Law Library Uncovers Hidden Legal Histories with Scottish Court of Session Digital Archive

Alleged Copyright Theft by Founders of Encyclopaedia Britannica Among Stories Revealed

Thirty years after the University of Virginia School of Law acquired a trove of legal documents from Scotland’s Court of Session, the supreme legal court there, the Law School’s Arthur J. Morris Law Library is building a digital archive and reaching out to partners “across the pond” to open these legal history materials to scholars and the public.

When complete, the archive will provide users with access to the previously hidden histories of people living through an era of profound change.

Last week, the Special Collections team traveled to Edinburgh, Scotland, to present the digital project at the annual meeting of the Scottish Records Association and to meet with colleagues at the University of Edinburgh Library, who are pursuing a similar initiative.

The Dome Room in the New Register House at the National Records of Scotland holds documents, including legal records, that date back to 1553. Photo courtesy of Special Collections.

The Court of Session, as Scotland’s highest civil court, hears cases dealing with divorce, real estate, bankruptcy, intellectual property, debt and a variety of other civil matters. In the mid-1980s, the Law Library purchased a collection of documents related to about 2,500 cases heard before the court between 1757 and 1834.

The University of Edinburgh Library, the National Library of Scotland, the Faculty of Advocates Library and the Signet Library hold more than 4,000 volumes of the court’s papers combined.

Unlike the handwritten manuscripts produced by English or American courts from this period, the Court of Session did its work in print. Memorials, petitions and even evidence were given to the court in this form. Today, the clear type makes the collection more accessible to researchers and easier to digitize.

Users will be able to search through a single document or the entire collection, peruse the rich data provided for each case and download documents for free.

War, revolution and the Enlightenment transformed the lives of 18th and 19nth century peoples living around the Atlantic basin. These documents illuminate the lives of Scottish merchants trading with colonial Virginia tobacco planters; provide insight into the transatlantic slave trade; show how Scottish women defend their limited legal rights; and trace conflicts between literary figures and their publishers, among other stories.

For example, the copyright dispute at the heart of Clark v. Bell (1804) opens an entry point into the early history of the Encyclopedia Britannica.

Among the sources creators Colin Macfarquhar and Andrew Bell consulted was work by James Clark, a veterinarian and King George III’s farrier in Scotland. In 1801, Clark sued Bell (Macfarquhar having since died) for copyright infringement under the Copyright Act of 1710.

Clark alleged that the two men had incorporated verbatim portions of his two treatises on equine care without his consent. After “the best and most valuable parts of them are inserted in the Encyclopaedia Britannica,” publishers refused to issue new editions of his work, Clark said. He charged that Bell and Macfarquhar had violated the Copyright Act, harming his business interests and reducing his potential income. The court agreed.

The Lords of Session (as the judges are called) sided with Clark and later affirmed judgement on appeal.

 
Joseph Marshall, head of special collections and the Centre for Research Collections at the University of Edinburgh Library, shows an example of a bound volume of documents held in the library’s collection. Photo courtesy of Special Collections.

What Clark v. Bell offers is a legal window into the creation of one of the most iconic literary productions of the past three centuries. The case documents provide details on the process Bell and Macfarquhar used to assemble the Encyclopaedia’s early editions — and suggest where to look next. (The record makes it clear that Bell and Macfarquhar faced similar accusations from other authors.)

Collaborating with the Edinburgh-based coalition will allow the Law Library’s Special Collections team to continue to bring rich legal materials like these to light as we trade knowledge and expertise with our colleagues abroad.

It will also enable the two groups to reconstruct case histories in digital space, making it easier for scholars, genealogists, bibliophiles and law students to access a complete case record.

Compiled in leather-bound volumes (like similar collections in Scotland) at one point, the Law Library’s documents were removed from their bindings sometime after 1835. They rest now in archival boxes that consume 64 feet of shelf space in the Library’s Special Collections unit — as we steadily continue to digitize their contents.

The Law Library is preparing to release its first batch of documents. Look for them online soon. For more information on the project, including how you can support it, contact archives@law.virginia.edu.

(This article was first published on the University of Virginia School of Law website on November 17, 2017.)

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.

What We Talk About When We Talk About Legal Texts

What comes to mind when you think about the texts that law students read? Most of the time, it’s cases, statutes, contracts, and law review articles. Sometimes, it’s texts on legal theory. But if you asked Thomas Jefferson, in order to understand the law, students needed to read widely in everything from natural science to literature.

Jefferson and his eighteenth- and early nineteenth-century contemporaries didn’t see law as an isolated discipline. Rather, they considered it to be one branch of philosophy (or “reason”), which joined history (or “memory”) and the fine arts (or “imagination”) as the three “faculties” of learning. In “philosophy,” law stood alongside mathematics, ethics, and religion. This breakdown of “faculties” was inspired by the English philosopher, Francis Bacon, whose 1605 book, The Advancement of Learning, shaped the ideas of Jefferson and many other Enlightenment-era thinkers.

