HISTORY OF AMERICAN LAW

Magnificent.  That's the best description I can give of Professor Lawrence Friedman's masterpiece.   If there is anything that Lawrence Friedman hasn't read about American legal history, I'd be surprised. From the first colonial settlements until the early years of the twenty first century, this book covers it all.

It would seem like this topic should be boring, but this is an engaging and engrossing book.  To a large extent the history of the American people is a history of their laws and legal systems.  Even the chapters about legal education and lawyers are not boring.

Why is all this important? "The law, said Justice Holmes, is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.  Thus, a history of American law reflects the nation's history in all its manifold aspects.  Every important development in American life has had its impact on the law, from the founding of the Republic to the internal stresses of the society two centuries later."  Bernard Schwartz, The Law in America: A History (1974).

Five out of five gavels.

THE SALEM WITCHCRAFT TRIALS: A LEGAL HISTORY

This excellent little book by University of Georgia History Professor Peter Charles Hoffer was first published in 1997.  Professor Hoffer was the author of an earlier book on the Salem Witch Hysteria which was much broader in scope.  As the title indicates, this book is a legal history which concentrates on the trials themselves.

Due to a number of factors, hysteria not only gripped Salem Village in 1692 but also the entire Massachusetts Bay Colony.  Ministers and Judges in Massachusetts had headed off earlier witchcraft accusations which, as in Salem Village, were made by teenage girls who claimed to be oppressed by the spirits of various members of the community.

The witchcraft accusations were, in part, fueled by animosity between the Putnams and the Porters, leading families in Salem Village, who were competing for land, wealth and control of village politics.  Judges in the early Salem Witch Trials ignored the rudimentary rules of evidence which were current in English law which prohibited the introduction of "spectral evidence," that is testimony regarding visions, dreams and ghosts.  When allegations were believed that the oppressed victim was being tormented by the spirit of a Defendant, the Defendants were powerless to refute it.

In the earliest trials, the Defendants were unpopular and outcast members of the community.  The accusations soon spread to respected older women, like Rebecca Nurse, a stalwart church member who was well respected in the village.  In fact, despite the introduction of spectral evidence and the rabid denunciations of the alleged victims, the jury initially returned a verdict of not guilty.  The judges, led by Massachusetts Bay Lt. Governor and Chief Judge William Stoughton, were enraged and sent the jurymen back to reconsider their verdict.  The jury then complied and brought in a guilty verdict and sent the respected Goodwife Nurse to the gallows.

At this time in English law, a criminal defendant was not allowed to be represented by counsel but was required to conduct their own defense.  A criminal defendant was not considered to be a competent witness and could not testify under oath, although they were allowed to make an unsworn statement to the jury.

The prominent Boston minister Cotton Mather was an enthusiastic proponent of the trials.  Mather somewhat backed off of this position after his distinguished father, Increase Mather, and a group of Massachusetts ministers urged the governor to end the trials and denounced the admission of spectral evidence.  Governor William Phips eventually ended the trials and pardoned those remaining in jail.  Chief Judge Stoughton, who eventually replaced Phips as Governor, was outraged and reportedly stormed off the bench saying "that he was just about to 'clear the land' of witches when Phips interfered."

This book is part of the series called "Landmark Law Cases and American Society" published by the University of Kansas Press.  This is excellent reading and is highly recommended.  Five out of five gavels.

JIM GARRISON'S BOURBON STREET BRAWL

This little book (150 pages including bibliography, notes and index) chronicles the U.S. Supreme Court's decision in Garrison v. Louisiana, 379 U.S. 64 (1964).

Jim Garrison was the controversial District Attorney of Orleans Parish, Louisiana who became famous (or infamous) when he indicted a New Orleans businessman, Clay Shaw, and claimed that he was a C.I.A. operative who had been involved in a conspiracy to assassinate President John F. Kennedy.

The events of this book happened in the early 1960s well before the prosecution of Clay Shaw.  Garrison became involved in a fight with local criminal court judges over the use of funds gathered from criminal bond forfeitures which Louisiana law allowed the District Attorney to spend with the permission of the judges.  When Garrison began his own sting operation on Bourbon Street in New Orleans, going around the New Orleans Police Department, the judges began refusing his request for funds from the forfeiture fund.

Garrison's sting operation primarily involved stopping a scam in Bourbon Street bars where a patron would be approached by one or more girls who implied that they would provide sex to the man "if he would buy her a drink."  The customer would then be asked to buy one or more bottles of over priced champaign.  After the customer was drunk, the bottles might only be filled with ginger ale.  When he was really drunk, he would typically be asked to leave and thrown out by a bouncer and sometimes by the New Orleans Police.   Garrison sent his investigators into the bars undercover and many Bourbon Street establishments were forced to close.

When the judges began to deny Garrison funding, he publicly accused the judges of being "racketeers," and implied that the judges were being bribed by the Bourbon Street Bar owners.  Garrison also accused the judges of being at fault for jail overcrowding for taking too many vacations and refusing to hold court.   In response, the Attorney General of Louisiana charged Garrison with Criminal Defamation.  Garrison was tried and convicted after a bench trial.

Orleans Parish District Attorney Jim Garrison

After Garrison's conviction was upheld by the Louisiana Supreme Court, Garrison appealed to the U.S. Supreme Court.  The Supreme Court had recently held in New York Times v. Sullivan that a public figure cannot recover damages for liable unless the statements were "malicious,"  The Court defined malice as "a reckless disregard for the truth."

Savage's thorough research using Justice William O. Douglas' conference notes brings us inside the Justices' conference and reveals the deal making which goes on behind the scenes among justices.  Ultimately, after the case was argued twice, the Court ruled that the Louisiana criminal defamation statute as written was unconstitutional and applied the New York Times v. Sullivan standard to criminal defamation cases.  

The colorful Attorney General of Louisiana, Jack P.F. Gremillion, apparently was never able to comprehend that at the level of the U.S. Supreme Court, what they were talking about was the constitutionality of the statute and not the guilt or innocence of Garrison.  Gremillion, who was a member of the Earl K. Long faction in Louisiana politics, had previously been held in contempt of court by a Federal Judge in New Orleans in a school desegregation case, telling the judge that the U.S. District Court was "a kangaroo court," and "a den of iniquity," and allegedly spitting at the black plaintiffs.  Gremillion's performance before the U.S. Supreme Court, according to Savage, resembled a stump speech more than it did a legal argument before the nation's highest court.

The book, Jim Garrison's Bourbon Street Brawl: The Making of a First Amendment Milestone, was apparently Savage's Master Degree Thesis.  I found it to be an enjoyable and informative read.  Five out of five gavels.