarily creating grounds for a mistrial. But the Supreme Court has been remarkably cagey about what does and does not constitute “collateral consequences.” Padilla established that at the very least deportation isn’t like any other collateral consequence. But, as the sharply differing interpretations of Justices Kagan and Sotomayor indicate, whether it ultimately is or is not a “collateral consequence” remains murkier.

And that’s where the seventeenth century comes in. As per the norm in this blog, I’m less interested in assessing the relative merits of Justice Kagan and Justice Sotomayor’s interpretations and more interested in exploring the ways law in the seventeenth-century shares concerns with law today. This, in fairness, has a lot to do with the fact that I tend to read Supreme Court decisions and Edward Coke’s famous commentary on Thomas de Littleton’s Tenures in short succession. Here’s what Coke has has to say about the rights of aliens (or strangers) born to hold property:

“[An alien born out of the king’s allegiance] cannot be heir…albeit he be born within lawful marriage. If made denizen by the king’s letters patent, yet he cannot inherit to his father or any other. But otherwise it is, if he be naturalized by act of parliament; for then he is not accounted in law an alien but a subject. But after one be made denizen, the issue that he has afterwards shall be heir to him, but no issue that he had before. If an alien comes into England and has issue two sons, these two sons are indigenae.” (The curious and/or nerdy can read this section of Coke easily in the ebook version of the 1830 Readable Edition of Coke on Littleton, 8a, here.)

I’ll admit the connection isn’t necessarily or immediately obvious. People who don’t live in the United States can still inherit land here (though occupying it may be a problem). And property isn’t as obviously important in contemporary American law as it was in Littleton’s fifteenth century or Coke’s seventeenth century. We no longer need forty pounds to serve on juries or vote. But legal milestones from Calvin’s case (1608) to the fourteenth amendment (1868) emphasize the importance of property to our conceptions of citizenship. Aside from all else, when the law acknowledges your right to own property, the inescapable corollary is that you own yourself.

So the prohibition against non-denizen aliens inheriting property in fact suggests a much greater exclusion from access to law. For aliens to lose their denizen status, and by extension for Ms. Chaidez or Mr. Padilla to face deportation, placed them outside Coke and Littleton’s sense of the law itself. For them, then, and their conception of the law, alienage (or deportation) would have been no more a corollary consequence than conviction itself.


Part of a page of the Corpus Juris Civilis

Part of a Page of the Geneva Bible

I’ve been comparing paratexts in sixteenth- and seventeenth-century editions of the Corpus Juris Civilis. I know — my life is just a whirlwind of glamor and excitement. In my defense, I was promised that this would be fun.

In the praefatio of his 1625 Geneva edition of the Corpus Iuris Civilis with glosses by Accursius (and such legal luminaries as Jacques Cujas and Pierre de Brosses), Theodore de Juges insists that readers will take great pleasure in comparing various glosses and emendations and scoffing at those that go wrong. It’s times like these that I’m grateful that the people I study a) were diligent enough to give me plenty to do, and b) lived in the dark days before there was regretsy. Because my definition of pleasure is apparently a lot narrower than de Juges’s was.

This preoccupation with the relative merits of various versions of the Corpus Iuris created certain typographical challenges: it’s composed of marginal glosses on marginal glosses, making the whole thing like a publisher’s version of a nesting doll. The effect is strikingly reminiscent of the 1560 Geneva Bible: the first printed English translation of the Bible to include extensive marginal glosses; the glosses are crammed into the margins there too. Put together these two texts are pretty striking “ocular proof” that reformers, whether legal or religious, had a similar approach to a kind of comparative hermeneutics in mind. You can really see the mutual influence of the mos Gallicum (French method) or humanist approach to civil law and humanist Biblical hermeneutics.

Are you sick of George Buchanan yet? No? Good. I’ll probably run out of things to say about him soonish, for now, but this is fun and whacky of tremendous historical significance. Did you know that George Buchanan had an apple shaped head? Apparently, this distinguished him from the Londoners of the time who generally had pear-shaped heads. At least according to Karl Pearson, who gave a Henderson Trust lecture at the University of Edinburgh on Buchanan’s skull and portraits in 1926. (Let’s all pause here to lament the fact that Pearson’s conclusions about head shapes and fruit predate the Ig Nobel Prizes. All joking aside, Pearson made important contributions to statisticians’ methodologies — unfortunately, they were all in service of eugenics.) It’s full of speculation about what George Buchanan actually looked like, the shape of his brainpan, and 20s’ English phobias about Scots from the wilds of what had, by 1926, started to become suburban Glasgow. If you happen to have an hour free (or, like me, have little to no social life) and access to a library that owns a copy of the published text, it’s worth it for the quaint prejudices of yore alone. (Not that the rest of Pearson’s prejudices were quaint, but this one seemed to amuse even him and potential apple-headedness doesn’t seem to have done Buchanan any lasting harm.)