In early American legal education, practical training was just one of three components. The other two were theoretical knowledge (note only of the law but also how individuals and societies related to one another) and a general education that often included languages, philosophy, and history. The goal was to train good lawyers but more importantly, craft young men into well-rounded, virtuous citizens.[1]

William Wirt, U.S. Attorney General for James Monroe and John Quincy Adams.

The courses that William Wirt, attorney general under James Monroe and John Quincy Adams and a close friend of Jefferson, advised law students to take reflected this view. In 1822, Wirt wrote Hampton L. Carson about his legal education. Read William Blackstone, Wirt urged, as “the best introductory author,” who can offer “a clear and comprehensive view of [the law’s] present state.” But don’t stop there, Wirt added. In addition to statutes, rulings, and natural law, Wirt encouraged Carson to read history, literature, rhetoric, and the classics.[2]

Adopting a holistic understanding of legal education as something that cultivated virtue and moral improvement meant engaging with a diversity of texts. “[E]verything is useful which contributes to fix us in the principles and practices of virtue,” Jefferson wrote to Robert Skipwith in the summer of 1771. Fiction, in particular, proved a good way to learn about ethics, especially because “[w]e never reflect whether the story we read be truth or fiction.” Jefferson noted that Macbeth’s murder of King Duncan in Shakespeare’s famous 1606 play ignited the same “horror of villainy, as the real one of Henry IV.”[3]

Jefferson believed that fiction proved the best way to learn about ethics because it teaches us what to do and what not to do. We are “as warmly interested for a fictitious as for a real personage,” Jefferson observed in his 1771 letter. “The spacious field of imagination is thus laid open to our use and lessons may be formed to illustrate and carry home to the mind every moral rule of life.” Jefferson maintained that reading Shakespeare’s King Lear, for instance, could better teach young men and women about duties to their elders than “all the dry volumes of ethics, and divinity that ever were written.”[4]

Today, fiction isn’t usually required reading for law students, but some law professors still consider it to be valuable. For years, our faculty have integrated works of fiction into the curriculum to add texture and depth to the stories of law.[5] We surveyed UVA law professors this summer to find out of what fiction they consider required reading for understanding the law. You can join the discussion on the UVA Law Library’s Facebook page. We’d love to hear your suggestions as to what fiction you deem essential for a legal education that even Thomas Jefferson would approve of.

 

[1] See, for instance, Mark Warren Bailey, Early Legal Education in the United States: Natural Law Theory and Law as a Moral Science, 48 J. Legal Educ. 311 (1998).

[2] Id. at 321.

[3] Letter from Thomas Jefferson to Robert Skipwith, Aug. 3, 1771, in 1 The Papers of Thomas Jefferson 76, 76-77 (Julian P. Boyd ed. 1950).

[4] Id.

[5] Denise Forster, Using Literature to Make Better LawyersUVA Lawyer, Fall 2005, http://www.law.virginia.edu/html/alumni/uvalawyer/f05/literature.htm.

 

Published by

Melissa Gismondi

Melissa leads interpretation for the first phase of the 1828 Catalogue Project. She holds a PhD in early American history from the University of Virginia and is currently working on a book about the political partnership of Andrew Jackson and his wife, Rachel. Follow her on Twitter @melissajgismond.

Meet Special Collections’ Public History Summer Interns

Late Spring brings new growth to Special Collections at the Law Library as academics everywhere turn their thoughts to Summer research and writing. We are fortunate to have two stellar individuals joining the team over the next few months in partnership with UVA’s Institute for Public History to spearhead two important legal history projects. 

Abby Holland - Special Collections
Third year Abby Holland will contribute to the Dean Lile Diaries digitization project this summer.

Abby Holland, a rising 3rd year American Studies major with a concentration in race and ethnicity, brings her experience working with Civil War diaries in Small Special Collections and the digital tool Neatline to the Dairies of William Minor Lile project. 

Born into an Alabama slaveholding family in 1859, Lile studied law at the University of Virginia in the early 1880s. He later settled in Lynchburg to practice his trade. In 1893, UVA’s Board of Visitors appointed Lile to a law professorship in the expectation that he would succeed his great uncle, John B. Minor, as head of the law department. Minor died in 1895. Nine years later, during a period of administrative reorganization, university president Edwin Alderman named Lile as the Law School’s first dean. Lile died in 1935.

