M.H. Hoeflich, Notes from the Commonplace Book of a Legal Antiquarian

Michael Hoeflich holds degrees from Haverford College, Cambridge University and Yale Law School. He taught at the University of Illinois from 1980-1988, was dean of the Syracuse University College of Law from 1988-1994, and was dean at the University of Kansas School of Law from 1994-2000. Hoeflich is the author or editor of more than 15 books and 115 articles. 

M.H. Hoeflich, Notes from the Commonplace Book of a Legal Antiquarian (Clark, NJ: Talbot Publishing, 2021).

Everybody who loves printed books can remember one special moment when that love commenced—or perhaps a time when an affinity for books, already germinating, began to reveal itself definitively. For Mike Hoeflich, the revelation came when a beloved college professor let him examine a 17th-century volume of papal biographies. “In that moment,” he writes, “I was reborn as a bibliophile and collector of texts” (p. x).Image of Hoeflich book cover.

Few people can afford early modern books, but those of us who want to read will find a way to do so—and that is true of any category of print titles. Libraries and museums have existed since Classical times; there is a robust, mostly affordable market for out-of-print books; and of course there are now many titles, some of great age, available in one or another of the e-book formats, including hand-held book simulacra. But there is a problem that has been affecting all readers since the days of papyrus scrolls, and that certainly affects us all in these days of information overload. That is, how to remember what has been read?

Some of us try to remember by means of underlining, marginal notes, or highlighting. Some people may even construct “Memory Palaces.” But early modern readers—indeed, many readers well into the 19th century—preserved their reading pleasures by means of Commonplace Books. These were notebooks into which a reader copied excerpts of personal significance. These were typically chosen for their wisdom of sentiment, beauty of language, or pertinence to whatever the copier was thinking or doing. One could navigate one’s Commonplace Book(s) by means of mnemonic devices, personal indexes, marginal notations, or simply by reading over the entries at intervals. What remained when all the copying was done was a very personal document, from the physical look of the notebook, to the character of the handwriting, to the nature of the excerpts. All of these factors reflect the personality of the compiler across a span of time.

Mike Hoeflich, in this latest of his many books, has offered his readers—his friends, as he graciously calls us—a selection of a dozen or so excerpts from his Commonplace collection. One of the first (pp. 3-6) is by a poet styling himself George Coleman the Younger. His poem, titled “A Reckoning with Time,” was published in 1814. One stanza stands out to this reader:

For thou hast made me gaily tough;
Inured me to each day that’s rough,
In hopes of calm tomorrow; —
And when, old Mower of us all!
Beneath thy sweeping scythe I fall,
Some few dear friends will sorrow.

Another entry from Hoeflich’s books is an eighteenth-century essay (pp. 12-21) on “The Antiquity of the Laws of This Island,” a somewhat breathless romp through the Laws of the Britons, Romans, Saxons, Danes, and Normans. The author, like any good Enlightenment historian, seems to have made some things up as he went along. He concludes, though, that “the British laws were altered by the Romans; theirs by the Saxons; and theirs again much altered by the Danes, which mingled with some points of the Saxon law, and fewer of the Norman law, is the common law now in use” (p. 19).

An excerpt from The Comic Blackstone of 1846 (p. 37) also harks back to early medieval times, when the Court of Common Pleas had no fixed location. At that time, says the author, the court “had a van to carry the barristers’ bench, the judge’s easy chair, and the rostrum for the witnesses, from place to place; but when it [the court] became fixed, it made it worth the while of respectable people to study the law, which was not the case when the legal profession was nothing but a strolling company.”
Hoeflich also treats us to a look (pp. 25-27) at the menu of the Austin Law Club, which met at the Parker House in Boston on April 21, 1893. The Austin Law Club, he tells us, was an organization of Harvard Law graduates. Looking over the seven courses they consumed, it is clear that they had not taken vows looking toward ascetic or self-denying lives.

All in all, Mike Hoeflich has given us notable samples of his reading tastes down through the years. His choices in this collection are by turns witty, self-deprecating, satirical, and pointed. It is a pleasure to see, in this way, a lifetime’s reading in miniature. Mike’s Notes will surely please the strolling company of legal historians.

PMP


In Memory of David Ernest Alsobrook

David Ernest Alsobrook (1946-2021)

It is with great sadness that we announce the death of David E. Alsobrook at the age of seventy-five. A contributor to Litera Scripta, David was a consummate Public Historian. In addition to working as a supervising archivist at the Jimmy Carter Presidential Library in Atlanta, he was the founding director, successively, of the George H.W. Bush Presidential Library and Museum and the William J. Clinton Presidential Library and Museum. Photograph of David E. Alsobrook signing his book.Just last year, David reflected upon his long archival experience in a book titled Presidential Archivist: A Memoir (Mercer University Press, 2020). After retiring from the National Archives and Records Administration, David served as director of the Museum of Mobile from 2007 until his retirement in 2015.

David was a prominent Alabama historian. His finished his doctorate in history at Auburn in 1983. His dissertation “Alabama’s Port City: Mobile in the Progressive Era, 1896-1917” remains a fine example of urban history. His study Southside: Eufaula’s Cotton Mill Village and Its People, 1890-1945 (Mercer University Press, 2017) chronicled the difficult lives of millworkers while giving a human face to life and labor in a company town.

Such scholarship did not go unnoticed. David’s 2004 Alabama Review article on Mobile’s 1902 street car boycott won the Alabama Historical Association’s Milo B. Howard Award. His book Southside won the Association’s Clinton Jackson Coley book award in 2018. That year (2017-2018) he served as president of the Alabama Historical Association.

In addition to all of the above, David Alsobrook was the embodiment of what it means to be an Auburn person. As the first graduate of Auburn’s storied Archival Training Program, he sought to live up to Dr. George Petrie’s “Auburn Creed,” which begins: “I believe that this is a practical world and that I can count only on what I earn. Therefore, I believe in work, hard work.” On the other hand, several people who have commented on David’s passing remarked upon his affability and kindness.

