Historians in the Archive — Talk at Virginia Consortium of Early Americanists

The ‘historians in residence’ at Law Special Collections – Loren Moulds (Digital Collections Librarian) and Jim Ambuske (Postdoctoral Fellow in Digital Humanities) – presented at this year’s annual meeting of the Virginia Consortium of Early Americanists. The consortium, supported by the Omohondro Institute, serves as a forum for scholars of early America working in the Commonwealth. Jim and Loren, alongside Susan Perdue of the Virginia Foundation of the Humanities, presented on the theory and practice of constructing digital archives.

The Scottish Court of Session Records Digitization Project

Jim provided an early preview of the Law Library’s Scottish Court of Session Records digital archive. He gave a brief overview of the history of the Scottish Court of Session, the highest civil court in Scotland, and explained that as a court of appeal and of first instance, the court held jurisdiction over contract and commercial cases, succession and land ownership, divorces, intellectual property and copyright, among many other civil matters. More than reports of judicial decisions, these documents tell a new and understudied story of life, law, and trade in the British Atlantic world away from the imperial capital of London.

These documents offer a window into the everyday lives of the peoples of the British Atlantic and possess valuable potential as a digital corpus. Narratives of commercial ventures and descriptions of investor networks in bankruptcy cases reveal the larger commercial and legal regime in which this commerce operated and illuminate the experiences of otherwise overlooked participants such as sailors, wives, farmers, customs officers, and middling traders. This collection provides a body of primary materials that offer new insights into the eighteen‑century British Empire for scholars of history, sociology, economics, and law. The project plans to digitize these records, revealing relevance that might otherwise be overlooked because of the ways in which eighteenth and nineteenth century clerks, archivists and collectors catalogued these materials to better serve the needs of the legal process.

Supreme Court of Scotland documents
A map and case materials, examples of the rich content within the documents found inside the Library’s collection of Scottish Court of Session papers.

In his presentation, Jim underscored how these documents illuminate interpersonal relationships that often spanned the Atlantic. For scholars of American history, these seemingly unlikely sources provide a new perspective on America’s colonial and early national periods. Jim noted that the papers speak to a diversity of topics relevant to American history including the tobacco trade between Scotland and North America, commerce between North America and the Caribbean, tensions between North American and British manufacturing and fishing interests, Atlantic travel and migration, and the imperial crisis that preceded the American Revolution. Jim concluded his talk by laying out the decisions Law Special Collections staff made to ‘open up’ the collection to researchers, such as providing full-text access; drawing connections between documents using maps, timelines, and prosopography; developing interpretive taxonomies; and planning to provide exploratory themes.

Jim’s discussion of the interpretative aspects of the developing Scottish Court of Sessions Digital Archive provided a springboard into Loren’s talk, which reflected on the value of the historian’s training in the conceptualization and construction of digital archives projects. Loren spoke of the practice of making interpretive interventions into online collections to enhance their value to scholars and the public. Bringing the historian’s perspective to the materials individually and as a collection asks a series of questions: Why are these materials valuable and to whom? What is hidden in them? What could opening them up offer to researchers? What is appealing? Where could these documents contribute to established fields of study? How do these materials speak to historical questions that remain unanswered or underserved?

Building Interpretive Layers into Digital Archives

Loren then applied this methodology to the construction of the Law Library’s digital archives, noting that constructing layers of interpretation and sophisticated interfaces can greatly add to a collection’s value to researchers. The process involves the creation of an interpretive system for accessing, remixing, and drawing connections between the documents. In addition to rich description and full-text indexing, library staff codifies entities that appear within the documents, such as events, people, places, or overarching case themes, and then develops sophisticated relational linkages and taxonomic connections between the documents and these entities. These linkages are the real value-added aspect of this approach and its one that requires an historian’s eye to properly create. As opposed to entering into the process with presupposed conclusions, we instead allow the materials to speak to us and interrogate them using our training as historians.

As the process proceeds and the digital archive begins to emerge, we offer models of interpretation and analytical tools for interacting with the content within the materials. In creating models of interpretation, we act like a sommelier for our collection to offer informed suggestions for the types of materials most useful to particular scholars. We try to produce short articles, blog posts, or curated lists of related content with suggestions for further research that speak to a variety of research interests.

We also endeavor to provide analytical tools that embrace evolving, modern methods of analyzing and visualizing the data in our collection. Maps, timelines, or topic-modeling-derived visualizations are digital ways to interrogate a broad array of evidence and begin the work of drawing informed conclusions. We try to situate our collections within a global framework by drawing explicit connections to other materials within the Law Library or elsewhere and envision the inclusion our digital archives in federated databases. These tools encourage historians to look at larger patterns and connections while still being able to target particular documents in which they may be interested.

The Law Library’s approach tries to digitize a considerably large quantity of documents and to provide rich descriptions of these materials. The approach, however, is not simply about the creation of big data: we are not particularly interested in “digitize, dump, and release.” Data is most useful when presented through conceptual frameworks because at the end of the day it is aggregated historical evidence. Our process attempts to contextualize the data in the collection and suggest unexplored or underdeveloped questions or arguments.

Loren suggested as well that the Law Library’s model embraces aspects of the burgeoning field of Critical Archives Theory: by questioning existing subject headings, descriptive frameworks, and data models, we can subvert or challenge established wisdom about how archival items should be collected, cataloged, described, or used. These interpretive choices must be made transparently and in ways that engage with the scholarly community. We recognize the taxonomies created for the Law Library’s digital archives are a product of modern historical interpretation. A noteworthy example from UVA main libraries system are the efforts of librarians in collaboration with the Take Back the Archive project aimed at better interpretation of controlled vocabularies—in this instance Library of Congress Subject Heading terms—for application to archival description of materials related to sexual violence on grounds.

Loren concluded his presentation by noting that archives ought to participate in broader conversations with historians and other scholars about meaningful ways to open up archival material using digital technology. He suggested that digital history or digital archives projects share much in common with traditional scholarly productions, such as articles or monographs. Arguably, digital archives can be defined as concrete scholarly contributions featuring evidence-backed assertions that engage with historiography, ask historical questions, and highlight connections to primary materials – research that begets other research. Their construction is inherently collaborative and should not be understood as exclusively archival or technological endeavors. Historians in the archive can empower archival databases to speak to other historians, acting as promoters and translators, broadening the definition of scholarship available to historians.

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E. Barrett Prettyman, Jr.’s Supreme Court in the Civil Rights Era

The rancorous 2016 presidential election concluded on November 8th with Republican Donald J. Trump’s dramatic upset victory over Democrat Hillary Clinton. Voters went to the polls to choose the nation’s next leader, and by doing so entrusted the next president with the power to shape the composition of the Supreme Court for a generation. President-elect Trump will now have the opportunity to nominate a replacement for Justice Antonin Scalia, whose death earlier this year created a vacancy that remains unfilled despite President Obama’s nomination of Judge Merrick Garland. On the campaign trail and the debate stage both Clinton and Trump spoke to the kind of justices they would appoint to the court. It served as a reminder of the Supreme Court’s political nature and the central role that the justices who compose it play in forming a more perfect Union. 

The passing of a former Supreme Court law clerk four days before the election affords us a chance to pull back the granite curtain on the court’s inner workings during an earlier period of intense division within American society. E. Barrett Prettyman, Jr., who died on November 4, 2016 after a long career of public service and a successful private practice, clerked for the Court in the mid-1950s when it handed down its momentous decision in Brown v. Board of Education. The unanimous decision in that case overturned the “separate but equal” racial segregation precedent established in Plessy v. Ferguson (1896) by declaring that segregation in public schools violated the Equal Protection Clause of the 14th Amendment. The landmark case was a crucial moment in the early Civil Rights Movement, a period in which Americans of every creed and color contested the fundamental meanings of liberty, equality, and citizenship in the republic.

Prettyman’s personal copy of the Brown v. Board of Education decision  with the signatures of the Supreme Court Justices.
Prettyman’s personal copy of the Brown v. Board of Education decision
with the signatures of the Supreme Court Justices.

In 1986, Prettyman donated a large portion of his legal papers to the Arthur J. Morris Law Library. They offer valuable insights into the Court’s internal deliberations over Brown v. Board of Education and other prominent cases in the period.[1] Equally important, they put a human face on some of the Court’s black-robed personalities and illuminate the special bond that clerks formed with their justices as they together interpreted and refined American law.

Prettyman, Jr. was a 1949 Yale University graduate and the son of Judge E. Barrett Prettyman of the U.S. Court of Appeals for the District of Columbia Circuit. The younger Prettyman completed his law degree in 1953 at the University of Virginia School of Law. During his time at UVA he was a member of the Student Legal Forum, an organization newly created to bring prominent legal minds to Grounds. In 1951, Prettyman, no doubt benefiting from his father’s position on the appellate court, arranged for Associate Justice Robert H. Jackson to speak on Grounds.[2] Two years later Justice Jackson hired Prettyman to serve as one of his law clerks at a salary of $5,175.50. His performance warranted a nearly $1,000 raise the following year, but he joined Justice John M. Harlan in November 1954 after Justice Jackson suffered a fatal heart attack.[3] Prettyman served Justice Felix Frankfurter during this period as well.