Lile produced an eleven-volume journal over the course of his adult life. The entries begin in 1882 and cease in 1932. They record Lile’s experiences in post-Civil War and Reconstruction Virginia as the United States entered the Gilded Age and the new international order. Lile’s journals illuminate the intersection of local and national politics and culture. They detail his participation in numerous Virginia and regional legal cases, comment on Democratic and Republican politics at the state and federal levels, technological changes such as the introduction of automobiles in Charlottesville, prohibition activities, and economic booms and busts that gripped the nation. 

Abby will spend the summer developing her digital history skills by preparing a new transcription of one of Lile’s volumes and writing interpretive essays that introduce readers to him. Her work is part of an on-going effort to prepare a digital documentary edition of these wonderful journals. She will also pursue a project of her own design based on the diaries that will enrich our understanding of the law, Virginia, and the United States during a period of chaotic transformation. 

Melissa Gismondi comes onboard as co-director of our Digital 1828 Catalogue Collection Project, an initiative supported by the Jefferson Trust Foundation. Melissa specializes in the history of nineteenth-century North America. She recently defended her dissertation and will receive her Ph.D. in August 2017. Her work focuses on the military and political partnership of President Andrew Jackson and his wife, Rachel, which she is developing into a book. She is also the moderator of BookStory, a new book club from BackStory, a program of the Virginia Foundation for the Humanities. 

Melissa Gismondi - Special Collections
History Ph.D. candidate Melissa Gismondi is co-director of our Digital 1828 Catalogue Collection Project.

As we noted in our Jefferson Trust grant application:

“In 1820, Thomas Jefferson believed the new University of Virginia would empower the ‘illimitable freedom of the human mind, to explore and to expose every subject susceptible of it’s contemplation.’ Jefferson envisioned the library as the centerpiece of university life and the foundation of his grand vision for American education. In 1824, he selected 7,000 volumes, including over 700 law books, to fill the library’s shelves. Jefferson believed that enabling access to these texts at UVA would overcome economic disparities and create educational opportunities for a broad audience. ‘Great standard works of established reputation, too voluminous and too expensive for private libraries,’ he wrote to the university’s purchasing agent, ‘should have a place in every public library, for the free resort of individuals.’ In Jefferson’s mind, an easily accessible library should be one of the cornerstones of a democratic society by allowing citizens and scholars convenient access to knowledge and the tools to create new knowledge.

The Digital 1828 Catalogue Collection Project reconstructs the original corpus of 721 legal texts purchased for the first UVA library and listed in UVA’s 1828 Catalogue. The UVA Law Library has been working for forty years to collect these rare legal titles, most of which were originally selected by Thomas Jefferson. This student-centered project will build a digital version of this collection using a new tool called the Virtual Bookshelf. The Virtual Bookshelf will enable new historical scholarship on foundational texts in early American and transatlantic legal history, and provide UVA libraries with a powerful new way to manage their digital presence. Built on a rich database of bibliographic information, this immersive website preserves the traditional browsing experience while providing students with experiential learning and leadership opportunities to explore the law library’s international origins and contribute to the university’s digital evolution.”

Over the next few months Melissa will create interpretive content for the new 1828 site, explore interesting facets about particular texts, and help us lay the groundwork for new scholarship centered on these fascinating volumes. Along the way she’ll develop her own professional interest in digital history and engage the public through social media. 

Both Abby and Melissa will contribute regularly to this blog over this summer. Be sure to follow us on social media for updates about these exciting initiatives. 

 

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.

Jefferson Trust Award to Facilitate Digitization of Jeffersonian Law Book Collection

Congratulations to our Digital Collections team, which was just awarded a grant from the Jefferson Trust to fund the Digital 1828 Catalog Collection Project. The project seeks to assemble and digitize all of the law books that were hand selected by Thomas Jefferson for inclusion in the 1828 Catalogue of the Library of the University of Virginia.  

Published by

Arthur J. Morris Law Library

The Arthur J. Morris Law Library is the home of research for students and faculty at the University of Virginia School of Law.

Citizen Historians Wanted: Help The UVA Law Library Transcribe Historical Legal Manuscripts

In the early 1820s, a young Harvard College graduate named Jared Sparks devised a plan to preserve the early history of the United States.  Like many Americans, Sparks sensed the closing of an age. Nearly fifty years had passed since the Declaration of Independence and many of the American Revolution’s central figures were dead or soon would be. George Washington took his last breath in December 1799 at Mount Vernon, six months after Patrick Henry succumbed to stomach cancer. In the 1820s, Thomas Jefferson remained busy overseeing the creation of the University of Virginia from his home at Monticello. From there he also maintained a lively correspondence with his friend and former adversary, John Adams, who spent his remaining years at home in Quincy, Massachusetts. Yet they would soon be dead, too. 