And on an even more unrelated-to-legal-history note, happy birthday to my mother, whose head is perfectly proportioned in every way!

Continuing our spate of 100% torture-free, free-range and locally-sourced posts here at Stranger Born, I wanted to add some helpful notes about George Buchanan’s testimony and defenses before the inquisition. Interestingly, he wrote things down: his Portuguese inquisitors gave him paper. (They also seem to have returned even his suspicious books and allowed him access to his money — but back to the paper stuff cause it’s frankly more interesting.) But they rationed it very carefully because the fear was always that inquisitees would use what spare paper they could hoard to contact the outside world and, you know, get up to further heresy.

So the inquisition ran things a little like certain modern exams: they issued Buchanan pages with numbers already on them and he gave them back as he filled them, in the correct sequence. I don’t actually have any particularly profound reflections to offer on that comparison, but I will say that there’s something weirdly compelling about situations in which authorities are so aware of the power of paper. There’s something oddly possessive about this approach too. It wasn’t so much that the inquisitors didn’t want Buchanan to explicate his heretical thoughts, it’s that they didn’t want him to explicate them to anyone else. To link it back to the Fortescue thing (Okay, I lied, here’s the oblique torture reference): a class of professional, church- and university-educated judges was supposed to preside over heresy inquisitions not because of what they were trained to do but because of what they were trained to hear.

No seriously! We all need a palate cleanser after Fortescue’s lovingly detailed account of inquisitorial violence, and I’m happy to say I think I have one. I’ve been reading up on George Buchanan’s inquisition trial, which took place over the course of 1550-51, and you guys will be relieved to know it was torture free. Not only that, Buchanan even told jokes! Really.

Inquisition trials tended to be fishing expeditions for the accused, who didn’t, as a rule, know what they were being accused of. Accordingly, cannier (and luckier) defendants would talk around their sense of their misdeeds until something got a rise from inquisitors. In Buchanan’s case, this meant revisiting some unfortunate conversations he’d had in France. One of them was rather jokey:

French academic in conversation: Who first made monks?

Buchanan: The barber and the tailor.

Okay, I’ll admit everyone I’ve told this story to has stared at me blankly. I guess you kinda had to be there. Or trapped in a rare-book room for 6 hours straight imagining you were there. But I’m sure that the Lisbon inquisitors thought it was hilarious.

Because why should I be the only one with these mental images? Seriously though, I did want to say more about Fortescue’s descriptions of torture because there are points where the language (or at least Mulcaster’s translation, which I continue to employ because, well, I’m early modern like that) becomes so strange it’s almost comic:

“Some also have their mouthes so long gaged open till such aboundance of water bee powred in, that their belly swelleth like a hill or a tonne [Mulcaster adds “tonne”, for which no analogue appears in the Latin], to the intent that then the belly being piersed with some boring instrument [quo tunc venter ille, fossorio vel simili percussus instrumento], the water may issue & spout out thereat, and, at the mouth streamwise, not much unlike a Whale,” (In the 1616 Selden edition of De laudibus legum Angliae, which I’m currently working from, this passage appears at f46v-f47).

I know this is unpleasant stuff, but bear with me guys, there’s a point I swear: ‘percussus’ doesn’t have to mean pierced; it can simply mean beaten. Piercing people’s abdomens and infecting their organs with filthy water tended to result in near-certain death, which was not actually a goal during most inquisitorial torture sessions. So “beaten” is probably the correct usage. So likening the victim’s distended and pierced stomach to a tapped tun of wine or a whale’s blowhole is Mulcaster’s innovation. But why? What’s the good of making Fortescue’s already graphic imagery literally more visceral? Does it make the whole description more violent? Less credible? Both? For months I’ve been reading this passage semi-regularly in Mulcaster and in S. B. Chrimes’s much more accurate 1942 translation and I still can’t make up my mind.

And finally, since you’ve been such a lovely audience, here’s a picture of the sixteenth century inquisitorial “water cure” from the Praxis Rerum Criminalium (1554). Don’t say I never get you anything.