Becoming Justice Jackson’s law clerk in 1953 thrust Prettymen into the Court’s deliberations over Brown v. Board of Education. The justices first heard arguments in the consolidated case the previous December and ordered re-arguments for the fall of 1953. Some of the justices, particularly Frankfurter, hoped that in the interim Congress would outlaw public school segregation and thus avoid the need for judicial intervention. Justice Stanley F. Reed preferred that the states end segregation on their own terms. Despite their collective misgivings many of the justices were at least open to the idea of striking down the Plessy doctrine. Others required more convincing. The proponents for overturning the “separate but equal” precedent feared that an opinion issued by a divided court risked undermining the legitimacy of the ruling. Dissenting opinions could lend a measure of credence to the belief that segregation was constitutionally sound and bolster advocates for segregation in state and local communities.   

While Frankfurter did not get his wish for congressional intervention, the death of Chief Justice Fred M. Vinson in September 1953 changed the Court’s dynamics in unexpected ways. The Kentuckian’s fellow justices believed that he would vote to uphold Plessy on the basis of well-established judicial precedent. Vinson’s demise was for Frankfurter “the first indication I have ever had that there is a God.”[4] It brought a new chief justice to the Court in the form of California Governor Earl Warren and the potential for a unanimous decision in Brown’s favor.

After the Court reheard arguments in December 1953 the new chief famously worked to persuade his colleagues, including Justice Reed, that overturning Plessy was both a legal and moral imperative.[5] The Court would issue a unanimous decision to strike down the separate but equal doctrine. The question then became whether the justices would release a single opinion or deliver multiple concurring statements.

For a number of months Justice Jackson considered authoring a separate opinion. He believed that Plessy should be undone, although he struggled to find a satisfactory legal theory to support his position. His draft opinion well reflected this difficulty in its conclusion that the “mere possession of colored blood, in whole or in part, no longer affords a reasonable basis for a classification for educational purposes and that each individual must be rated on his own merit.”[6] In other words, instead of identifying a precise point of law with which segregation conflicted, Justice Jackson’s opinion rested on the assumption that segregation was no longer legally defensible. Even then the main thesis occupied very little space in his draft document. The opinion itself meandered through an exploration of southern culture and African–American advancement in post-Civil War America to the legislative history of the 5th and 14th Amendments and their respective Due Process Clauses, the problem of enforcing the Court’s order, and the acceptance of segregation’s constitutionality in American history. Only then did Justice Jackson weakly assert that segregation no longer had a legal basis.

The Justice gave his draft opinion to Prettyman for his evaluation. The young lawyer immediately recognized its unfocused nature. Indeed, as Prettyman pointed out to Justice Jackson in a lengthy critique, the legal reasoning to strike down Plessy was stated “in only two out of 23 pages” and was “almost an afterthought.” Prettyman was blunt with his mentor: The document had an “apologetic” tone as if “you were ashamed to reach” its conclusion. Delivering a sheepish concurring opinion, he argued, would undermine the Court’s authority because “Some one must make these decisions, and under our system the burden is on the courts.” An opinion should be confidently argued and forcefully given to retain the public’s confidence in the Court’s decision. Whatever conclusions the majority or individual justices reached, the public needed to feel that “it is a decision based upon law” and not the wishes of “a bunch of liberals in Washington” foisting their views on the masses.[7]

E. Barrett Prettyman, Jr., Re Nos. 1-4, c. March-May 1954.
E. Barrett Prettyman, Jr., Re Nos. 1-4, c. March-May 1954.

 

Prettyman believed that Justice Jackson’s draft opinion appeared weak and apologetic in part because the Justice could not say with precision how he knew that sufficient racial equality had been achieved or when it had happened. Both Justice Jackson’s draft opinion and Prettyman’s memorandum traded in contemporary ideas of racial inferiority and uplift that informed sociological and intellectual attitudes about African Americans in the mid-twentieth century.[8] Prettyman suggested that the Justice restructure his opinion by moving his conclusion to the beginning and justifying it through an exploration of the expansion of public education in the United States. He pointed to the Justice’s underlying theme that “public education is no longer for the privileged few” and that as America had “adopted [Thomas] Jefferson’s great dream” of a broadly educated public, “mass education, for all people, is simply an established fact in this country today.” Repackaging his discussion about black social and intellectual advancement since Emancipation would then allow the Justice to counter pro-segregation arguments based on assertions of racial inequality and in turn argue that “the races are no longer sufficiently unequal or distinct to warrant” separate but equal policies.[9]

Justice Jackson ultimately decided not to issue a concurring opinion. A combination of his initial heart attack in March 1954, his own inability to develop a sound legal theory, and Chief Justice Warren’s desire for a unified statement prevented him from finishing the work.[10] In a memo from December 1954, Prettyman recorded that Justice Jackson was about to begin refining his opinion based on his clerk’s critique when he became ill. Nevertheless, one morning, following a visit from Chief Justice Warren to his hospital room, Justice Jackson asked Prettyman to write a concise paragraph based on his evaluation. The Chief Justice was due back in the afternoon and Justice Jackson believed that Warren’s own draft opinion “could use a little more law.” While the paragraph is not among Prettyman’s papers in the UVA Law Library, Prettyman’s memo suggests that he delivered to Justice Jackson language that declared an end to legal segregation in general, and not just in public education. The two justices discussed Prettyman’s paragraph (with Jackson giving the Chief Justice an oral summary of it) before deciding that the Court’s final opinion should remain focused just on segregation in public education.[11] The Court, with Justice Jackson in attendance despite his recent heart attack, announced its decision on May 17, 1954.

Prettyman’s critical reading of Justice Jackson’s draft opinion demonstrates the trust that Supreme Court justices place in their law clerks to assist them in their duties. Justice Jackson and his colleagues well understood that Brown v. Board of Education was one of the most important cases ever to come before the Court. Their historical awareness of the moment added to the challenge they faced in crafting an opinion that overturned established doctrines rooted in social norms and law dating back well before Plessy v. Ferguson. Justice Jackson’s collaboration with Prettyman to meet that task helped him to see where he had fallen short in articulating the unconstitutionality of segregation even though he felt the practice should end. Prettyman and his fellow law clerks played crucial roles in this and other cases to help the Court “say what the law is.”[12]

The bond between Prettyman and the justices he served extended far beyond their intellectual discussions about the law. Humorous exchanges at surprising moments hinted at the respect and even the friendship that they felt for one another. An exchange between Prettyman and Justices Frankfurter and Hugo Black illustrates this point. On April 20, 1955, the Court reheard oral arguments in the case of Ellis v. Dixon. The case pitted James R. Ellis, the president of the Yonkers Committee for Peace, against William Dixon and the members of the Board of Education of the City of Yonkers. The Committee wanted to use Yonkers public school buildings to hold a forum on peace and war, but the school board denied its request. The Committee claimed that the Yonkers school board had violated the First and Fourteenth Amendment rights of its members.

Unfortunately for the Committee, its lawyers could not really say just how the Yonkers school board had violated their constitutional rights. They conceded that the school board had the power to deny use of its facilities to non-scholastic groups and claimed that the school board applied state and local regulations selectively, although they could not offer the Court a specific example.

Justice Frankfurter thought that the case was a big waste of time. He silently questioned why the Court had even agreed to take the case in the first place as he listened to the plaintiffs. Frankfurter, a man with a forceful, if not intimidating, personality, sent a note to Prettyman who was sitting in the audience. “Believe it or not,” he wrote, “but I am resolved not to say a word in his case! FF.”[13] Prettyman played along. He returned the note with the reply, “I’ll give you 25¢, 6 jelly beans and a pat on the back if you keep your promise.” The “jelly beans” comment referred to a recent news story about Albert Einstein and his acceptance of candy or baked goods in exchange for helping young people with their math homework.[14] Frankfurter didn’t miss a beat: “You must have read the Einstein story about ‘jelly beans.”

 

Justice Felix Frankfurter to Prettyman, 20 April 1955.
Justice Felix Frankfurter to Prettyman, 20 April 1955.

As the Yonkers Committee’s lawyer continued Justice Frankfurter grew more and more impatient. “Of all the baseless certs,” he again wrote to Prettyman, “this is it!!” Still, he did not ask any questions. Frankfurter explained his uncharacteristically quiet demeanor in a fourth note: “My silence is meant to be disdain and contempt. FF.” It did not last much longer. Chief Justice Warren asked the Committee’s lawyer a question at the conclusion of his oral argument that then turned into a discussion about filing further briefs. Frankfurter, perhaps fearing that even more of the Court’s time would be squandered, “almost exploded with a combination question and comment.”[15] When Frankfurter had finished, Justice Black, aware of the bet, sent a note of his own to Prettyman. “Don’t let him off on a technicality,” he wrote, “that was a question.” Sensing that he may have lost the wager, Frankfurter quickly sent another note ruling that “my intervention was after the argument, on a point unrelated to the argument — and so, please 25¢, 6 jelly beans.”