One August day in 1823, Sparks determined to preserve the nation’s past as he meditated “on the importance of having a new History of America.” He recognized this difficult task would require him to “go to the fountain and read everything on the subject.” That meant finding original documents. Like his contemporary and fellow historian Peter Force, Sparks set out to find and transcribe copies of correspondence, reports, and a host of other material in private homes, court houses, and libraries across the nation and in Europe. He became a prolific documentary editor. Over the next thirty years he published numerous volumes, including The Diplomatic Correspondence of the American Revolution (12 vols.), Life of Gouverneur Morris (3 vols.), and The Works of Benjamin Franklin (10 vols.). His twelve volume edition of George Washington’s writings was his most significant achievement and served as a forerunner of the current Papers of George Washington Project at UVA.1 

Sparks was a citizen historian long before the development of the modern historical profession in the late nineteenth century. His efforts to collect, transcribe, and arrange manuscripts into publishable form broadened what his fellow Americans could know about their own history.  In the nineteenth century that required traveling by horse or ship to archives in a quest for manuscripts. Today, professional historians and documentary editors use slightly faster modes of transportation to reach libraries and archives, but digital technology has also allowed us to bring the archive to the scholar and public. For example, you can now read George III’s thoughts on kingship in his own hand from the comfort of your office or explore a vast array of American women’s experiences in their own voices with students in your classroom.

Technology has also made the creation of historical knowledge participatory on a grand scale. Crowdsourcing transcriptions of manuscript collections has become an important way for professional librarians and scholars at institutions and projects large and small to work with people interested in the past. Manuscripts and rare books can languish in archival boxes unseen for years, keeping the stories they tell unintentionally hidden. Digitizing the documents and asking for the public’s help to transcribe them is a means to unlock their potential for future research and a form of civic engagement with our history. 

The UVA Law Library Special Collection is delighted to announce that we have partnered with FromthePage.com to make some of our manuscripts available for public transcription. Inspired by our friends in The Digital Scholarship & Publishing Studio at the University of Iowa Library and initiatives such as the Colored Conventions Project, we seek the help of citizen historians to tell the stories of the women and men who appear in our collections.

The law touches everyone in some way. That was as true in the past as it is today. The legal documents that we present on FromthePage.com capture how people in the United States, England, Scotland, and Italy lived and died. Their presence in a petition to a court, in a letter seeking favors from a government official, a catalog of their private property in a probate record, or in a lecture before eager young law students reveal much about them and the legal culture in which they lived. 

What we hope to accomplish: As Jared Sparks knew the publication of transcribed manuscripts democratized historical knowledge and made it possible for amateur and professional historians alike to write better histories. We have the same goal in mind. Producing transcriptions of the Law Library’s legal manuscripts can make the material more accessible and encourage new research. It will also enable the Special Collections librarians to create better finding aides that will make research and discovery more efficient. Using a combination of technology and interpretation, the librarians will identify subjects, key themes, and relationships that can increase a collection’s usability.  Importantly, we would like teachers to use this tool and our material in the classroom to help their students understand the complexity of the past.

How can you help: Participating is easy.  Follow these simple steps:

1. Go to FromthePage.com and create a free username and password.

2. One you are logged in, take a moment to read the “Transcription Instructions” in the Frequently asked Questions. Then go to “Collections” and look for those collections owned by “UVA School of Law Library.” Click on a collection that interests you.  (More on our available collections below).

3. In your chosen collection, review the “About” section to get a sense of the documents inside. Then investigate the “Works.” Think of “Works” like a folder of documents in a box. Select the one you want.

4. One you are inside a Work, select a document page or several to read through first before transcribing. It is important to gain a sense of an author’s handwriting and language. This will help you better understand an author’s thoughts and objectives, stylistic choices, and common trends across items. It helps, too, to read through another transcriber’s work (if available) to prepare your brain for the content you will see on the manuscript page. Previous transcriptions are important reference tools for each untranscribed page. 

Now you are ready to transcribe. Find a page to work on and click on “help transcribe this page.”

5. You will then be in transcription mode. You can adjust the position of the document to your likening. Be sure to look at the “Transcription Conventions” below the white transcription field to find information on how we would like you to transcribe the document.

6. Start to transcribe and be sure to save your work frequently. 

7. Know something about the people in one of the documents? Please feel free to put a note in the “Note” field at the bottom of the screen. The more we understand about these documents the better stories we can tell about the people in them.

We do not expect perfect transcriptions. Sometimes unclear or confusing words befuddle even the best professional documentary editor. And it is always possible that another transcriber will come after you and identify a word that you could not. You can also mark a page for formal review and leave a note for the Special Collections team should you want us to take a closer look. Documentary editing is a communal process.

What is important is the knowledge that we can begin to gleam from the transcriptions and the stories we can tell about the past. Citizens historians are crucial to making that possible. 