See below for his Litera Scripta post titled “Jessie Gillis Parish: A Woman Voter of Barbour County, Alabama.”

 

Oliver Wendell Holmes, Jr., The Common Law

The following is another post derived from the Bounds Law Library’s recently acquired A.S. Williams III Collection.

Oliver Wendell Holmes, Jr, The Common Law (Boston: Little, Brown and Company, 1881). This is a first edition of this famous treatise. It is bound in dull red buckram, in excellent condition; the corners are essentially unbumped. The front pastedown endsheet has a bookplate of Robert B. Nason, an arte nouveau design of a woman standing in front of a crescent moon with a shield bearing the Harvard motto, “Veritas.”

Image of bookplate from The Common Law
Bookplate, The Common Law

The recto of the front free endsheet has a sticker, lower left, for “G.A. Jackson Law Books, 8 Pemberton Square Boston, Mass.” Also on this recto, penciled notes: “1st ed. of important Legal Treatise $450.00” followed by “28-6-1910.” No marks inside the text.

Oliver Wendell Holmes, Jr. (1841-1935) is one of our most famous Supreme Court justices. Portrait of Oliver Wendell HolmesHe served on the high court from 1902-1932, and secured renown as a defender of free speech; see his dissent in Abrams v. United States (250 U.S. 616, (1919). Holmes was likewise willing to allow states considerable leeway in their regulation of economic interests and public welfare.[1] Long-lived, handsome, and quotable by the yard, Holmes was for many people the very model of a Supreme Court justice. He is much less well-known as a legal scholar, having written only one original book, The Common Law.[2] But that one book, published when he was forty, has been to the study of jurisprudence what his opinions were to the evolution of case law.

The first page of Holmes’ treatise contains a line that has gone ringing down the years: “The life of the law has not been logic; it has been experience.” The rest of The Common Law contained Holmes’ brilliant if difficult historical treatments of crime, torts, property and contracts, all of which tend to show that the evolution of law has been in response to the pressures exerted by human beliefs, desires, and doings. But that one line was memorable and utterly revolutionary. For centuries—certainly since the decisions of the seventeenth-century jurist, parliamentarian and treatise-writer Edward Coke—learned lawyers had spoken of the law as a “science of reason,” a system of logic that has, from time to time, become entangled in scholars’ perceptions of Natural Law—law as derived from the law of God. Under this system, jurists applied their logical tools, mindful of the authority of precedents, and “discovered” what the law had to say. Holmes was having nothing to do with the circular logic of such Formalism. Rather he asserted, by implication and directly, that “judges make law.”[3]Image of title page from The Common Law

Indeed, The Common Law applied the philosophical principles associated with Pragmatism, and brought them into use within the halls of the legal academy; he also invited them to sit with him on the Bench. His writings and jurisprudence combined were precursors of what is known as Legal Realism, described by Judge Richard Posner as “the most influential school of twentieth-century American legal thought and practice.” In his book The Essential Holmes, Posner notes Holmes’ early exposure to the writings of English thinkers such as John Stuart Mill and James Fitzjames Stephen. He then declares that their ideas, operating through Holmes, “helped to make American thought more cosmopolitan and (paradoxically) to liberate American jurisprudential thought from slavish adherence to English models.”[4]  And to think—Holmes had written The Common Law before he ever sat as a judge!

Holmes’ biographers have made their bows to The Common Law. Liva Baker’s The Justice from Beacon Hill devoted a chapter to it, asserting that Holmes had “given the law a vitality it never before had possessed.”[5] More recently Stephen Budiansky has written that The Common Law was a “work of profound learning, and revolutionary, even shocking implications.”[6]Photo image of Oliver Wendell Holmes

The magisterial Mark DeWolfe Howe, on the other hand, viewed The Common Law as a very successful tour-de-force. He admits that it “was something far more important than a compendium of insights.” But as he considered Holmes’ transition from practitioner to Harvard law professor to judge of the Supreme Judicial Court of Massachusetts— all of which he accomplished in two years’ time, from 1881 to 1882—Howe concluded that “other traits of intellect and character than those which gave that book its power would have been called upon to produce a systematic work on legal history or legal philosophy.”

It may be worth noting that the status of Holmes’ treatise has been confirmed by the recent publication of Steven Alan Childress’ Annotated Common Law (New Orleans: Quid Pro Law Books, 2010). If great books initiate conversations—between readers, between authors and readers, between generations—The Common Law has “been in that number” for a long time.

PMP

[1] For the negative side of Holmes’ willingness to let states control public policy without interference on the grounds of “due process,” see Holmes’ opinion in Buck v. Bell (274 U.S. 200, 1927) , in which he upheld Virginia’s mandatory sterilization of the “unfit.”

[2] Holmes’ speeches and essays were also published. See Holmes, Collected Legal Papers (New York: Harcourt, Brace, and Co., 1921).

[3] Holmes’ comment on judge-made law is quoted in Stephen Budiansky, Oliver Wendell Holmes: A Life in War, Law, and Ideas (New York: W.W. Norton & Company, 2019), 177.

[4] Richard A. Posner, editor, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions . . . (Chicago: University of Chicago Press, 1992), xi, xx.

[5] Liva Baker, The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: Harper Collins, 1991), 246-270, quoted passage at 258.

[6] Budiansky, op. cit., 10.

[7] Mark DeWolfe Howe, Justice Holmes: The Proving Years, 1870-1882 (Cambridge: Belknap Press of Harvard University Press, 1963), 280-283, quoted passages on 282.