Prettyman retreated to his office to type out a formal “opinion” that held Justice Frankfurter in violation of the agreement. He sent it to Frankfurter who was, as a reminder, still sitting on the bench hearing the case. The justice soon sent it back with his replies. Prettyman reiterated that Frankfurter had promised to remain silent during the lawyer’s oral argument and that the lawyer had not yet rested his case when Frankfurter spoke. “The ‘case’ is over,” Frankfurter replied, “in the sense in which the word ‘case’ was used in context.” That was to say, it wasn’t much of a case at all. To Prettyman’s observation that Justice Black had overruled him, Frankfurter responded that he “did not know [Black] had that power without four more.” Finally, Prettyman lamented that while Frankfurter laid claim to the money and jelly beans, he had said nothing about the pat on the back. “That’s a sad commentary on our friendship,” Prettyman ribbed. Frankfurter underlined “pat on the back” and exclaimed that “I’d rather have that than even 60 jelly beans!” His view of the case was vindicated when the Court ruled 5-4 that the writ of certiorari had been improvidently granted.[16]

 

Prettyman and Frankfurter exchange # 7, 20 April 1955.
Prettyman and Frankfurter exchange # 7, 20 April 1955.

What the E. Barrett Prettyman, Jr. Papers at UVA’s Morris Law Library offer us is a rare view into the Supreme Court’s inner sanctum and the people who inhabited it at a critical turning point in American history. The Court’s decision in Brown v. Board of Education lent momentum to a growing Civil Rights Movement that transformed American society in profound ways. Prettyman’s files allow us to glimpse into the Court’s internal struggle to reach a decision and into Justice Jackson’s ultimately futile search for a legal theory to support his concurrence. They also reveal a more human side of the Court, one that shows the justices as capable of humor and warmth even as they sat on the bench hearing a case.  

In January 2017, President-elect Trump will begin the process of reshaping the Supreme Court by appointing a new woman or man to fill Justice Scalia’s seat. If the recent election is any indication, the person whom Mr. Trump nominates will probably provoke passions on both sides of the political spectrum on his or her way through a contentious confirmation process. The Prettyman Papers can help scholars and the interested public look past the ideological walls often thrown up during a change in the Court’s structure to see the justices and those with whom they worked on their own terms as they grappled with important matters of law and society. Researchers wishing to consult this important collection may do so online or in person by contacting the Arthur J. Morris Law Library at lawarchives@virginia.edu.

Featured image: Justice Harlan at a 1965 reunion with his law clerks. Prettyman stands behind and to the right of Justice Harlan, center. From The Papers of E. Barrett Prettyman, Jr. 1944 – 1982.

[1] Prettyman, Jr. donated another collection of his papers to the Special Collections Library at the University of Maryland. See E. Barrett Prettyman papers, Special Collections, University of Maryland Libraries, http://hdl.handle.net/1903.1/1530; For more on the relationship between Prettyman, Jr. and Justice Jackson, see the Robert H. Jackson Papers, 1892-1954 in the Library of Congress, http://hdl.loc.gov/loc.mss/eadmss.ms003002.

[2] Robert H. Jackson to E. Barrett Prettyman, Jr., 8 October 1951; Jackson to Prettyman, Jr., 6 November 1951, Papers of E. Barrett Prettyman, Jr. MSS 86-5, Box 1, Special Collections, University of Virginia Law Library.

[3] Justice Jackson’s secretary to J. C. Reynolds, 18 May 1953; Contract to Clerk for Robert H. Jackson, 1 June 1954; Prettyman, Jr. to John M. Harlan, 12 November 1954, all in Ibid.

[4] Frankfurter quoted in Michael J. Klarman, Brown v. Board of Education and the Civil Rights Movement (New York and London: Oxford University Press, 2007), 67.

[5] My account of these deliberations follows James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (New York and London: Oxford University Press, 2001), 52-65; Klarman, Brown v. Board, 55-78.  See Risa L. Goluboff, The Lost Promise of Civil Rights (Cambridge and London: Harvard University Press, 2007), for an important look at the history of American civil rights law before Brown v.  Board of Education.

[6] “Memorandum by Mr. Justice Jackson” in Mark Tushnet, ed., I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases (Boston: Beacon Press, 2008), 144. As Tushnet notes, Justice Jackson’s opinion was not a dissent, but he chose to include it in his edited collection for the provocative ways that pro-segregationists might have turned it into a de facto dissent.

[7] Prettyman, Re Nos. 1-4, c. March-May 1954, Prettyman Papers, MSS 86-5, Box 2.

[8] For a good general discussion of uplift ideology see Kevin K. Gaines, “Racial Uplift Ideology in the Era of ‘the Negro Problem.’” Freedom’s Story, TeacherServe©. National Humanities Center. Accessed 10 November 2016,
http://nationalhumanitiescenter.org/tserve/freedom/1865-1917/essays/racialuplift.htm.

[9] Prettyman, Re Nos. 1-4, c. March-May 1954, MSS 86-5, Box 2.

[10] The original copy of Justice Jackson’s memo is in the Library of Congress. See “Memorandum by Mr. Justice Jackson.” Brown file, Robert H Jackson Papers. Library of Congress. The document came to light after William H. Rehnquist’s 1986 Senate confirmation hearings to become chief justice. In 1952, Rehnquist had written a memo for Justice Jackson entitled “A Random Thought on the Segregation Cases” in which he argued that “Plessy v. Ferguson was right and should be re-affirmed.” The memo became a source of contention during the confirmation hearings as Rehnquist claimed that it reflected Justice Jackson’s views and not his own. Justice Jackson’s draft concurring opinion in Brown v. Board of Education suggests otherwise. See Bernard Schwartz, A History of the Supreme Court (New York and Oxford: Oxford University Press, 1993), 289-291.

[11] Prettyman, “Notes re Segregation Decision, 15 December 1954, Prettyman Papers, MSS 86-5, Box 2.

[12] Marbury v. Madison (1803).

[13] The notes exchanged between Prettyman, Frankfurter, and Black are all dated 20 April 1955 and are in Prettyman Papers, MSS 86-5, Box 4.

[14] I have not found the specific article that Prettyman alludes to, but Walter Isaacson discuses Einstein’s candy-for-homework-help bargains in his Einstein: His Life and Universe (New York: Simon & Schuster, 2007), 439-440. Kent Olson, Head of Research Services at the UVA Law Library, worked his magic to turn up an article in The Washington Post from 1940 that mentions Einstein’s quid pro quo. See Leonard Lyons, “The New Yorker,” The Washington Post, 24 October 1940. 

[15] Prettyman to Marsha Trimble Rogers, 16 March 1989, Prettyman Papers, MSS 86-5, Box 4.

[16] Ellis v. Dixon (1955). For Prettyman, Jr.’s analysis of the case and his recommendation that the writ of certiorari be dismissed as improvidently granted see “Memorandum by Pretty Regarding Ellis v. Dixon, circa 1955,” Prettyman Papers, MSS 86-5, Box 2. 

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Jim Ambuske

Jim Ambuske is the Horatio and Florence Farmer Postdoctoral Fellow in Digital Humanities. He received his Ph.D. from UVA in 2016 and is a historian of the American Revolution and early Republic. At the UVA Law Library, Jim works in Special Collections oninterpretive content for the library's major initiatives, curricula for future courses in the digital humanities, and research projects rooted in the library's archives and manuscript holdings. His primary responsibilities at the Law Library include oversight of the Scottish Court of Session Papers project and promoting scholarly access to the library's significant holdings in early American, Virginian, and transatlantic legal history.

“It’s Time for the Lightning Round!”

The term “Lightning Round” may call to mind nerve-racking Quiz Bowls from grade school or the fast and furious stock-picking segment of Jim Cramer’s CNBC show Mad Money. In recent years, however, the lightning round has become a feature of academic conferences and symposia, especially those that involve the digital humanities. Speakers deliver quick presentations of about three minutes each to highlight the core essence of a new project, scholarly method, digital tool, or teaching resource. These rapid fire talks, like the one that I gave with Project Director Loren Moulds on the Scottish Court of Sessions Records Digital Archive at the recent DH@UVA Conference, seek to promote one’s work in ways that stimulate future conversations or potential collaborations.

The traditional academic conference mind meld usually involves a series of panels composed of three or four presenters delivering twenty-minute presentations to their peers on their latest work. They underscore Karin Wulf’s important point that conferences continue to serve as “a vital and distinctive forum for scholarly exchange.” This format is a useful way to articulate an evolving argument or new methodological intervention in some detail, creating the opportunity for the presenter to receive helpful comments or critiques of their scholarship from the audience while contributing to our body of knowledge.

It can also be difficult at times to understand the payoff of any given paper. I have seen—and given—presentations that lack focus or struggle to convey a project’s major points and an answer to the “so what?” question at the heart of any academic research initiative. We’ve all been there. We’ve all listened to and delivered them. These presentations are like Dementors for which we have no effective Patronus Charm.

Incorporating Lightning Rounds into the conference format will never ward off all of the demons, but it does offer practical and pedagogical ways to reinvigorate an intellectual gathering. This is not to say that we should abandon traditional panels altogether. It is simply to suggest that seasoning our conferences with Lightning Rounds can add some much needed flavor.

Unlike the code duello that governed Alexander Hamilton’s fateful encounter with Aaron Burr there are only a few things you need to know about a Lightning Round’s general rules:

1. Speakers typically have three minutes to talk.

2. Visual components to the presentation are limited to three slides.

3. The official Time Keeper enforces the three-minute limit with vigorous enthusiasm. Speakers are afforded a 15-second warning before their time ends. Violators are subject to public scorn. (Not really, but it is considered uncouth to go beyond your allocated time).