Manuscripts now available for transcription:

We have ranked these seven projects by degree of difficulty, which increases as one moves down the list.

1. The Papers of Roger B. Taney, 1792-1820  

Roger B. Taney practiced law in his home state of Maryland long before he became an influential member of President Andrew Jackson’s cabinet and later authored the majority opinion in the infamous Dred Scott v. Sanford case (1857) as chief justice of the United States Supreme Court. 

Taney (1777-1864) handled many of the cases in this collection just as he began his political ascent in state politics. The papers featured here are legal documents from his practice in Frederick, Maryland. Most items fall between 1805 and 1818. A few cases deal with slaves. These papers offer a unique opportunity to examine Taney’s legal career in its formative years before he rose to national prominence. 

2. Practicing Law in the Early American Republic

The papers offered here feature documents written by major figures from the American Revolution era. These include Samuel Chase, a signer of the Declaration of Independence and future Associate Justice of the Supreme Court; President James Monroe; future president John Quincy Adams; George Wythe, Thomas Jefferson’s mentor at the College of William and Mary; John Marshall, future chief justice of the Supreme Court; Charles Lee, the brother of Light Horse Harry Lee and uncle to Robert E. Lee; and Edmund Randolph, the first Attorney General of the United States. 

3. The Papers of John B. Minor, 1845-1893

John B. Minor joined the faculty of the University of Virginia in 1845 at the age of thirty-two. An 1843 graduate of the university, Minor began his teaching career following a decade in private practice. Minor, along with James P. Holcombe, directed the law program at UVA amidst national debates over slavery and the American Civil War. Following the war, Minor and his colleagues presided over a post-war enrollment boom that saw over 100 students in the law program. Meanwhile, Minor took an active role in reforming Virginia’s public education system and published major legal works that established his reputation as one of the South’s legal leading minds. 

The papers in this collection are wide and varied. They include Minor’s lecture notes, legal work, documentation on slaves, correspondence about secession in the Civil War, and post-war politics. They shed important light on Virginia in the Civil War era and illuminate the development of legal education during a period of national upheaval and reconstruction. 

4. The Papers of Solicitors J.M Shugar and A. W. Vaisey, 1850-1914

The documents in this collection contain the stories of nineteenth century English men and women. Solicitors J. M. Shugar and A. W. Vaisey worked as probate and property lawyers in the town of Tring, Hertfordshire, in south central England. They handled wills, estates, and personal property issues for their clients from about 1850 through 1914. Shugar practiced law in Tring from roughly 1850 until his death in 1876. Vaisey, a newly minted lawyer, took over Shugar’s practice and made it his own. Fortunately, their combined papers have survived the years and make it possible for us to know about the lives of their clients in some detail.

Estate papers are crucial for historians’ ability to reconstruct the social world in which people lived. Transcribing wills, estate inventories, and associated documents will help historians reconstruct this nineteenth century world and offer relatives new insights into their ancestors.

5. Letter book for the Receiver of Wrecks at Kingston upon Hull, England, 1855-1861

This handwritten letter book was kept for James Sparrow, who worked for the British Board of Trade as the Receiver of Wrecks at Kingston upon Hull, 1855-1861. The volume begins with an index of correspondents and subjects. While the book primarily records copies of all outgoing mail, there are frequent notes about disposition of matters or copies of replies in the margins.

The letter book offers fascinating insight into British commercial and maritime activities from Kingston upon Hull, a port community in eastern England along the North Sea. Transcribing this manuscript could help inform our understanding of British maritime activities in the mid-nineteenth century. The letters record not just merchant activity and doomed vessels, but government patronage and power. 

6. Scottish Court of Session Records Marginalia Project

This transcription opportunity is one of the most challenging and builds upon a larger initiative at the UVA Law Library to construct a digital archive and research platform centered on our Court of Session Collection. The Court of Session is Scotland’s supreme civil court and court of first instance. Eighteenth century Scottish court records are distinctive for the printed word. Unlike in England or in the American colonies and states, briefs, memorials, petitions, and depositions were printed and given to the court’s judges for their evaluation. Copies of these documents exist in other archives, but the Law Library’s are unique for the marginalia scribbled on them by their two owners, William Craig, Lord Craig, a judge on the court, and Andrew Skene, who briefly served as Scotland’s solicitor general. 

The marginalia illuminates how Craig and Skene interpreted and studied Scots Law as they participated in the making of it. Craig, who owned the papers first and had the worse handwriting of the two, scribbled over cases in which he was involved with as a lawyer before he sat on the court. Skene, who either bought or inherited Craig’s papers, added on to the collection, and made his own notations next to Craig’s. Scottish judges did not issue formal written opinions as the U.S. Supreme Court does. A clerk took note of what the judges said in conversation on the bench. Later, these decisions appeared in legal digests. Skene and Craig often wrote on their papers what the judges said in the court room, probably as they heard them say it. The marginalia pulls back the current on law making and takes us into the room as it happened. 