In Memory of Marjorie Fine Knowles

Marjorie Fine Knowles, the first female dean of a Georgia law school and a nationally recognized advocate for women’s rights, died on Friday September 24. She was 82 years old.Image of Marjorie Fine Knowles

A New York City native who graduated from Smith College and Harvard Law School, Knowles served as an Assistant U.S. Attorney in the Southern District of New York and with the criminal section of the Manhattan District Attorney’s office. In 1970 she became executive director of Joint Foundation Support, “one of the first foundations to support groups involved in grassroots organizing to combat racism and poverty in the Deep South.”[1] In 1972 she married Tuscaloosa civil rights attorney Ralph Knowles,[2] whom she had met at Selma.

That year, Knowles became one of the first women to join the faculty of the UA School of Law. During her career at the School of Law, she was a role model and advocate for women and women’s rights on the campus and in the larger world. Dean Mark Brandon (UA Law, Class of 1978) was her student. He remembers her as an outstanding professor:

“Marjorie was a rigorous teacher (I know from personal experience).  Her courses ranged widely from evidence, to sports law, to conflicts, and to sex-based discrimination.  Her most important contributions, however, were to the causes of civil rights and especially the status of women.  Her influence was national, but she also had a profound impact ‘at home.’  In her time at Alabama, she helped to change the face and culture of the Law School, as the number of women studying law here increased almost six-fold.”[3]

Dean Knowles wrote many law review articles and other writings, but the one that probably had the most impact in Alabama was her Legal Status of Women in Alabama: A Crazy Quilt, 29 Alabama Law Review 427-516 (1978).[4] This pioneering work of scholarship was “the first comprehensive analysis of Alabama’s statutes affecting women”; moreover the article “became a blueprint for removing sexist provisions from the Alabama Code.”[5]

Dean Knowles served at the Law School from 1972 to 1978, when she took a leave of absence to serve the Carter administration, first as an assistant general counsel in the Department of Health, Education, and Welfare, and “soon afterwards as the first Inspector General of the U.S. Department of Labor.”[6]

In 1980 she and her family returned to Alabama, where they remained until 1986, when she accepted the Deanship of the Georgia State University’s College of Law. She was only the seventeenth woman to sit as Dean of a law school in the history of the United States. Knowles’ deanship lasted five years, during which Georgia State’s law school earned its accreditation from the American Bar Association—a landmark achievement. She continued to teach at Georgia State until 2011, and continued to be active in good causes thereafter.

During a very active career as a professor and administrator, Marjorie Fine Knowles took on many challenges. She was a key professor in developing a Women’s Studies curriculum at the University of Alabama, for example. She was an influential advocate, nationally, of the Equal Rights Amendment; and in 1975 she helped finance Gloria Steinem’s Ms. Magazine. She served on many boards and won an assortment of honors. Among the latter was her 1975 inclusion among the Ten Outstanding Young Women in America by the National Federation of Business and Professional Women. Georgia State University has honored Marjorie and Ralph Knowles by naming the College of Law’s Conference Center after them.

Marjorie Fine Knowles will be remembered warmly and respectfully for her excellence and impact as a teacher, administrator, scholar, and advocate for all that is best in us.

PMP

 

[1] This quote and much of the information above and below can be found in Dean Marjorie Fines Knowles’ obituary, which can be accessed at Marjorie Knowles Obituary – Sandy Springs, GA (dignitymemorial.com).

[2] Ralph Irving Knowles, Jr. (1945-2016) was a member of the Class of 1969, University of Alabama School of Law.

[3] Email from Dean Mark Brandon to author, October 4, 2021. The increase in women’s enrollment during one three-year period, according to Dean Knowles’ obituary, was from 13 to 70.

[4] She followed up the 1978 article with her Legal Status of Women in Alabama, II: A Crazy Quilt Restitched 33 Alabama law Review 375-406 (1982).

[5] This quote is from Dean Knowles obituary; see supra, note 1.

[6] Ibid.

The Williams Collection of Historic Law Books

The following is the first of several posts that will explore selected titles from a collection of law and law-related books donated by the family of A.S. Williams, III. The Williams Historic Law Book Collection consists of seventy volumes that date from the eighteenth, nineteenth, and early twentieth centuries. They are in their original bindings, and many of them have penciled notes on the margins and flyleaves.

These lovely books were donated to the Bounds Law Library by the family of Birmingham insurance executive and noted bibliophile A.S. Williams, III. Williams’ magnificent collection of more than “20,000 volumes and pamphlets published between the late-seventeenth century and 2009” is a major holding of the Hoole Special Collections Library.[1] The family’s gift to the Bounds Law Library consists, as noted above, of a legal collection assembled by Williams’ father-in-law, the late G.G.W. Hoover. Hoover was himself an insurance executive and a man who had a rare appreciation of the printed sources of the common law.[2] A few titles from this collection are briefly described below, in alphabetical order by author.

James Barr Ames, A Selection of Cases on Pleading at Common Law (Cambridge, MA: John Wilson & Son, 1875). This is one of the first “casebooks” produced at Harvard during the deanship of Christopher Columbus Langdell. Ames (1846-1910) was one Harvard’s leading professors.[3] The theory behind the “casebook method” was that students, by reading properly arranged cases, would be able to deduce the principles and rules of law for themselves. Since the late 19th century—indeed, today—the casebook method has prevailed in American law schools. This copy of Ames contains numerous (and voluminous) marginal notes in a late 19th-century hand.

Charles W. Bacon, et al., The American Plan of Government, 4th edition (New York: G.P. Putnam’s Sons, 1921). Bacon (1856-1938)[4] was a New York lawyer and an instructor in Political Science at the City College of New York.[5] He authored several works on the U.S. Constitution.

This volume contains notes on the front pastedown leaf and front free flyleaf, as well as underlining and other annotations in the text. These are in the hand of the book’s early owner William H. Wilson. One of Wilson’s flyleaf notes tells us that the book was purchased on February 6, 1952, at Claitor’s Book Store in Baton Rouge, Louisiana. Claitor’s is a longstanding bookstore, publishing house, and landmark of Louisiana’s world of books. Several of the titles in Bounds’ Williams Collection bear Claitor’s distinctive blue and white sticker.