4. All presentation slides are packaged into one PowerPoint for ease of transition between speakers.

5. Brief live-demos of projects are fair game as well so long as the speaker stays within the three minutes.

Loren and I used the DH@UVA Conference to talk about our Scottish Court of Session Project and begin to build relationships with people who might want to use this splendid collection or help us think through the challenges of building a digital archive.

Slide 1: Scottish Court of Session Records website home page
Slide 1: Scottish Court of Session Records website home page on the UVA Law Library Special Collections website.

In a nutshell, the Law Library began to develop this project nearly two years ago under the direction of Loren and former postdoctoral fellow Randi Flaherty, now a fellow at the Robert H. Smith International Center for Jefferson Studies at Monticello. We are constructing a Drupal-based digital archive out of 64 linear feet of legal records produced by the Scottish Court of Session. The court is Scotland’s civil court of first instance and appeal. The Law Library Special Collections and Archives holds about 2,500 cases that date between 1759 and 1834. As Randi noted in the project’s early days, and what has only become clearer as we continue the work, these documents reveal hidden histories of trade, migration, and life in the British Empire in the years surrounding the American Revolution.

Repositories in Edinburgh and Aberdeen hold the largest Session collections. These holdings date back to the sixteenth century and they are indexed principally by case name. The index provides an excellent entry point into the material. It also reflects the choices that all archives face concerning how much time and energy should be allocated to heavily describing particular collections as opposed to others. The National Records in Scotland and its associated archives are charged with preserving the rich history of an ancient nation. Making records accessible for scholarly and pubic use is a daunting task that shapes decisions about the level of detail that should be provided. The team behind the Georgian Papers Project, an initiative to digitize and describe the papers of George III and his family, is wrestling with these questions at this very moment. So are we at the Law Library as we dive into our Session records in earnest. The relatively smaller size of our Sessions collection affords us the flexibility to experiment with our description process and build into this digital archive ways to collaborate with our fellow institutions in the future.

While these cases contain petitions, court briefs, and appendixes, they reveal more than contested points of law. They pull back the curtain on the everyday lives of people living in Scotland or circulating in the British Atlantic in the late eighteenth and early nineteenth centuries. They contain correspondence, census lists, voter rolls, corporate charters, shipping records, marriage contracts, and a wealth of other data, along with maps, architectural renderings, and patent designs created as part of the litigation process.

Slide 2 - Information for Elizabeth and Barbara Cunninghames (1775) and "Ground Plan and Elevation of the Distillery" (1828)
Slide 2: Information for Elizabeth and Barbara Cunninghames (1775) and “Ground Plan and Elevation of the Distillery” (1828)

This archive within an archive reveals how people used their property, how they ran their businesses, how old friends became enemies, how woman used the law to defend their interests, and how individuals established personal and economic connections that spanned an ocean and an empire. And almost all of our documents, like the collections in Scotland, feature marginalia created by their former owners that are unique to each collection.

We have developed a rich description process to extract metadata from these complex materials.

Students and staff tease out valuable information such as the people named in the documents, where they lived, their roles in cases, their relationships to each other, and to what organizations they belonged, among other data points. We are also looking at ways to augment the collection through additional research on people and organizations, and to signal to scholars the variety of sources one might encounter in these materials.

Metadata creation is currently underway in anticipation of beginning large-scale digitization in 2017. Our hope is that this project generates new questions about the British Atlantic World as it underwent a period of remarkable change. Students will handle the bulk of the actual digitization of the material. We will create master preservation TIF files for each of the documents and send them to Academic Preservation Trust, perform optical character recognition on corresponding PDF files using ABBYY, make the text searchable via Apache Solr, and generate JPG files for insertion into our Drupal database. Once finished, researchers will have the ability to download searchable PDF versions of the documents.

Slide 3 - Workflow and Technology
Slide 3: Workflow and Technology

In a practical sense, Lightning Rounds like those at DH@UVA can break up the more monotonous aspects of conference going by exposing attendees to a significant number of new ideas or projects in a very short time span. Earlier this year at the Annual Meeting of the American Historical Association in Atlanta, fourteen individuals gave DH presentations over the course of an hour. Then the panel’s organizer, Stephanie Kingsley, very kindly invited audience members with DH projects to show off their work as well. At the DH@UVA Conference, twenty-four individuals or teams gave these talks over the course of about an hour on a Friday afternoon. It was a terrific way to learn about work underway across the university, discover new potential collaborators, or think about curricular development with visitors such as Paige Normand from James Madison University.

Pedagogically, developing and giving a Lightning Round talk can help students (or senior scholars) to distill a project or argument down to its essential elements. Mentors constantly remind their graduate students to have a brief elevator speech at the ready for that moment when they encounter their intellectual heroes in a conference’s book display room or when they land an on-campus interview featuring a dozen or more individual thirty-minute meetings. Participating in a Lightning Round is a good way for graduate students to hone their pitch and gain confidence in delivering it.

The same lessons are applicable to undergraduates. In two research seminars on the American Revolution I had my students give longish prospective topic presentations to their classmates. My goal was to have them practice their public speaking skills and foster a discussion among them about their respective research interests. It did not always work out well. They often struggled to fill the allotted time, could not provide a clear sense of why their topic excited them, or why in their view it was important. In retrospect, I did not provide a reasonable structure for this assignment. In the next version of my course, I will structure these presentations as lightning talks to encourage students to think more concretely about their topic’s big picture. Hopefully, this will create a framework for class discussion that produces more questions than answers.

The Lightning Round at DH@UVA enabled us to share the Court of Session digital archive project with our colleagues in the university community in a concise way. It forced us think about what we considered to be its most important aspects and how to communicate those ideas effectively. Crucially, it exposed us to new ideas that our colleagues are employing in their own work and led to interdisciplinary conversations afterwards that are beginning to shape our thinking as we plot out the project’s next phases. These Lightning Rounds create the possibility for meaningful, perhaps even electrifying, intellectual engagement.

Published by

Jim Ambuske

Jim Ambuske is the Horatio and Florence Farmer Postdoctoral Fellow in Digital Humanities. He received his Ph.D. from UVA in 2016 and is a historian of the American Revolution and early Republic. At the UVA Law Library, Jim works in Special Collections oninterpretive content for the library's major initiatives, curricula for future courses in the digital humanities, and research projects rooted in the library's archives and manuscript holdings. His primary responsibilities at the Law Library include oversight of the Scottish Court of Session Papers project and promoting scholarly access to the library's significant holdings in early American, Virginian, and transatlantic legal history.

Scottish Session Papers and the Bar Exam

In the summer, the Law Library provides a quiet study space for recent graduates who are preparing to take the bar exam. Studying for the bar can be a stressful, all consuming experience, and one possible side effect is the tendency to see bar exam fact patterns everywhere. For those suffering from this condition, it becomes nearly impossible to unwind by watching a procedural drama (crim pro!), a soap opera (family law!), or even an infomercial (products liability!).

In the spirit of solidarity, we’ve been considering how the Law Library’s Scottish Court of Session Papers may resonate with the subjects tested on the bar exam. The library’s collection of Session Papers features case materials presented in Scotland’s highest civil court from 1759 to 1834. Despite their origins in a foreign legal system, the documents raise many issues familiar to modern bar-takers. They also feature memorable and significant historical facts.

The case of Birnie and Co. v. Weir, 3 Shaw’s Dig. 1732 [1800], aff’d [1800] 4 Pat. App. 144 (Scot.), presents a colorful example. Samuel Birnie developed a new, “British” form of a bleaching agent called potash. His company claimed in printed materials that this British potash had been “found to answer every purpose in bleaching, &c. equal to the best American pot.” Helen Weir, a bleacher, ordered several casks of the potash for her business but later refused to pay her bill; Birnie brought suit to collect on the account.

Why didn’t Helen Weir pay? According to her lawyers, the British potash contained “a radical latent defect.” Materials bleached with the potash initially looked white, but they turned a reddish or bluish color after being exposed to the air. Because the problem wasn’t immediately apparent, Weir had shipped defective products to her customers—including some whose white thread turned red after being sewn into the seam! Weir argued that the potash was unfit for the purpose of bleaching, and that Birnie should be held responsible for his warranty comparing British potash to American potash. In addition to withholding payment, she raised a claim for damages based on harm to her business and her reputation.

In response, Birnie pointed out that Weir had ordered the potash in three different shipments, all of which were consumed, and that she hadn’t complained until Birnie demanded payment. In Birnie’s view, these facts were decisive. Further, he maintained that British potash was suitable for use in certain stages of the bleaching process (just like American potash); the problem was Weir’s unskillful use of the product. Birnie also explained that the statement comparing British potash to American potash hadn’t been used to advertise the product or to establish its character. Instead, it was contained in “directions” given to customers after they purchased the potash.

Petition of William Alexander and sons (1772)
Petition of William Alexander and sons (1772)

It’s striking how the case materials in Birnie address some of the same questions posed by modern bar examiners: What constitutes a warranty? What happens if there’s a non obvious problem with the seller’s product? How should damages be calculated? The vivid facts and fascinating characters in Birnie bring these issues to life.

Another case in our collection, Colville v. Lauder, [1800] Mor. 1 (Scot.), resembles a multi subject exam fact pattern combining estate law and conflict of law issues. Again, though, the facts matter. Colville is a darker story than Birnie, recounting an ill-fated personal history set against the backdrop of British colonialism.