7. Giusticiati: Italian Manuscript List of Persons Condemned to Death in Venice, 726-1804

The law library knows very little about this manuscript. This project will require people with Italian language skills. Written in Italian and probably composed around 1804, this bound volume contains the names of 1,068 Venetians executed between 726 to 1804. It records names, dates of execution, crimes, and method of execution. Relatively few executions are listed until the late sixteenth century, and almost half of the total listed in this manuscript occurred in the seventeenth century. Crimes included conspiracy, rebellion, treason, theft, forgery, usury, homicide, sodomy, aggression and disturbing the peace. Death was usually by hanging or beheading, but occasionally included torture and display of the bodies.

Please contact Jim Ambuske (jpa4ad@virginia.edu) with any questions. 

1. Journal entry, 18 August 1823, quoted in Lester J. Cappon, Jared Sparks: The Preparation of an Editor, Proceedings of the Massachusetts Historical Society, 90 (1978): 3. See this article for a concise overview of Sparks’s career in documentary editing. The UVA Law Library Special Collections owns a complete twelve-volume set of Sparks’s 1847 edition of The Writings of George Washington. Peter Force’s American Archives remains an important resource for students of the colonial period and American Revolution. The introduction to the digital edition of his Revolutionary era collection at Northern Illinois University Libraries contains a useful brief overview of his career. The site itself is a wonderful research tool. The UVA Law Library Special Collections holds a first edition set of the nine-volume printed work, which covers 1774 to 1776. Force published these volumes between 1837 and 1853.

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.

Trouble and Fash: Ordinary People and the Scottish Courts

Litigation documents are the “meat and potatoes” of our Scottish Court of Session Records (1759-1834), but the collection is also peppered with testimony, letters, wills, contracts, and other evidence offered by lawyers to help prove their cases. These records preserve the voices of ordinary people—including women, servants, and Erse-speakers,[1] among others—and tell stories that might otherwise have been lost to history. Though it would be easy to overlook these personal histories tucked inside legal documents, they form an extremely valuable part of the collection, illuminating the socioeconomic context of legal disputes and providing information about the burdens and biases of the court system.

The depositions in Farquharson v. Anderson, for example, reveal complicated tensions between the case’s landed litigants and the witnesses, many of them working-class, who were forced to testify. Farquharson was about an alleged romantic entanglement, and the case documents include salacious, even spiteful allegations. Pursuer (plaintiff in Scots law) Jean Farquharson, having birthed a child out of wedlock, sued Alexander Anderson to have a marriage declared on the grounds of “a public courtship, followed by copula,” or consummation of the marriage. In addition to her core claim of an irregular marriage, Farquharson alleged that Anderson had engaged in a scheme to corrupt witnesses and blame Farquharson’s pregnancy on a man named Alexander “Sandy” Milne.[2]

The case proceedings required the participation of witnesses who were debtors, servants, or tenants of the litigants. These individuals found themselves caught between the compulsory power of the courts and the risk of backlash from landlords, creditors, and other influential men who might be angered by unfavorable revelations. Witness Ann Forbes touched on this dynamic, testifying that fellow witness Rachael Stewart had “expressed sorrow that she had been summoned, cursed the parties, [and] said [Rev. Farquharson, minister of] Colston [the pursuer’s brother] had put up a good house for her, and she would lose it.” Stewart’s situation exemplifies the difficulties that might arise for a less privileged witness.

Another witness in Farquharson, Isobel Duncan, also expressed displeasure with the litigation. Duncan, whose “husband ha[d] a farm under the defender,” was drawn into the case after she took part in a nighttime gathering at a neighbor’s farm; Farquharson alleged that during this meeting, several people under Anderson’s influence tried to convince Sandy Milne to marry Jean Farquharson. (For her part, Duncan claimed that she did “not recollect whether she urged or particularly advised Milne to marry Miss Farquharson; but she did express an opinion, that it would be an eligible match for him.”) Having been summoned to testify about the meeting, Isobel was required to travel to Edinburgh from her home in Aberdeenshire. During the deposition, she was asked whether she regretted attending the gathering. She responded:

That she may be sure of that; for that she has felt the smart of it, having had a great deal of trouble and fash[3] in coming so far as Edinburgh, on account of her having been present upon that occasion; and this is the only reason she ever had or expressed for regretting what happened . . .; and that she did regret it before receiving her citation, suspecting, as she did, that sooner or later she would be called upon to give evidence concerning it.