The New York Times just published Andrew Rosenthal’s blog post discussing a Romney campaign policy memo about the possibility of resuming waterboarding. The campaign (and the editorial) briefly revisited the arguments which lawyers for the Bush administration had made about why water boarding didn’t contravene international laws against torture. Since I had a nasty feeling that at some point early modern thought on torture would get extra topical, I’ve got some relevant bits at hand, and there are some striking parallels.

Sir John Fortescue, for example, had a LOT to say about the use of water-based torture techniques in France in his fifteenth century treatise De laudibus legum Angliae (‘On the Praise of English Law’). Many of his concerns about torture were strikingly familiar: Fortescue noted torture’s immorality (at least if the victim turned out to be innocent) as well as its inefficacy as an interrogation technique. But he also made a more unusual argument – torture was socially lowering for the torturer.

Fortescue was deeply distressed that French judges oversaw inquisitorial torture (here, ‘inquisitorial’ is used in contrast with ‘punitive,’ not as a reference to any of the religious inquisitions). He reasoned that just as God had demons, rather than angels, punish sinners, kings had commoners, rather than noblemen, as executioners – that one episode of Blackadder notwithstanding. It was unseemly, therefore, for judges of the French law to debase themselves doing something so immoral. It’s worth remembering here that Fortescue himself had been a judge in England before following the court of Henry VI into exile in France. The French judges on whose behalf he’s so uncomfortable were his civil law counterparts.

Fortescue’s social squeamishness about torture has a certain modern resonance, I think. International law has made torture illegal, but that has tended to mean that torture happens where we can’t see it, and that the people acquiring evidence via torture (or even “enhanced interrogation techniques”) are rarely the people who preside over tribunals. When Aub Ghraib gave modern-day inquisitorial torture a public face, it was the faces of reservist military police, not interrogators or intelligence officials, that we saw.

The continuing use of torture would almost certainly disquiet Fortescue, but not recognizing himself in any lowly or anonymous torturers would have offered him some consolation. I’m afraid it’s a kind of consolation, or at least a kind of mitigation with which many of us are becoming familiar.

Hey Blogger-nauts! It’s seems like an age since we started last considered the Supremes and SB 1070. Probably cause it’s been one. Unfortunately, things have been a little upheaval-y here at Stranger Born. (And many American students, I’ll admit I got a little carried away by the Affordable Care and Patient Protection part of this last SCOTUS term’s decisions.) But even though the health care decision was much higher profile, I think ultimately SB 1070 is just as interesting. For those of you not riveted by Supreme Court proceedings, the majority of the justices struck down most of the Arizona law, allowing only the section that makes it mandatory for Arizona law enforcement officers to check the immigration status of anyone they stop for a crime and suspect of being in the US illegally.

Justice Antonin Scalia has written a dissent, arguing that while control of naturalization clearly rests with Congress, individual states have a sovereign right to police their own borders; interestingly, Scalia, citing Gerald L. Neuman, argues that throughout the first century of American history, “the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases and (in the Southern States) freed blacks.” The case of free people of color (to try and provide the most accurate terminology while keeping up with a tremendously and understandably sensitive evolution of terms) strikes me as a particularly interesting one.

Before the passage of the fourteenth amendment (which, among other things, guaranteed citizenship to all persons born on US soil), freed slaves illuminated the difficulties in the development so brilliantly tracked by Keechang Kim (and discussed in my last post). If “alien or subject/citizen” had replaced “free man or slave” as the fundamental question underpinning Anglo-American approaches to a given individual’s legal rights, where did freed slaves fit in? The fact that Professor Neuman finds evidence in antebellum American legal thought to link states’ efforts to control the migration of freed slaves with efforts to control the movement of groups of aliens is pretty telling.

The tendency to link control of immigration with control of internal migration has been one of the things that’s interested me most about this case. Probably because it reminds me of the post-1603 naturalization rhetoric. For the sake of full disclosure, so did a cloud I saw the other day – I have kind of a one-track mind about the Jacobean succession at the minute. But anyway, the legal antiquarian Sir Henry Spelman fretted in his treatise “On the Union” that Scottish naturalization would involve radical and angry Scottish ministers flooding English parishes and benefices. He noted that ministers from poorer Northern counties were already invading relatively wealthy Southern parishes, which would be unable to support additional Scottish ecclesiastics.
For Spelman, at least as far as office seeking is concerned, Scots not being Norfolk-men seems to matter more than their being Scots. So I’m left wondering: do the legal labels of “citizen” and “alien” ever acquire take on any on-the-ground immediacy or are we always bound to supplant them with “person from my hometown” vs “person from far, far away.”