James M. Beck (1861-1936) was a Philadelphia native and distinguished practitioner of law, admitted over the course of his career to the bars of Pennsylvania, New York, and England (he was made a bencher of Gray’s Inn in 1914). During World War I, Beck wrote articles and gave addresses against German aggression. In the 1920s he served as Solicitor General (1921-1925), appointed by President Warren G. Harding. Then he was elected to Congress as a Republican from Pennsylvania, serving from 1927 until his resignation in 1934. Beck resigned because he considered that Congress had become a “rubber stamp” for President Franklin D. Roosevelt’s New Deal. Beck was a leading political conservative, whose books reflected his concern for the rights of the states.[6]

The A.S. Williams collection at Bounds includes three titles by James M. Beck, as follows:

(1) The Constitution of the United States: Yesterday, Today—and Tomorrow? Foreword by President Calvin Coolidge (New York: George H. Doran Company, 1924). Beck’s Wikipedia article says of this title that “It was a best-seller, going through seven printings within ten months. A special edition of 10,000 copies, with a foreword by President-elect Coolidge, went to schools and libraries across the country.” This copy contains many handwritten notes (mostly in pencil) on the recto of the front free flyleaf and at various points in the margins of the text.

(2) May It Please the Court, O.R. McGuire, editor (New York: Macmillan, 1930). This title consists of a number of speeches, articles, and addresses, some historical and some political. With the exception of a penciled date of the recto of the front free flyleaf, it appears to be unmarked.

(3) Our Wonderland Of Bureaucracy (New York: Macmillan, 1932). This critique of the complexities of modern government (published just before the advent of the New Deal) contains a good deal of heated language. On socialist leaders (p. 85), Beck says that their message appeals “particularly to the lower intelligence, which fears its own capacity and sub-consciously favors a dictatorship.” A slim notepad laid in the book contains several brief notes, including a quote from Aristotle: “The laws have no lasting vitality save in the spirit of the people.”[7]

Louis B. Boudin (1874-1952), Government by Judiciary, 2 volumes (New York: William Godwin, Inc., 1932). Boudin was a member of a group that was surely underrepresented in this collection. His Wikipedia page describes him as “a Russian-born American Marxist theoretician, writer, politician, and lawyer,” and says that he is chiefly remembered for Government by Judiciary. This work counters the views of Justice Oliver Wendell Holmes. Specifically, Boudin takes Holmes to task for agreeing with Chief Justice Marshall that the U.S. Supreme Court has the power to declare laws unconstitutional. The work’s annotator (who favored red pencil) was likewise critical of this doctrine. He wrote “No! No!” opposite a passage setting forth Marshall’s view of the matter. This volume shows that legal populism was alive in Alabama, or wherever the annotator happened to live.

These volumes contain a number of marginal notes in red pencil. In many instances, the annotator was quite critical of Boudin’s interpretations. At the top of page 25, he asks: “How could [his] implication make both legislature and Supreme Court both supreme!!” On page 169, the annotator responds to the notion that Federalism or Antifederalism was “a matter of geography” by saying tersely: “No, never was.”

By the time he got to Chapter 33, on “Due Process of Law and Trial by Jury,” the annotator was taking marginal notes in a nearly auto-written mode. In the margin of page 357 he writes: “Trial by jury a good thing.” A few pages on, he summarizes what he has just read with the comment: “All silly.” On page 361, when Boudin refers to grand jury deliberations as “part of trial by jury,” the annotator comments: “But not an essential part.” On page 363, in response to another passage discussing juries, he writes: “But are not rights preserved as well by a jury of 8 as by 12?” Two pages later he attacks again, then relents: “What! Yet maybe so.”

Henrici de Bracton, De Legibus et Consuetudinibus Angliae, edited by Sir Travers Twiss, 6 Volumes (London: Longman & Co., 1878). Volume I contains an Introduction, pp. [ix]-lxvi, and a detailed “Index,” pp. lxxvii-cv. Similar detailed indexes head up the main text in each of the six volumes. The main text is presented throughout the work in Latin and English on facing pages. A more conventional index is presented after the main text in each of the volumes.

Each volume contains the bookplate of Seneca Haselton (1848-1921), a notable lawyer, mayor of Burlington in Vermont, Minister Plenipotentiary to Venezuela (1894-1895), and member at different times of the Vermont State Supreme Court.[8]

Henrici de Bracton[9] (c. 1210-1268) was a Devonshire man who served as clerk to the great royal judge William of Raleigh, Henry III’s trusted advisor and Chief Justice. By most modern accounts, the treatise known as “Bracton” was compiled in the 1220s or 1230s by Raleigh and passed along to Bracton, who put it in its final form. Bracton was a learned man in his own right, having studied Civil Law at Oxford. Indeed, the treatise De Legibus is remarkable for its efforts to reconcile common law and the ius commune, including Roman and canon law. It is equally notable for its use of case notes (of over 400 cases) to illustrate points of pleading and doctrine. It was the first English treatise to do so. The great medieval historian Frederic William Maitland discovered Bracton’s “Notebook.” This was a personal reference work containing notes of some 2,000 cases. Maitland published an edited edition of it in 1887.[10]

De Legibus opens with a much-quoted passage on the needs of a king:

“These two things are necessary for a king who rules rightly, arms forsooth and laws, by which either time of war or of peace may be rightly governed, for each of them requires the aid of the other, in order that on the one hand the armed power may be in security, and on the other the laws themselves may be maintained by the use and protection of arms.” [I: 2][11]

Maitland called Bracton’s De Legibus “the crown and flower of English jurisprudence.”[12] Given the decades that it took to put this work together, the brilliant legal minds that worked on it, and the universal jurisprudence to which it aspired, the treatise has earned such praise.

Thus endeth the first installment concerning our A.S. Williams Collection titles. This selection has contained, among other things,

(1) An early casebook, one of the foundation-stones of twentieth-century legal education.

(2) Works by a prominent anti-New Deal lawyer.