This testimony highlights a side of the legal system that is often overlooked by case reports: the experience of regular people, unversed in the law, who were compelled to help resolve the disputes of their wealthier landlords and neighbors. As our case documents make clear, these individuals raised important questions about the fairness, social cost, and reliability of the process in which they participated.

Testimony of Isobel Duncan in the records of the Scottish Court of Sessions Records.
Testimony of Isobel Duncan, first page.

The testimony in our collection also provides insight about 18th and 19th century cultural norms, including the interface between those norms and the procedures, deliberations, and jurisprudence of Scottish courts. A prime example comes from the case of Macgregor v. Campbell, in which a woman named Katharine Macgregor claimed to have been married to the late Lieutenant Duncan Campbell. Lieutenant Campbell’s family, in line to be his heirs, disputed her claim. Because there was no record of a regular marriage, Macgregor sought to prove the marriage “by cohabitation, habit and repute.”

Testimony centered on the couple’s reputation in the neighborhood. A number of witnesses described the different names that people called Katharine Macgregor. For example, they said that Lieutenant Campbell called her Kate, Katy, “My Dear,” and even “Kate Brodie, which means thick or fat.” Of particular interest was whether Katharine’s neighbors (not to mention her alleged husband) commonly referred to her as “Mrs. Campbell.” If they did call her Mrs. Campbell, one would tend to think that she was married. But what if they didn’t? Would a married woman in Katharine’s neighborhood normally have been called “Mrs.”? Testimony on this issue revealed complex linkages among facts, cultural norms, and legal standards.

One witness told a vivid story that seemed to support the marriage and confirm that neighbors—in at least some cases—called Katharine “Mrs. Campbell.” Betty Macilwhannel testified that she had run into Katharine and Lieutenant Campbell at the Comrie Fair, where:      

. . . the Lieutenant took Kattie Macgregor and the witness into the [public] house: That he then called the landlady, and said to her, ‘Luckie, put on the kettle, and warm a bottle ‘of beer for these women, for do you know this is my wife;’ and the witness understood that he meant Kattie Macgregor, the pursuer: That the pursuer upon hearing this smiled, but said nothing: That the landlady also smiled, and said, ‘If I did not ‘know it before, I know it now:’ That Lieutenant Campbell, the pursuer, the landlady, and the witness, drank the warm beer together, and were very happy over it: that the witness drank to the health of the pursuer as Mrs Campbell. . .

Clear as this testimony may seem, it was not conclusive. The landlady disputed some details of the account, and Lieutenant Campbell’s family claimed that he had called Katharine his wife in jest. Further, Macilwhannel subsequently testified—seemingly to the court’s surprise—that even after their day at the fair, she heard a servant refer to Katharine by her first name. To the court, this familiar form of address appears to have weighed against the idea that Macgregor and Campbell were married. The discussion about this conversation among the witness, the court, and Macgregor’s lawyer provides a fascinating exposition of class differences and cultural variation in Scotland.

The exchange began with Macilwhannel’s testimony that during a visit to Lieutenant Campbell’s house, she sent a servant (who happened to be Katharine’s sister) to announce that she was waiting. After delivering the message, according to Macilwhannel, “the servant bade the witness stay and rest her, and Kattie would rise and speak to her.” The court posed some follow-up questions, asking:

Whether the witness be positive, that when the servant returned and gave the witness the answer to the message at the house of Dundurn, she said that if the witness would stay a little and rest Kattie would rise? [Emphasis added.]

Macilwhannel responded “[t]hat the servant expressed herself exactly as it has been taken down in the former part of this deposition,” and the court pressed the issue, asking “[i]f this did not strike her as something particular after what had passed at Comrie fair?” Macilwhannel said simply that she “did not know what to think of it.”

Likely realizing that this testimony would hurt his case, Katharine Macgregor’s counsel sought to clarify the norms surrounding women’s names. He asked, “[Is it] not a common practice in that part of the country to call married women by their maiden name?”

Macilwhannel gave this nuanced explanation:

…[t]hat it is, according to their station: That the wives of the best farmers get the name of Mrs; but that the witness having long been upon an intimate footing with the pursuer, used the freedom to call her by her maiden name, and the sister (the servant) knew this well: That she knew the pursuer ought to have got the name of Mrs Campbell; but that she, the witness, being so intimate with the pursuer, gave her the name of Kattie Macgregor, both when she spoke of her and spoke to her.

Another witness, James Macisaac, also recognized the class implications of this issue, though he suggested that Lieutenant Campbell’s wife should always be called “Mrs.” Macisaac testified:

That the wives of gentlemen in that country are always called by the names of their husbands, and particularly that the wife of Mr Sinclair, a farmer in the deponent’s neighborhood, but whom the deponent does not consider as equal in rank to Lieutenant Campbell, is called by her husband’s name, though her maiden name was Thomson.