Shortly after marrying Jean Colville, David Lauder left Scotland under indenture to work on the island of St. Vincent. While living there, he wrote home to describe his experiences with sickness and violence (probably the Second Carib War). David was released from his indenture as a result of the war.

Hoping that a cooler climate would ease his health problems, he reserved enough money for passage to New York and sent his remaining savings to his father, William. David asked William to secure the money in case he returned to Scotland, and wrote that if he was not heard from again, “the money is either at [father’s] or my dear mother’s disposal.” During the next year, David traveled to New York and then Canada, where he was drowned while bathing in the Saint Lawrence River. James Watson, another Scotsman living abroad, wrote that he had “dived for [David] for two hours, and at last brought him up from twenty-four feet [of] water” to bury him. According to Watson, David’s effects included letters stating that he was going home the next year.

David’s death led to the multi-part legal quandary we mentioned earlier. William Lauder kept the money that David had sent him, claiming that his son’s letter was a valid will, and David’s widow Jean Colville sued to recover a share of the funds. Colville’s lawyer argued that it didn’t matter whether the letter was a will, because a choice of law question could resolve the case: Was the claim governed by the law of Scotland or the law of England (which regulated British territories)? Under Scots law, David’s widow was entitled to half of his moveable estate, notwithstanding any will. Under English law, a will could cut off her inheritance completely. Unsurprisingly, Colville argued that Scots law controlled.

Colville's Answer
Answers of Jean Colville.

The Scottish Court of Session Papers show that for hundreds of years, life has been full of messy, surprising, tragic disputes that need to be resolved using legal principles. And like the practice of law, our documents occupy a space where human stories meet the overarching principles used to organize society. The collection provides a rich historical record, insight on past approaches to the law—and evidence that, for better or worse, questions like the ones posed on the bar exam have mattered to everyday people for hundreds of years.  (Bar-takers, please take note: Despite the similarity of the issues raised, the Court of Session may not have reached the result you’d expect based on modern state law.)

Good luck to those preparing for the exam!

Published by

Kate Boudouris

Kate practiced energy and environmental law before joining the Law Library. She is a graduate of the University of Michigan and Yale Law School. Kate works at the reference desk and in Special Collections.

Shotwell’s Docket Book – A Window for 19th-Century Law Practice

In this post we highlight one of the many items in Special Collections on the history of lawyering in America, this time in nineteenth-century Ohio. In the 1980s, the UVA Law Library purchased at auction a lawyer’s docket book with case entries from 1823 to 1886 and a tin law office sign, both attributed to Cadiz, Ohio lawyer Walter G. Shotwell. Docket entries in this book typically list the case name, case actions, and receipts of payments. All entries have been indexed and offer a detailed look into the practice of law in the nineteenth century. Cataloged as Walter Shotwell’s ever since its acquisition, much of the docket book actually predates Shotwell’s birth in 1856. Some recent digging revealed that the book likely belonged to Shotwell’s father, Cadiz lawyer Stuart B. Shotwell, and to Cadiz lawyer Chauncey Dewey before that.

Shotwell docket book

Stuart B. Shotwell law office docket book, Shotwell Collection, MSS 1998-6, UVA Law Library Special Collections.

Chauncey Dewey
Chauncey Dewey, printed in Commemorative Biographical Record Harrison, Ohio (Chicago: J.H. Beers & Co., 1891), 43.

 

Just about the time the docket book begins in 1823, newly-minted Ohio lawyer Chauncey Dewey (b. 1796) formed a partnership with Steubenville lawyer and future Ohio Senator Benjamin Tappan under the firm of Tappan & Dewey. We can’t confirm that the docket book belonged to Dewey, but entries in this period make occasional reference to collaboration with Tappan on various cases. In 1836, this first section of docket entries stops. That same year, Dewey formed a new partnership in Cadiz with Edwin M. Stanton, future Secretary of War under presidents Abraham Lincoln and Andrew Johnson.[1]

 

Stuart B. Shotwell
Stuart B. Shotwell, printed in William T. Perry, ed., History of Carroll and Harrison Counties, Ohio (New York: The Lewis Publishing Company, 1921), 614.

 

 

Cadiz Sentinel, November 27, 1850.
Cadiz Sentinel, November 27, 1850. Digital version available at Chronicling America: Historic American Newspapers, Library of Congress.

When the Dewey-Stanton partnership dissolved in 1842, Dewey quickly formed a new partnership in Cadiz with Stuart B. Shotwell (b. 1819) under the firm Dewey & Shotwell, and in this year the docket book picks up again. Dewey retired from the practice in 1849 and became a leader in Cadiz’s growing banking industry while Shotwell carried on the law business under his own name.[2] An advertisement Shotwell placed in the Cadiz Sentinel in November 1850 announced that he “continues to practice in Harrison and adjoining counties” in Ohio as an “attorney at law and solicitor in chancery.” He handled legal matters ranging from land sales to money loaning to guardianships, many of which are reflected in the docket book he kept of his cases, now at the UVA Law Library.[3]
Shotwell's Law Office shingle
Shotwell Law Office Sign, Shotwell Collection, MSS 1998-6, UVA Law Library Special Collections.

 
Cadiz, Ohio Court House
Cadiz, Ohio Court House, from Jacob Jarvis and H. Anderson, “Map of Harrison County, O.” (Cadiz: Jacob Jarvis, 1862). Digital version available at Library of Congress.

Shotwell’s 1850 newspaper advertisement also announced that he had moved his office to Kilgore’s Corner on Market Street in Cadiz. Here, Shotwell may have installed the tin sign that accompanies the docket book and reads “Shotwell’s Law Office.” Adding mystery to this artifact is a painted-over “Wm.” that precedes “Shotwell’s.” We know little about the sign’s history, but Stuart Shotwell’s brother, William Shotwell, Jr., a lawyer in Butler County, Ohio, died in 1849, just as Stuart was setting up his new Cadiz law office.[4]
Walter G. Shotwell
Walter G. Shotwell, printed in William T. Perry, ed., History of Carroll and Harrison Counties, Ohio (New York: The Lewis Publishing Company, 1921), 613.

Walter G. Shotwell, printed in William T. Perry, ed., History of Carroll and Harrison Counties, Ohio (New York: The Lewis Publishing Company, 1921), 613.

Shotwell remained in business as a Cadiz lawyer until the late 1880s, where the docket book ends. His son Walter G. Shotwell trained in his law office beginning in 1878 before Walter’s admission to the Ohio bar. In 1880, Walter opened his own law office in Cadiz where this collection was likely once stored.[5]

The Shotwell collection is open for research at the UVA Law Library. Interested researchers can contact Special Collections at lawarchives@virginia.edu. We would love to hear from anyone with additional knowledge of these materials.

For related archival collections see:

Shotwell Family Papers, Ohio Historical Society

Shotwell Family Papers, Harrison County Historical Society

Benjamin Tappan Papers, Library of Congress (also on microfilm)

 

– Randi Flaherty, Post-Doctoral Fellow in Digital Humanities 

_____

[1] Commemorative Biographical Record Harrison, Ohio (Chicago: J.H. Beers & Co., 1891), 42-47, 610.

[2] Id, 47, 758; Henry Howe wrote that Stuart B. Shotwell once studied under Edwin Stanton in Cadiz.  See Henry Howe, Historical Collections of Ohio in Two Volumes, Volume 1 (Cincinnati: G. J. Krehbiel & Co., 1902), 894-896.

[3] The Cadiz sentinel. (Cadiz, Ohio), 27 Nov. 1850. Chronicling America: Historic American Newspapers. Lib. of Congress. <http://chroniclingamerica.loc.gov/lccn/sn84028793/1850-11-27/ed-1/seq-3/>

[4] Commemorative Biographical Record Harrison, Ohio, 758.

[5] Id.

Published by

Randi Flaherty

Randi Flaherty was Postdoctoral Fellow in Digital Humanities (2014 to 2016) for the Arthur J. Morris Law Library Special Collections Department.

Transatlantic Ripples of the 1765 Stamp Act

On the 250th anniversary of the Stamp Act, UVA Law Library staff opened an uncataloged collection of Scottish Court of Session papers and unwittingly discovered new materials on this momentous event in American history. The case of Scrimgeour & Son v. Alexander & Sons quickly caught our eye since North Carolina and Virginia appeared on the first pages of case documents. Stamp Act protests rocked North Carolina’s Cape Fear River in 1765 and 1766, halting trade and trapping the Scottish ship Duke of Athol in Wilmington. In a subsequent suit before the Court of Session, the Scottish merchants who owned and freighted the ship quarreled over who would pay for the vessel’s lengthy delays. The case summaries and petitions they drew up now form part of the Court of Session Collection at the UVA Law Library. The wealth of detail included in these documents provides a new perspective on the Stamp Act, revealing the disruptive power of colonial protests on both a local and transatlantic level.

Petition of Jo. Maclaurin
Jo. Maclaurin, “Unto the Right Honourable, the Lords of Council and Session, the Petition of William Alexander and Sons Merchants in Edinburgh,” January 15, 1772, Scottish Court of Session Papers, UVA Law Library.