(3) An important work by a notable “Marxist Theoretician.”

(4) A gleaming jewel of the Middle Ages.

What more could one ask for?

PMP

 

[1] For a description of Hoole’s A.S. Williams III Americana Collection, see the guide at https://guides.lib.ua.edu/williams-collection.

[2] Mr. Hoover died in 1976 at the age of 85. Mr. James Williams furnished Mr. Hoover’s obituary, dated June 9, 1976 (newspaper unknown).

[3] For Ames’ Wikipedia article, go to https://en.wikipedia.org/wiki/James_Barr_Ames.

[4] For Bacon’s obituary, see New York Times, November 11, 1938.

[5] For a scathing review of this title, see 31 Political Science Quarterly 626-628 (Dec., 1916).

[6] For Beck’s Wikipedia article, go to https://en.wikipedia.org/wiki/James_Barr_Ames.

[7] Our Wonderland of Bureaucracy, x.

[8] See Wikipedia, “Seneca Haselton,” https://en.wikipedia.org/wiki/Seneca_Haselton.

[9] Sometimes spelled De Bratton.

[10] See in Bounds Law Library, at KD600 .B73 1887.

[11] The quote is even more sonorous in a more recent translation of Bracton. See George E. Woodbine, editor, On the Laws and Customs of England, Samuel Thorne translator, 4 volumes (Cambridge: Harvard University Press, 1968), thusly: “To rule well a king requires two things, arms and laws, that by them both times of war and of peace may rightly be ordered. For each stands in need of the other, that the achievement of arms be conserved [by the laws], the laws themselves “preserved by the support of arms.” The Woodbine/Thorne Bracton is available at the Bounds Law Library (Reserve) at KD660 .B7.

[12] See the Ames Foundation website, at https://amesfoundation.law.harvard.edu/digital/Bracton/bracton.html.

BRUTUS, CASSIUS, JUDAS, AND CREMUTIUS CORDUS: HOW SHIFTING PRECEDENTS ALLOWED THE LEX MAIESTATIS TO GROUP WRITERS WITH TRAITORS

The editors of Litera Scripta are aware that we live in troubled times. At home we face political divisions more intense than any since the American Civil War. Meanwhile, across the globe, authoritarian regimes have taken a page from George Orwell and turned disinformation into an evil form of art. The editors are confident, however, that there is very little that is new under the sun. That said, we should study the past for clues to present predicaments; and one cannot do better in this regard than to study the legal history of imperial Rome. There we see the “cult of personality” carried to its highest degree, resulting in the erosion—sometimes gradual, sometimes very rapid—of freedoms that Romans had taken for granted. This erosion of rights affected the state’s legitimacy in the eyes of its citizens. Eventually it affected the state’s ability to function.

These themes are present in Hunter Myers’ “Brutus, Cassius, Judas, and Cremutius Cordus: How Shifting Precedents Allowed the Lex Maiestatis to Group Writers with Traitors.”[1] This fine work of scholarship shows how the Roman concept of Maiestas (the “majesty of the state”) developed over time. It concludes with persuasive evidence that the Emperor Tiberius[2] twisted that element of Roman law to his own advantage—in the process corrupting the Senate, the courts, and the public itself. More dramatically, Mr. Myers shows us that Tiberius presided over his own descent into corruption—in his case marked by hypersensitivity to criticism, openness to malicious prosecutions, a thirst for vengeance, and other aspects of cold-hearted paranoia.

Hunter Myers is a member of the Class of 2022, University of Alabama School of Law and the forthcoming Editor-in-Chief of the Alabama Law Review.

[1] Honors Thesis, University of Mississippi, 2018.

[2] Ruled 14-37 AD.

 

BRUTUS, CASSIUS, JUDAS, AND CREMUTIUS CORDUS:

HOW SHIFTING PRECEDENTS ALLOWED THE LEX MAIESTATIS TO GROUP WRITERS WITH TRAITORS

By

Hunter Myers

A thesis submitted to the faculty of The University of Mississippi in partial fulfillment

of the requirements of the Sally McDonnell Barksdale Honors College.

Oxford, Mississippi, May 2018

Advisor: Professor Molly Pasco-Pranger

Reader: Professor John Lobur

Reader: Professor Steven Skultety

© 2018

Hunter Ross Myers

ALL RIGHTS RESERVED                                 

ACKNOWLEDGMENTS

Dr. Pasco-Pranger,

            For your wise advice and helpful guidance through the thesis process

Dr. Lobur & Dr. Skultety,

            For your time reading my work

My parents, Robin Myers and Tracy Myers

            For your calm nature and encouragement

Sally-McDonnell Barksdale Honors College

            For an incredible undergraduate academic experience

ABSTRACT

In either 103 or 100 B.C., Saturninus invented a concept known as Maiestas minuta populi Romani (diminution of the majesty of the Roman people) to accompany charges of perduellio (treason). Just over a century later, Tiberius used this same law to criminalize behavior and speech that he found disrespectful. This thesis offers an answer to the question as to how the maiestas law evolved during the late republic and early empire to present the threat that it did to Tiberius’ political enemies. First, the application of Roman precedent in regards to judicial decisions will be examined, as it plays a guiding role in the transformation of the law. Next, I will discuss how the law was invented in the late republic, and increasingly used for autocratic purposes. The bulk of the thesis will focus on maiestas proceedings in Tacitus’ Annales, in which a total of ten men lose their lives. The most striking trial that will be investigated is the one involving Cremutius Cordus, who praised Brutus and Cassius, referring to them as the “Last of the Romans.” However, does this make him a traitor who belongs in Dante’s ninth circle along with Brutus, Cassius, and Judas?