These accounts, with their rich specificity and detail, go well beyond what is relayed in the case report of Macgregor v. Campbell, which is what makes them so valuable. For lawyers (and law students!), it becomes second-nature to focus on rules, legal reasoning, and legally relevant facts, along with the final outcome of a case.[4] But our collection’s “dispatches from non-lawyers”—with their distinctive voices and wonderful descriptions of everyday life—offer a wealth of information about the lives of ordinary people and their interactions with the legal system.

[1] Referring to “[t]he Gaelic of Scotland or (occas.) of Ireland,” the term “Erse” was once “[a]pplied by Scottish Lowlanders to the Gaelic dialect of the Highlands.” Erse, Oxford English Dictionary, http://www.oed.com/view/Entry/64135 (last visited Apr. 4, 2017).

[2] Farquharson’s counsel wrote that Anderson targeted Milne because Milne “was in very indigent circumstances; he was a good-looking lad; and he had been employed as a mason about [Farquharson’s] brother’s house for a considerable period.”

[3] “Trouble, vexation; bother, inconvenience; also, something that gives trouble,” in the dialects of Scotland and Northern England. Fash, Oxford English Dictionary, http://www.oed.com/view/Entry/68383 (last visited Apr. 4, 2017).

[4] For the record, Katharine Macgregor lost her case, Macgregor v. Campbell, [1801] Mor. 12,697 (Scot.), and Jean Farquharson achieved mixed results in her effort to disqualify certain witnesses. Farquharson v. Anderson, [1800] Mor. 16,790 app. at 2 (Scot.).

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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.

Law Librarians Present Travaux Préparatoires at Human Rights Conference

At the “What’s Next for Human Rights Scholarship?” conference on March 31, law librarians Ben Doherty and Loren Moulds presented the Law Library’s new searchable database of preparatory works, or travaux préparatoires,[1] of the United Nations’ core human rights agreements. More than 30 human rights scholars from North America, Europe, Asia, and Oceania participated in the two-day interdisciplinary conference, which was organized by the UVA Working Group in Human Rights Research.

Ben began the presentation by explaining that, until the Law Library undertook the initiative, the travaux were only selectively available in electronic format, as excerpts in published guides to the travaux, and in hardcopy or microfiche at U.N. depository libraries. A Refdesk question from Professor Mila Versteeg led the law librarians to conclude that “it’s not available” was not an answer the Law Library was willing to give. Using the published guides and the United Nations’ UNBISNET database, the Law Library compiled fully-searchable, digital copies of as many of the travaux préparatoires as could be found. The travaux database and other recent digital initiatives, such as the Neil Gorsuch Project, a website that assembles all of Gorsuch’s written opinions and much of his other writings and speeches, are examples of how the Law Library’s content and services are driven by inquiry. Ben advised attendees that, “instead of thinking of research as simply being able to get what is already available,” a scholar can push “research methods forward by thinking about what you need for your scholarship and partnering with your associated library to create those datasets or resources.”

Loren likewise encouraged “scholars not to feel limited in our research plans, particularly when it comes to issues of access to materials, the creation of new types of digital collections, or the adoption of new analytical techniques.” His presentation included an overview of the website and a discussion of the technology used to create it, but he situated his technological discussion within the Law Library’s philosophical approach to scholarly research. Explaining that the Law Library provides ever-expanding expertise in a field that includes scholarly publishing, copyright issues, and the aggregation, management, and preservation of data, Loren stated, “We consider ourselves empathic stewards of knowledge production through collaboration with researchers, technologists, and other librarians working to develop the intellectual infrastructures necessary for new kinds of scholarship and research methods in a digital age.”

After the presentation, Ben and Loren took questions from the conferees. The conclusion of the ensuing discussion was that the travaux database is an example of modern librarianship: a specific inquiry (“What role did smaller countries play in drafting human rights treaties?”) was stymied by a specific problem (the lack of systematic, comprehensive access to the travaux préparatoires), which was resolved by the expertise residing in the Law Library.

[1] The travaux préparatoires are documents that are generated in the drafting and negotiation of a treaty. Under the Vienna Convention on the Law of Treaties, treaty terms are to be interpreted according to their ordinary meaning. However, Article 32 provides that the travaux préparatoires can be used as a supplementary means of interpretation in certain instances.

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James McKinley

James McKinley, a 2005 graduate of the Law School, has been with the Law Library since 2016. He previously served as a career law clerk for United States District Judge Norman K. Moon in the Western District of Virginia. James holds a M.F.A. in creative writing from U.Va., and a M.A. in English and creative writing from Hollins University.

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. 

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.

“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.