John Cowan, captain of the Duke of Athol, found himself caught in the midst of this imperial crisis in October 1765 with the Stamp Act set to take effect on November 1 and his ship readying to depart North Carolina for Scotland. Cowan needed a paper clearance to avoid seizure by the British navy patrolling the entrance to the Cape Fear River. The Stamp Act placed a new tax on these customs forms, as on all newspapers, legal documents, and most printed papers. Cowan would owe four pence per sheet, and an embossed paper stamp would be affixed to the clearance as proof of payment. These impending stamp duties drew outrage from American colonists, however, who targeted for public attack anyone who accepted stamps.
An Act for Granting and Applying Certain Stamp Duties
An Act for Granting and Applying Certain Stamp Duties, and Other Duties, in the British Colonies and Plantations in America (London: Mark Baskett, 1765), 282. Digital copy available at the Princeton Digital Repository.

Uprisings against the Stamp Act broke out just one day after Cowan’s arrival in Wilmington, along the Cape Fear River. On the night of October 19, 500 people converged near the Wilmington court house to hang an effigy of an “Honourable Gentleman” who had voiced support for the new tax. Protestors visited every house in Wilmington and gathered all of the town gentlemen. Once assembled, the crowd burned the effigy in a bonfire of tar barrels and gave toasts to “Liberty, Property, and no Stamp-Duty.”1

Cowan was practiced in the unpredictability of trade, and these Stamp Act protests were one delay among many that the Duke of Athol had already experienced in its transatlantic journey. Owned by the merchant house of James Scrimgeour & Son in Borrowstounness, Scotland and freighted by Edinburgh merchants Alexander & Sons, the ship had originally sailed for Grenada—after considering a trip to Maryland and Virginia— with a cargo of herring, staves, and green linens. When no sugar was available by the time of her arrival, the Grenada agent for Alexander & Sons finally convinced then-captain William Dicks to sail instead for Carolina after supplying Dicks with a letter of indemnification “to remove your scruples” for the diversion.2 Dicks died on the next passage, elevating mate John Cowan to ship master. Cowan would receive two additional guineas for a hat from Alexander & Sons, “providing he behaves properly, and gives the proper assistance to our people for procuring dispatch.”3 He had believed trade in Carolina would be quick after his arrival there. On October 19, 1765, mere hours before the first protests commenced, he wrote to Scrimgeour & Son that he was hopeful the vessel would depart for Scotland no later than the end of November.4

Plan of the Town of Wilmington in New Hanover County North Carolina
Claude Joseph Sauthier, “Plan of the Town of Wilmington in New Hanover County North Carolina, 1769, British Library, digital version at the Norman B. Leventhal Map Center.

Growing popular unrest destroyed Cowan’s hope of a timely departure, and he took action to protect his interest against the certain disappointment of the merchants back in Scotland. On October 30, with the ship still waiting for a return cargo, Cowan took a legal protest against “all concerned” for the delays the ship had already suffered and for future delays Cowan expected from the Stamp Act.5 Protesters gathered again in Wilmington on October 31 and processed through the town with a coffin containing an effigy of Liberty. Accompanied by doleful town bell, the burial march eventually proclaimed that the effigy’s pulse still beat. They returned Liberty to the town center to sit aside a bonfire that burned through the evening. Shortly after the Stamp Act went into effect on November 1, hundreds surrounded the home of the region’s stamp collector and compelled his resignation. With no officer to accept the stamps when they arrived in North Carolina on November 28, the stamps remained aboard a British naval vessel in Brunswick.6
 

In mid-December, stamps remained unavailable as the Duke of Athol finally began loading a cargo of tar. When William Tryon, the newly installed North Carolina Governor, arrived in Wilmington on December 19 to publically announce his commission—a spectacle met by public protest—Cowan took the opportunity to join with other ship captains and petition Tryon for legal clearances. Tryon returned the petition and directed the captains to customs officials. Customs officers referred the captains back to the Governor. Both refused to grant clearances.7 Amid the standstill, Cowan remained in port with a full cargo of tar finally on board the Duke of Athol. Meanwhile the naval blockade in the Cape Fear River seized three arriving merchant ships for sailing with unstamped papers.

Plan of Johnston Fort at Cape Fear
John Collet, “Plan of Johnston Fort at Cape Fear With the project of one Covert way with places of Arms,” 1767, Clements Library, University of Michigan.

As customs officials dithered over the seized ships, Attorney General Robert Jones, Jr. released a statement that these vessels were liable to prosecution due to the “great neglect” of their captains.8 Jones outlined proper procedures for ship captains to follow to avoid forfeiture at trial, and Cowan immediately followed suit. On January 29, with a notary public and a witness, he proceeded to the Wilmington customs collector, offered the proper fees, demanded a clearance, but heard in reply that the collector could only provide him with common, unstamped papers.9 These efforts might protect Cowan’s ship from condemnation, but not from seizure, and trials would be carried out in faraway Halifax, Nova Scotia. “I am now lying here loaded this four weeks,” Cowan wrote to Scrimgeour on January 31, 1766, “but cannot get out for want of a proper clearance.”10
Answers for James Scrimgeour and Son
Alexander Lockhart, “Answers for James Scrimgeour and Son, merchants in Borrowstounness, to the Petition of Mess. William Alexander and Sons, merchants in Edinburgh,” April 24, 1769, Scottish Court of Session Papers, UVA Law Library.

In February 1766, new armed protests broke out around the Cape Fear River over the seized ships, forcing troops at nearby Fort Johnston to spike their guns before they could be turned on naval vessels. A crowd of nearly 700 men, most of them armed, compelled all public officers, including the customs collector, to swear that they would not uphold the Stamp Act, and the river opened for trade without stamped paper.11 On March 18, 1766, Parliament repealed the Stamp Act, and Cowan, who may have heard word that a bill to repeal had come before that body, departed Wilmington on March 31, 1766. On April 15, the Duke of Athol cleared Cape Fear for Scotland and arrived at Leith that summer.
Leith, Scotland
Leith, Scotland, a section from John Laurie, “A Plan of Edinburgh and Places Adjacent From an Actual Survey,” 1766, National Library of Scotland.

Scottish Court of Session Papers at UVA Law

Contained within these legal documents from the highest level of Scottish courts are rich details about how people lived, traded, farmed, managed risk, and moved through the 18th- and 19th-century British Empire. Cowan’s story is one of many contained within the UVA Law Library’s Court of Session collection of printed case materials presented before the Court from 1759 to 1834. As a court of appeal and of first instance and the highest civil court in Scotland at the time, the Court of Session held jurisdiction over contract and commercial cases, matters of succession and land ownership, divorce proceedings, intellectual property and copyright disputes, and contested political elections. In addition to petitions and memorials, many of which include annotations, the collection includes color maps and copies of correspondence, wills, financial accounts, and census reports. The Court provided copies of these papers to all litigants and judges for each case, and it was common practice in this period for lawyers and judges to retain these papers for their personal library or legal practice. Session papers thus exist in various collections around the world, with complete copies at the Scottish National Archives and Signet Library. In 1767, James Boswell, renowned Scottish biographer and one-time lawyer before the Court aptly wrote that these case materials would provide researchers with “a treasure of law reasoning and a collection of extraordinary facts.”12

The rich historical and biographical information contained within these records is one of the main reasons the UVA Law Library began cataloging this 2,000-item collection in 2015. Scrimgeour case files, for example, include lengthy sections on legal reasoning and point to the legal texts on which parties framed their arguments (including Molloy, De jure maritimo et navali and Rhodes, Treatise of the Dominion of the Seas, both available at UVA Law Special Collections), but the depth of detail these documents provide on people, life, and law in the 18th- and 19th-century British Empire makes them promising new sources for multidisciplinary research. The Stamp Act delay is just one episode among many from the ship’s broader journey from Borrowstounness, Scotland, to Grenada, St. Christopher’s, North Carolina, and back to Leith that these documents illuminate. Early modern legal materials that originated as manuscripts, like these Session Papers, rarely exist in printed forms that can be so easily harvested for digital searching, visualization, and analysis. Further, approximately half of the documents in the UVA collection originated from cases not reported in contemporary printed digests.

Print from A General Treatise of the Dominion of the Sea
Print from A General Treatise of the Dominion of the Sea: And a Compleat Body of the Sea-Laws, 2nd edition (London, 1709).

In 2017, the UVA Law Library hopes to digitize this entire collection for free, open access on the web. For questions about this collection contact Special Collections at lawarchives@virginia.edu.

– Randi Flaherty, Post-Doctoral Fellow in Digital Humanities  


  1. North Carolina Gazette, November 20, 1765, printed in William S. Powell, ed., The Correspondence of William Tryon and Other Selected Papers, Volume 1, 1758-1767 (Raleigh: North Carolina Department of Cultural Resources, Department of Archives and History, 1980), 162.

  2. Alexander Lockhart, “Answers for James Scrimgeour and Son, merchants in Borrowstounness, to the Petition of Mess. William Alexander and Sons, merchants in Edinburgh,” April 24, 1769, Scottish Court of Session Papers, UVA Law Library [hereafter cited as SCOS], 9-10.

  3. Last quote from Alexander & Sons to James Scrimgeour & Son, March 23, 1765, printed in Jo. Maclaurin, “Unto the Right Honourable, the Lords of Council and Session, the Petition of William Alexander and Sons Merchants in Edinburgh,” January 15, 1772, SCOS.