TABLE OF CONTENTS

Prologue

Roman Precedent and Exempla

The Application of Roman Precedent

Precedent in the Late Republic

Augustan Exempla

The Rewriting of Precedent under Tiberius

Inventing Maiestas

Origins of the Law – Perduellio

A Descendant of Perduellio – Maiestas

Two Test Cases: Caepio and Norbanus

From Varius to Sulla

Caesar’s Law and Motivation

Maiestas in Tacitus’ Annales

Examining Tacitus

Maiestas and Augustan Precedent in The Annales

Two Preliminary Tests Under Tacitus

Marcellus

Appuleia Varilla

Germanicus and Gnaeus Piso – Maiestas Turns Deadly

The Creep of Maiestas and Informers

Two Proceedings in 22 A.D., Maiestas Targets the Powerful

Gaius Silius, Calpurnius Piso, and the Protection of Informers

Cremutius Cordus, The Apex of Tyranny

The End of the Reign of Tiberius

Epilogue

Bibliography

 

Prologue

That upper spirit,

Who hath worst punishment, so spake my guide,

“Is Judas, he that hath his head within

And plies the feet without. Of th’ other two,

Whose heads are under, from the murky jaw

Who hangs, is Brutus: lo! How he doth writhe

And speaks not. The other, Cassius, that appears

So large of limb. But night now reascends;

And it is time for parting. All is seen. (Inf. XXXIV, 56-64)[1]

Dante vividly describes the ninth circle of hell, an icy section reserved for those who betrayed others in their life on Earth. A person who committed this type of act was, and still is today, truly considered the worst of the worst. Why is the concept of betrayal such a powerful one? Could it be due to the premeditation required to betray another person, or perhaps one imagines the damage that could be done if they themselves were betrayed?

Image of Lucifer half-submerged in ice.
Lucifer half-submerged in ice

Whatever the cause may be, the human race seems to be fascinated with the concept, as stories of treachery are as old as time itself. In Genesis Cain killed his own brother Abel, which constituted the first murder and first betrayal in the Abrahamic tradition.[2] When the Spartans held back the Persians at the “hot gates” of Thermopylae, they lost their lives due to the betrayal of Ephialtes (Hdt. 7.213).[3] Caesar was stabbed to death close to the Theatre of Pompey by a group of senators, led by the trusted Brutus and Cassius (Plut. Vit. Caes. 66).[4] Some seventy years later, Judas would betray Jesus, leading to his crucifixion.[5]

Around the same time as Judas’ actions, Cremutius Cordus was accused of treason for his written account of Roman history. His accusers specifically pointed at one phrase in which he labeled Brutus and Cassius as “the last of the Romans”. Knowing that his guilt and execution were certain, Cremutius Cordus took his own life. However, is there any resemblance between his actions, and those of Brutus, Cassius, and Judas?

Dante places the unholy triad of Brutus, Cassius, and Judas in the center of his Inferno, eternally trapped in the jaws of Lucifer himself. Their treason is inarguable, as Brutus and Cassius directly participated in Caesar’s murder, and Judas handed Jesus over to the authorities who despised Jesus. They all betrayed the leaders of their time, one being secular, the other being spiritual. Brutus and Judas both betrayed a close friend. In virtually every society that has ever inhabited the Earth, treason is one of the worst possible offenses, and one that both the government and the populace will not tolerate. This sentiment is what allowed the Roman charge of maiestas minuta populi Romani (diminution of the majesty of the Roman people) to evolve from an accompaniment to a treason charge to a forced suicide preceding, or a death sentence following, a show trial under the emperor Tiberius. Saturninus, a tribune of the plebeians, originally proposed the law to prosecute people who he believed had diminished the majesty of the Roman people. However, as Rome shifted from Republic to Empire, especially under Tiberius, the law became a convenient tool to prosecute, and execute, anyone at the whim of the emperor. Eventually, the maiestas law extended to persons who used contentious words, such as Cremutius Cordus. The maiestas law labeled speech as sedition, turned writers into traitors, and led to the death of many who dared to use the wrong words.

 

Recent Acquisitions: Six Ledger Sheets from the Circuit Court of Perry County, Alabama, February 11-19, 1878; Documenting Criminal Court Fees Certified by Alabama Probate Judge Porter King

This post by Rodney Lawley is an addition to our recent acquisitions. Lawley works with Litera Scripta editors as a research assistant in the special collections and archives of the Bounds Law Library.

The work of Porter King, a prominent nineteenth-century lawyer, state legislator, and businessman from the State of Alabama, is featured in the latest acquisition of the John C. Payne Special Collections of the Bounds Law Library. The Judge Porter King Ledger is a six-page legal document detailing criminal court fees issued by the Court of Perry County, Alabama (February 11-19, 1878).Image of Porter King ledger.

Judge King was born April 30, 1824, in Perry County, Alabama, and was the son of a wealthy Alabama plantation owner. After attending the University of Alabama and Brown University prior to 1843, King studied law under the tutelage of Colonel Thomas Chilton in Marion, Alabama. He began his law practice in 1845 and was elected to the state legislature for a single term in 1847.

Upon completing his term, King practiced law in Marion, Alabama, and he was subsequently elected as an Alabama Circuit Court Judge in 1850. King served the state in this capacity for fifteen years, interrupted only briefly by a one-year command of an Alabama Civil War regiment. In 1865, King was unseated from the Circuit Court by Governor Lewis E. Parsons, a provisional official appointed by President Andrew Johnson.

Following his removal, King applied his talents to business and served in many important roles, including director of the insurance company Central City, the Commercial Bank of Selma, and as president of the Selma, Marion, and Memphis Railroad.

King was later appointed as Alabama Probate Judge in 1877. It was during this short two-year term that he signed the ledger documents acquired for this collection. Although King was a probate judge during this period, the court fees levied in these documents are based upon criminal court convictions in cases such as murder, burglary, and affray. This action is supported by The Code of Alabama 1876 directing probate judges to act as the ex officio judge of a county court. It is with such legal warrant that Judge King executed the fee judgements recorded in this collection.