  4. John Cowan to James Scrimgeour & Son, October 19, 1765, printed in “Proof in the Process, Mess. James Scrymgeour and Son, Merchants in Borrowstounness, Against Mess. William Alexander and Sons, Merchants in Edinburgh,” 1771, SCOS, 6-7.

  5. Lockhart, “Answers,” 19-20.

  6. Lindley Butler, North Carolina and the Coming of the Revolution, 1763-1776 (Raleigh: North Carolina Department of Cultural Resources, Department of Archives and History, 1976), 20.

  7. Lockhart, “Answers,” 19-20. For Tryon’s arrival in Wilmington see accounts in Powell, Correspondence, 169-171, 218-219.

  8. Robert Jones to William Dry, February 3, 1766, printed in Lockhart, “Answers,” 20-21.

  9. Lockhart, “Answers,” 21.

  10. Printed in “Proof,” 7.

  11. William Tryon to Henry Seymour Conway, February 25, 1766, printed in Powell, Correspondence of William Tryon, 254-259.

  12. Quoted in W.H. Bond and Daniel Whitten, “Boswell’s Court of Session Papers: A Preliminary Checklist,” in W.H. Bond, ed, Eighteenth-Century Studies in Honor of Donald F. Hyde (New York: The Grollier Club, 1970), 232.

Published by

Randi Flaherty

Randi Flaherty was Postdoctoral Fellow in Digital Humanities (2014 to 2016) for the Arthur J. Morris Law Library Special Collections Department.

Professor Scalia Administered Justice on the Football Field, Too


Recently uncovered photographs
from the U.Va. Law School archives reveal a little-known phase in the legal career of recently deceased U.S. Supreme Court Justice Antonin Scalia: football official. When the U.Va. law students of the Virginia Law Weekly and the Virginia Law Review kicked off their annual gridiron football contest in October 1970, then-U.Va. Law professor Scalia officiated from the sidelines with an eye on the field and his mind on the rulebook. This was the twelfth meeting of the two publications in this football classic that began in 1953 and always took place at the U.Va. Mad Bowl. (At the time the Law School was housed in Clark Hall on Central Grounds.) Two law school professors officiated over each contest, and the losing team owed the winner one keg of beer.

Go Weakley!

Weeks of witty trash talking had preceded this annual “gridiron juggernaught” in 1970, as it did in most years. A Law Weekly article wondered if anything could stop the “avalanche of rushers in the Weekly defense” while the Law Reviewers were still trying to “get their ersatz football players cum bookworms to do their calisthenics in cadence.” (Virginia Law Weekly, October 9, 1970).

The contest that Scalia observed on this October day was not pretty and ended in a 38-0 romp by the Law Weekly. Showing no mercy to their downtrodden competitors in the game’s write-up the next week, the Law Weekly staff reveled in their triumph:

“Spearheading a deadly passing attack, Jim ‘Needle’ Addison moved the Weekly’s mighty gridiron machine to the highest score in the history of the annual publications classic.” (VLW, October 16, 1970)

Antonin Scalia enjoying a moment on the sidelines.
Antonin Scalia enjoying a moment on the sidelines.

Throughout the game, Weekly quarterback Addison connected for numerous lengthy touchdown passes and a “fantastic 40-yard run right down the right sidelines which left the Reviewers hopelessly gasping [sic] their blue books.” (VLW, October 16, 1970) 

Professor Scalia would prove critical to the Law Review’s single moment of football glory. In the first half, an interception put a momentary stop to the Law Weekly’s romp through the Reviewer’s defense. But momentary this glory would remain. With Professor Scalia acute to the action from the sideline, the Reviewers watched as their triumph was “nullified by the officials under the keen eye of ‘Codebook’ Scalia for fielding too many players.” (VLW, October 16, 1970)

 – Randi Flaherty and Loren Moulds 

 

Full-sized images are available at http://archives.law.virginia.edu/objects/gridiron-contest-1970 and http://archives.law.virginia.edu/objects/scalia-referees-gridiron-contest

 

Published by

Randi Flaherty

Randi Flaherty was Postdoctoral Fellow in Digital Humanities (2014 to 2016) for the Arthur J. Morris Law Library Special Collections Department.

The Last Will and Testament of Mariner Joseph Bonner

In February 1745, the British ship Hardwicke lay anchored off Batavia (now Jakarta), and mariner Joseph Bonner fell ill. After eighteen months at sea, Bonner and his shipmates aboard the 498-ton Hardwicke had traveled across the world from England to China and now to the Java Sea on a trading voyage for the British East India Company. The journey had been harrowing, which had convinced the Hardwicke’s commander, John Hallett, to stay at Batavia until the start of the next season. Known as a graveyard for Europeans in this period, Batavia provided little respite for Bonner, who may have fallen victim to one of the city’s regular outbreaks of malaria. “Being sensible of the uncertainties of this present life,” Bonner began drafting his last will and testament.

Last Will and Testament of Joseph Bonner, 1745, U.Va. Law Library.
Last Will and Testament of Joseph Bonner, 1745, U.Va. Law Library.

Bonner’s estate was simple. To his shipmate John Whittridge, Bonner left all of his ship-board belongings: “my Cloathes, Bedding and wearing apparell which I am or shall be possessed of at the time of my Decease.” To his parents, Joseph and Elizabeth, Bonner left all of his Hardwicke wages. In the presence of John Hatfield and the Hardwicke’s Chief Mate Carteret Le Geyt, Bonner signed his one-page will. Compared to the strong and smooth signatures of his witnesses, Bonner’s signature scratches across the page, the trailing “r” at the end perhaps indicative of one weakened by illness.

This single manuscript, donated in 1992 to the University of Virginia Law Library, was recently digitized by the Law Library’s Special Collections staff. When we came across it in our collection, we wondered about the history behind this unassuming document. Using textual clues and a variety of online research tools, including the Social Networks and Archival Context prototype created by U.Va.’s Institute for Advanced Technology in the Humanities, we quickly learned that Joseph Bonner’s will was written in the waters off modern-day Indonesia, 10,000 miles away from its current home at the U.Va. Law Library. Despite its simplicity, this document offers a window into the hazards of eighteenth-century seafaring and the vast maritime geography in which mariners like Bonner lived and worked.

A Ship’s Troubled Voyage

“East Indies and India,” 1732, Herman Moll, David Rumsey Map Collection.
“East Indies and India,” 1732, Herman Moll, David Rumsey Map Collection.

 

The Ship Hardwicke entered into the service of the British East India Company in December 1742 and departed Portsmouth, England six months later for India and China. Britain was at war with Spain at the time, which heightened the risks of trade in the sea lanes on which Bonner and the Hardwicke planned to travel. The EIC had directed the ship first to Bombay or Surat, where it would pick up items appropriate for the China trade, namely cotton, pepper, sandalwood, olibanum (frankincense), and the remainder in silver. The Hardwicke indeed sailed to India by the usual route, stopping at the Cape of Good Hope in October 1743 and then the Maldives. In March 1744 it reached Bombay before continuing its journey east.

Trouble began in July 1744 during a stop at the Ladrone Islands south of modern-day Hong Kong when the Hardwicke heard news of armed Spanish ships from Manila patrolling the passage to Canton, China (now Guangzhou). Consequently, Hallett sailed the ship to Amoy (now Xiamen), a port to the north of Canton that specialized in the tea trade. The Hardwicke’s supercargoes went ashore to request Amoy protection from the Spanish and permission to trade, but Amoy officials refused the Hardwicke entry into the inner harbor unless the ship relinquished its guns and ammunition. Feeling ill-treated, Hallett sailed to Malacca in modern-day Malaysia and then to Batavia. This was monsoon season, and Hallett reported that the passage had been “very hazardous.” Here the ship remained until calmer winds and waters returned, and here Bonner grew more and more infirm.

“The Castle of Batavia,” c. 1661, Andries Beeckman, Rijksmuseum.
“The Castle of Batavia,” c. 1661, Andries Beeckman, Rijksmuseum.

 

The Hardwicke did venture back to China from Batavia and trade in the Pearl River beginning in the summer of 1745. On its voyage home, filled with a lucrative return cargo, the Hardwicke sailed in convoy with other EIC vessels. England had declared war on France in 1744, adding to the peril on the high seas. News of French ships in the same area of the Malacca straights put this EIC convoy at risk, and they sailed home under the protection of two British naval vessels. In May 1746 the Hardwicke was at St. Helena, and in August 1746 she was safely back in England.

The Fate of Joseph Bonner

Did Joseph Bonner survive his illness to carry on with the voyage? Further research beyond digitized, open access materials — at the British Library or elsewhere — will have to solve the puzzle. For now, as we await an answer to this history mystery, we will preserve Bonner’s (last?) will and testament for further research and welcome the diversity of time, space, and subject it brings to our legal history archive.

For Further Research:

Journals, Ledgers, Pay Books, and Receipt Book of the Hardwicke, L/MAR/B/568, British Library: Asian and African Studies Room.

Orders and Instructions to Lascoe Hide, Henry Hadley and Richard Pinnell, Supercargoes of the Hardwicke, E/3/109 ff 5-9, British Library: Asian and African Studies Room.

List of Goods to be provided for the Hardwicke at Canton, E/3/109 f 10, British Library: Asian and African Studies Room.

List of the packet sent with the Supercargoes of the Hardwicke, E/3/109 f 11, British Library: Asian and African Studies Room

Footnotes

1. Will and Testament of Joseph Bonner on the board the Ship Hardwicke, February 15, 1745, University of Virginia Law Library. Digital copy available at http://archives.law.virginia.edu/records/mss/92-3/digital/12741; Register of Ships, Employed in the Service of the Hon. The United East India Company, from the Union of the Two Companies, in 1707, to the Year 1760 (London: Charles Hardy, 1800), 14.
2. Will and Testament of Joseph Bonner on the board the Ship Hardwicke, February 15, 1745, University of Virginia Law Library.
3. Much of the location and date information about the Hardwicke’s voyage comes from this site: “Hardwicke (1) (Ship: active 1740-1754),” Social Network and Archival Context, Institute for Advanced Technology in the Humanities, University of Virginia. http://socialarchive.iath.virginia.edu/ark:/99166/w6qp5tm4 (Accessed October 29, 2015)
4. Daily Post (London), January 1, 1743.
5. Daily Post (London), June 6, 1743, June 9, 1743, February 2, 1744; The supercargoes for the Hardwicke were Lascoe Hide, Henry Hadley, and Richard Pinnell. Materials Towards A Statistical Account of the Town and Island of Bombay in Three Volumes, Volume II: Trade and Fortifications (Bombay: Government Central Press, 1894), 95.
6. Records of Fort St. George: Diary and Consultation Book of 1745 (Madras: Government Press, 1931), 6 (Digital copy available at https://archive.org/stream/diaryconsultatio1745madr#page/n3/mode/2up); For further description of the Hardwicke’s journey to Amoy, see Hosea Ballou Morse, The Chronicles of the East India Company trading to China 1635-1834 (Cambridge: Harvard University Press, 1929), 2-4.
7. H.W. Richmond, The Navy in the War of 1739-48, Volume I (Cambridge: University Press, 1920), 186. (Digital copy available at https://archive.org/details/navyinwarof01rich); Daily Post (London), August 27, 1746.

Published by

Randi Flaherty

Randi Flaherty was Postdoctoral Fellow in Digital Humanities (2014 to 2016) for the Arthur J. Morris Law Library Special Collections Department.

Pope Clement V’s Constitutiones a Rare Treasure

Pope Clement's Constitutiones
Pope Clement’s Constitutiones, published in 1481, is one of our rarest books.

Recent shelf shifting here at Special Collections gave us the chance to appreciate once again the oldest item in our collection, Pope Clement V’s Constitutiones, published in 1481. Given its importance to medieval canon law and its interesting binding, we decided this book of paper letters (decretals) deserved its own blogosphere showcase. Although Pope Clement V originally compiled these texts in 1314, his successor, John XXII, ultimately circulated the collection with his own promulgation letter. Printer Peter Drach published this copy in the German city of Speyer, and it includes commentary (gloss) by prominent 14th-century canonist Johannes Andreae. As a piece of incunabula, meaning it was printed with moveable type before 1500, Constitutiones is remarkable today for its construction as much as for its content.

In the style of fifteenth-century German printing, Constitutiones is bound between two wooden boards covered in quarter leather, likely pigskin. Stamps of the Habsburg coat of arms decorate the leather down the front and back of the book. Still firmly attached to the boards are two metal clasps, though they no longer hold the book shut. A vellum label with the book’s title has been glued to the spine.

Clasp holding the book shut
One of the two clasps that once held the book shut.
Constitutiones is bound between two decorated wooden boards.
Constitutiones is bound between two decorated wooden boards.
Stamps of the Habsburg coat of arms.
Stamps of the Habsburg coat of arms.
Inside the front cover
Inside the front cover: Manuscript pages used in binding.

A look inside reveals how the bookbinder reused manuscript papers to wrap gatherings of the book’s pages. Written entirely in Latin, commentary on the outer margins surrounds the decretals on the inner margins. Other copies of Constitutiones, like this copy fully digitized by the Munich Digitization Center, include beautiful decorations on drop letters and in the margins.

Constitutiones-spread
Constitutiones is one of the rarest books in our collection.

Constitutiones is one of the rarest books in the U.Va. Law Library’s collection. According to the British Library, only three other copies exist in the United States (at Harvard, Yale, and the Library of Congress). This copy came to the U.Va. Law Library as a gift from Neill H. Alford, Jr. (Law ’47; Percy Brown, Jr. Professor of Law), who purchased Constitutionales in Paris in the mid-twentieth century and donated his valuable collection of antiquarian law books to the U.Va. Law Library in the 1980s.

Interested researchers can review Constitutiones or other books in the U.Va. Law Library’s large collection of rare and historical legal texts by making an appointment to visit Special Collections.

For additional information on Constitutiones:

See entry for “Clementines” in Medieval and Early Modern Jurists: A Bio-Bibliographical Listing: http://faculty.cua.edu/pennington/1298a-z.htm

For other recent posts about rare books and their construction:

Yale University Library: Medieval Manuscripts: Bookbinding Terms, Materials, Methods and Models

The Conversant blog of the Phillips Library at the Peabody Essex Museum: “Marbled Papers and their Use in Rare Books”

Tumblr page showcasing digital collections at Harvard’s Houghton Library: http://houghtonlib.tumblr.com/

– Randi Flaherty 

Published by

Randi Flaherty

Randi Flaherty was Postdoctoral Fellow in Digital Humanities (2014 to 2016) for the Arthur J. Morris Law Library Special Collections Department.

18th Century Dictionary Returns to U.Va.

18th Century Dictionary
Photo: Title page to the 1766 edition of Malachy Postlethwayt’s Universal Dictionary of Trade and Commerce.

In 1766, British economic writer Malachy Postlethwayt argued that the grand commercial ambitions of the British empire started with good bookkeeping, proper paperwork, and some knowledge about people beyond London. To equip eager young traders to grow British overseas commerce, and by extension the royal revenue, after the 1763 Treaty of Paris, Postlethwayt penned a new edition of his Universal Dictionary of Trade and Commerce, rich with explanations of the mechanics of trade.[1] The Law Library is thrilled to add Volume 1 of this eighteenth-century guide to the globe to its Special Collections as part of the Library’s ongoing project to acquire duplicate editions of the law books listed in the U.Va. Library Catalogue of 1828. Both volumes of Postlethwayt’s Dictionary formed part of the U.Va. Library’s original collections on mercantile law.

For the modern reader, as for the young U.Va. student perusing this reference in the University library in the 1820s, Postlethwayt’s Dictionary explains the vocabulary, products, and practices of eighteenth-century commerce from the London Custom House to the north African caravan.[2] Curious how bills of exchange worked? Check the section on Banking. Wondering about the pearl fishery off of southern India? See the section on East India Trade. Pondering whether eighteenth-century British consumers are likely to continue their new practice of coffee drinking? See Postlethwayt’s thoughts under Coffee. (Spoiler: Yes. Postlethwayt praised coffee for clearing the head and relieving sleepiness, though he warned that drinking too much in one day would surely hazard the “repose of the night.” A stickler for the good stuff, Postlethwayt advised that “coffee which is newly ground has the most virtue.”)

A chart for arbitrating currency exchanges among the major commercial centers of Europe
Photo: A chart for arbitrating currency exchanges among the major commercial centers of Europe. Postlethwayt wrote that traders should be “thoroughly informed” in this branch of commerce.

With commerce always enmeshed in matters of geography, language, and especially law, Postlethwayt’s Dictionary offers a detailed look not only into the minutiae of trade—swearing oaths at the Custom House, filling out double-entry ledgers—but also the lives of those who engaged in or supported trade around London and around the globe. Postlethwayt had specific advice for British merchants who often found themselves entangled in legal disputes: find an honest, able, and experienced attorney at law. Attorneys were gentlemen and scholars, Postlethwayt wrote, who started clerkships at sixteen, understood Latin and French, knew their way around ancient deeds, wrote well, and could unravel any business account laid before them.

At four inches thick, Volume 1 of Postlethwayt’s Universal Dictionary covers letters A to K and adds to the U.Va. Law Library’s rich collections on the historical practice of law. Special Collections hopes to add the second volume to its inventory in the future.

For research in this or any item at the Law Library Special Collections, see our webpage or contact Special Collections at lawlibref@virginia.edu.

– Randi Flaherty 

_______

References:

Peter Groenewegen, ‘Postlethwayt, Malachy (1707–1767)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2013 [http://www.oxforddnb.com/view/article/22599, accessed 28 Oct 2014]


[1] Malachy Postlethwayt and Jacques Savary des Brûlons. The Universal Dictionary of Trade and Commerce: With Large Additions and Improvements, Adapting the Same to the Present State of British Affairs in America, Since the Last Treaty of Peace Made in the Year 1763. With Great Variety of New Remarks and Illustrations Incorporated Throughout the Whole: Together with Everything Essential That Is Contained in Savary’s Dictionary: Also, All the Material Laws of Trade and Navigation Relating to These Kingdoms, and the Customs and Usages to Which All Traders Are Subject. (London: H. Woodfall, 1766.)

[2] Postlethwayt’s Universal Dictionary provided a British perspective on these topics, though Postlethwayt also borrowed liberally from a previous dictionary by the Frenchman Jacques Savary des Brûlons.

Published by

Randi Flaherty

Randi Flaherty was Postdoctoral Fellow in Digital Humanities (2014 to 2016) for the Arthur J. Morris Law Library Special Collections Department.