Although King’s service as probate judge was his last role on the bench, he is remembered fondly in an 1890 Birmingham Daily News article referring to King as “one of the best judges the state has ever had.” The article continued this acclaim by adding, “For the last thirty years he has been the most prominent man in the state.”

Documents within the Judge Porter King Ledger are directed to local sheriffs and constables and describe fees and costs pertaining to the issuance of writs, the serving of subpoenas, and other court actions that require public funding.

Image of Porter King ledger.One such document describes the court’s charge of twelve dollars and eighty cents for services provided in administrating a burglary charge. In this case, ten cents per mile was billed to the defendant for guard services required during his incarceration. Similarly-rich detail is provided for other court decisions, including conviction-related fees for the quasi-anachronistic charge of “carrying concealed brass knuckles.”

Judge Porter King died January 3, 1890, in Atlanta, Georgia, after “suffering about a month with a dropsical affection.” The John C. Payne Special Collections is pleased to present this representation of his historically-significant work.

Rodney Lawley

Sources

“An Alabama Jurist.” Birmingham Daily News. January 3, 1890, 6.

Owen, Thomas McAdory. History of Alabama and dictionary of Alabama biography. Volume 3. Chicago: S.J. Clarke Pub. Co., 1921. See 3:982 of the 1978 reprint by The Reprint Company, Publishers.

State of Alabama. The Code of Alabama 1876. “County Courts,” §719, 339.

 

In Memory of David Robb, Gentleman and Scholar

The following is an obituary of David Robb (1937-2021), a scholar who made use of our Frank M. Johnson materials and visited the John C. Payne Special Collections facility on more than one occasion.

David Metheny Robb, Jr. was born on April 12, 1937 in Hennepin County, Minnesota, and died on March 5th at Huntsville Hospital due to complications from COVID-19. David Robb and his wife Frances Osborn Robb are well-known in Alabama for their work in museums and for their efforts in historic preservation. Their joint projects included a finely executed display on Judge Frank M. Johnson, Jr. in the Middle District of Alabama Federal Courthouse in Montgomery, and the conversion of Congressman Carl A. Elliott, Sr.’s house in Jasper into a museum.

David Robb graduated from Episcopal Academy in 1955, and from Princeton University in 1959, where he majored in art history and developed a lifelong love of the graphic arts, printing, and travel. He served as a Naval Air Intelligence Officer on the aircraft carrier USS Oriskany for three-and-a-half years. On leaving the Navy, he worked as curator for noted collector and philanthropist Paul Mellon. After he married Frances Osborn Robb of Birmingham, they attended Yale University where they received Master of Arts degrees in art history.

Robb then received a Ford Foundation Fellowship at the Walker Art Center in Minneapolis. In 1969, he was appointed founding curator at the new Kimbell Museum in Fort Worth, Texas and moved up the ranks to Acting Director in 1979. In 1983 Robb was appointed director of Telfair Academy in Savannah, Georgia, where he also oversaw two historic buildings, Telfair Academy and Owens-Thomas House. In 1985 he was appointed director of the Huntsville Museum of Art. While there he organized several initiatives, including the planning of a new stand-alone building for the museum. He retired in 1995, taking on special projects, many with Frances, and traveling in England and France.

Since then, Robb presented papers at professional meetings, published in Alabama Heritage magazine, and served on state boards, including the Alabama Historical Association and the Friends of the State Archives. David Robb will be buried at Maple Hill Cemetery in Huntsville, Alabama. Donations in his memory may be made to the Alabama Historical Association and the Alabama Department of Archives and History.

The editors of Litera Scripta offer their sincere condolences to Frances Robb and salute the memory of David Robb, gentleman and scholar.

 

 

 

 

Alabama’s First Woman Lawyer and a Pioneering Political Activist, Maud McLure Kelly

Image of Maud McLure Kelly.
Maud McLure Kelly, courtesy of Samford University Special Collections

Maud McLure Kelly (1887-1973) was Alabama’s first woman lawyer and a pioneering political activist and archivist. Kelly was born on July 10, 1887, in Oxford in Calhoun County to Richard Bussey Kelly, a lawyer, and Leona Bledsoe Kelly. She graduated from Anniston’s Noble Institute, a primary and secondary school, in 1904, having absorbed her parents’ staunchly pro-Confederate, Democratic views. From an early age, Kelly was fascinated with law, and after the family moved to Birmingham in 1905, she read law in her father’s office. Two years later, Kelly entered the University of Alabama to study law formally. Although the school had opened its doors to women more than a decade earlier, Kelly was only its second female student. Well liked by her classmates (who called her “sister in law”), Kelly graduated third in her class in 1908. Nevertheless, had not John McDuffie, a law student and legislator, rewritten the bar admissions statute so that women could present credentials, Kelly might never have practiced in Alabama.

Kelly was admitted to the bar in October 1908 and opened a practice in Birmingham. Within a few years she was handling a variety of civil matters and criminal cases, including a lawsuit against the Alabama Coast Line Railroad for the killing of an African American child. She also assisted the state attorney in prosecuting a case. In 1914, after being nominated by famed attorney William Jennings Bryan, Kelly was admitted to the bar of the U.S. Supreme Court. Kelly was also politically conscious. She joined women’s historical, genealogical, and cultural societies.

Image of William Jennings Bryan.
William Jennings Bryan  Courtesy, Library of Congress

An ardent suffragist, Kelly joined the Birmingham Equal Suffrage Association and participated in its campaign to give women the right to vote, serving on the executive council and the policy-making board. She also advocated for the poor and underserved. By 1919, when the Nineteenth Amendment was ratified and women were given the right to vote, Kelly had taken a post as a federal attorney with the U.S. Department of the Interior in Washington, D.C.

Image of Maud Kelly and family members.
Maud McLure Kelly and family members, courtesy of Samford University Special Collections

In addition to her work, Kelly volunteered to work with hospitalized veterans at Walter Reed Army Medical Center—an experience that would soon prove useful. In 1924, displeased with the scandal-ridden administration of Warren G. Harding and needed at home to care for her ailing father and two brothers wounded in World War I, she returned to Birmingham, where she resumed her practice, her professional associations (she was an officer in the Alabama Woman Lawyers Association), and her political interests. She stumped the state in 1928 for Democratic presidential candidate Al Smith, and in 1932 served as official host for the Alabama delegation to the Democratic National Convention.

Able to live off some wise investments, Kelly ended her legal practice in 1931 but continued to do civic work, notably for the American Legion Auxiliary. In 1943 Kelly accepted Alabama Department of Archives and History (ADAH) director Marie Bankhead Owen’s offer of the combined post of acquisitions agent, editor of the Alabama Historical Quarterly, and inspector of county records. In addition, Kelly authored legislation that gave ADAH authority over public records. Retiring in 1956, she continued to care for ailing family members and took up genealogy. Kelly died on April 2, 1973, and was buried in Anniston’s Hillside Cemetery. A devout Baptist, she donated her personal collection of genealogies, local histories, maps and other items to the Special Collections Department of the Samford University Library.

PMP

 Additional Resources:

McDuffie, John. To Inquiring Friends If Any: Autobiography of John McDuffie, Farmer, Lawyer, LegislatorJudge, As Told to and Edited by Mary Margaret Flock. Mobile, Ala.: Azalea City Printers, 1970.

Newman, Cynthia. Maud McLure Kelly: Alabama’s First Woman Lawyer. Birmingham, Ala.: Birmingham Printing and Publishing Co., 1984.

Sallee, Shelley. The Whiteness of Child Labor Reform in the New South. Athens: University of Georgia Press, 2004.

Thomas, Mary Martha. The New Woman in Alabama: Social Reforms and Suffrage, 1890–1920. Tuscaloosa: University of Alabama Press, 1992.

 

Julia S. Tutwiler, “The Upton Sinclair Fast Cure for the Mind”

Julia S. Tutwiler, “The Upton Sinclair Fast Cure for the Mind”

Image of Alabama Normal College.
Alabama Normal College

The academic year 1910-1911 was an awkward time for Julia Strudwick Tutwiler. A celebrated educator, prison reformer and temperance advocate, she had only recently (May 1910) been forced to retire from her position as president of the Alabama Normal College. A letter-writing campaign by some of her former students had only antagonized the school’s Board of Trustees, who cut off her pension. Nearing her seventieth birthday and in deteriorating health, she would keep up an array of reformist activities; but she was no longer an educator, and to that extent she felt adrift.

Image of Julia Tutwiler.
Julia Tutwiler

As an educator, Julia Tutwiler had tried to lead her students—whether college women at ANC or convicts at a stockade Sunday school—toward lives of reason, moderation, and self-control. The piece transcribed below, “The Upton Sinclair Fast Cure for the Mind,” may be an example of the tone she had often struck as a teacher. Upton Sinclair was a Progressive journalist and novelist, most famous today for his 1906 muckraking expose of the meatpacking industry, The Jungle.[1] By 1911 Sinclair (like Julia Tutwiler, a prohibitionist) was promoting a health regimen which included fasts of ten or twelve days.[2] Tutwiler discussed his ideas within her circle of family and friends and came up with her own more psychological insight, which she presented (together with a smattering of reminiscences) in an April letter[3] to the Montgomery Advertiser:

“Everybody here has been talking about Upton Sinclair’s Fast Cure; and some of us have tried it with good results. But have you ever tried a Fast Cure for the Mind? Did you ever resolutely resolve not to read a daily paper or a magazine for ten days, and then watch the operations of your mind to see how much stronger they were? Just try it. Ask some friend to tell you if anything very startling occurs—if Spain, Italy or Great Britain changes to a republic; somebody assassinates the Czar of Russia, or Roosevelt performs some new astounding “stunt.” If you live in a city you will see all you must really know from the bulletin boards outside the offices of the great dailies. What earthly good will it do you to learn that a man in Nevada poisoned his wife; or that a crazy lover in Oklahoma shot his sweetheart and then himself. You can learn from the census statistics that a certain number of people out of every ten thousand are going to do these same things every year, and that is enough. What good does it do you to know the man’s name? The reading of it used up a milligram of your mental vitality, and your supply is not inexhaustible.

I was once so situated that for a considerable time I was cut off from all light reading. I consider that I made more mental growth during that time than in any period of my life of equal length. When I was studying in Germany, the first Emperor—good old Wilhelm—was still reigning. Every few days the papers announced that some recalcitrant editor had been incarcerated for thirty days. Some one had written an article for his paper which displeased the censors of the press, and the editor refused to tell the name of the contributor. The editor was treated very much like a naughty little boy who is put to bed and not allowed to have any of his toys [nor] any books except his Sunday books. He was strictly prohibited from seeing the papers during his incarceration. I have thought that the rulers were very short-sighted. They did not know that he would come out of his forced retirement like a giant refreshed—like Samson after his hair had grown out. His blows would be harder than ever; if they had been “facers” before they would be regular “knock-downs” now.

I have always felt that one of the most delightful pleasures in crossing the Atlantic was that you were completely cut off from the news of the world. No daily paper, no letters no telegrams. You were a sort of Crusoe on a luxurious [moving] island, but with numerous pleasant companions. But, alas! The wireless telegraph has changed all that. A daily paper is published on every great liner. You will have to be your own mental Crusoe and resolutely withstand the temptations of dailies and weeklies for a fixed time. Try it. You will be well paid for the experience.

Julia S. Tutwiler.”

PMP

[1] Upton Sinclair, The Jungle (New York: Grosset & Dunlap, 1906).

[2] Upton Sinclair, The Fasting Cure (New York and London: M. Kennerley, 1911).

[3] Montgomery Advertiser, April 16, 1911. The published letter was checked against a handwritten draft found in the McCorvey and Tutwiler Families Paper, Hoole Special Collections Library, University of Alabama.