The International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD), was negotiated at the United Nations (UN) during the years 1962–1965. At that period, the UN was an organization so highly politicized and split that it was almost paralyzed, operatively speaking. Human rights codification was a major field whose advancement came to a standstill as a result of the lack of cooperation between UN member-states. Nevertheless, the UN managed to unite around the denunciation of racial discrimination, and unanimously adopted CERD on December 21, 1965. Furthermore, the period of time that elapsed between the presentation of the initiative and the vote on the final version of the treaty was only 3 years; a rather short period of time, UN experience considered.

In this article, I address the use of witness testimony by medieval and early-modern historians of England. Although the idea that such evidence straightforwardly represents the thoughts and feelings of quite lowly people has long been discredited, I think that some part of this assumption still haunts the thinking of our postmodern, or cultural turn, historiography. To put it rather too bluntly: the old, empiricist quest for “real voices” in testimonies has to some extent been replaced by a contemporary quest for “real discourses.” That is to say, the utilization of testimonies by historians often seems to boil down to the careful extraction of the particular discourse under examination—gender, class, childhood—from the legal discourses acknowledged to be inherent in witness testimonies produced in law courts. Now, this is a severely reductionist account, and later I will elaborate on the varieties and subtleties of current approaches. Nonetheless, this assumption that we can simply extrapolate social discourses about “x” from the legal discourses of the depositions seems to me somewhat flawed, because it presumes that premodern witnesses were simply conduits of discourse, whose testimony was nonetheless decisively shaped by the machinations of the legal counsel. In fact, as I will argue here, medieval witnesses were quite capable of manipulating such discourses, using clichés to tell the court what they thought it wanted to hear. In the subsequent discussion, I will look in detail at two intimately related cases from the Bishop of London's consistory court to make this point more explicit. First, I will relate the basic facts of these cases: the narrative of the events and the procedure of the courts. I will then address the historiography of witness testimony in greater detail, at the same time demonstrating the way in which the examples from the consistory counter the assumptions of this historiography. I will present different ways of reading my own examples using different positions within the scholarly literature, before showing how the case upsets even the most sophisticated of such readings. Overall, I argue that as well as considering the “construction” of the testimony by lawyers and legal counsels, and the “deconstruction” of such discourses by historians, we must begin to think about the “preconstruction” of the testimony by witnesses; their own integration of legalistic ideas into the fabric of their depositions. Finally, I will conclude by considering some of the wider implications of this argument for the use of witness depositions, and for the study of “law and society” more generally in the medieval and early-modern periods.

While serving in the New York Assembly in 1787, Alexander Hamilton identified a problematic clause in New York's constitution. Remarking on an act for settling intestate estates, Hamilton asked, “The question is what is meant in the constitution, by this phrase ‘the common law’?” He went on to describe an important distinction in his legal and constitutional thought:

In early 1943, Lord Wilfred Green, the Master of Rolls and the head of the Chancery Division of the British judiciary, authored a secret memorandum proposing that the Judicial Committee of the Privy Council become a “peripatetic court” that would travel throughout the British Empire. This article explores the origins and politics of this proposal to provide a critical re-description of the role of the Privy Council and the circulation of law within the British Empire.

In 1847, Raymond-Theodore Troplong, one of France's most distinguished legal minds, presented his recently finished work on debt imprisonment to Paris's prestigious Académie des sciences morales et politiques. He started his narrative with an imaginative reconstruction of debt imprisonment's origins in the “barbaric law” of “primitive peoples.” In such societies, Troplong explained, “the person responds corporally, and principally, to contracted engagements. On one hand, insolvency is assimilated to crime. The debtor who dishonors his word in not paying his creditor differs little from a thief. In dishonoring his word, he has dishonored the gods whom he has taken as witnesses of his oath; his body is therefore engaged by his offense; it belongs to its expiation. On the other hand, in order to make him pay with his possessions, the creditor must seize, first of all, his person.”

In September 1939, Fiji's Legislative Council debated a testamentary disposition bill, patterned after the English Inheritance (Family Provision) Act of 1938. The bill's introduction followed a routine procedure of the transplantation of English legislation to colonial jurisdictions. The bill empowered the court to modify wills in which the testator had deprived the spouse and children of reasonable maintenance. As debate ensued, Said Hasan, the recently nominated Muslim Member of the Legislative Council, rose to offer his support. He noted that the bill gave partial effect to “the underlying principle of Mohammedan law.” The “policy” of Mohammedan law, he argued, was to prevent the testator from interfering with the devolution of property to family members in “fixed and definite shares.” A testator was entitled to will only a “bequeathable third” of the estate beyond the fixed shares assigned to dependents. Hasan further declared that the bill was a “tacit admission” of the injustice suffered by dependents excluded from their rightful share in family property.

Atlanta's human rights community was buzzing, because the United Nations (U.N.) was coming to town. On Sunday, January 19, 1964, the front page of the Atlanta Daily World, the city's oldest black newspaper and the South's only black daily, announced, “United Nations Rights Panel to Visit Atlanta.” The U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities (Sub-Commission), the Daily World explained, was a fourteen nation “body that surveys the worldwide problems of discrimination.” The Sub-Commission had been invited to Atlanta by Morris Abram, a former Atlanta attorney and the lone United States member of the Sub-Commission, to study first-hand the city's well-publicized, efforts to improve in race relations. Sunday morning's Daily World also noted that the U.N. delegation “composed of experts, mostly lawyers and jurists” was in the midst of drafting a global treaty designed to end racial discrimination, and the local paper highlighted Abram's role as the primary drafter of the race accord. “Mr. Abram, as the U.S. expert on the subcommission has proposed a sweeping eight-point treaty,” the article reported. According to the Daily World, the pending race treaty—the treaty that would ultimately become the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD or Convention)—would address “segregation, hate groups and discrimination in public accommodations.”

Twenty-something John Dunn remembered July 17, 1872 well. A witness for the defense in both a bastardy trial brought by 15-year-old Mary Morgan and a later seduction suit brought by her father, John would recount that summer day by drawing on the rough, sexual slang he likely used in conversations with male friends. After he was sworn in, John informed the legal participants and curious local spectators gathered at the Perry County Circuit Court that the July 17 buggy ride with young Mary had presented him with the opportunity to “feel of her titties and monkey.” John's testimony was hardly the most vulgar given during the proceedings. Another character witness, Robert B. Ward, disclosed a particularly salacious conversation he had overheard while in the “privy” behind a DuQuoin general store. Eavesdropping, Ward listened to two young men discuss Mary Morgan's “condition” with one another. The man Ward recognized, Thomas Williams, told his friend he would leave the state rather than marry a girl who “ran around screwing this one and that one,” if Mary did happen to “swear the child on him.” Thomas's buddy agreed that dodging the law would be preferable to matrimony with Mary for she had not “behaved herself.” “I have screwed her as often as I have fingers and toes, or oftener, and you know it,” he confided to Thomas. “Yes I know that,” Thomas replied, “She don't know more than a hog whose child it is.”

Medieval and early modern rulers commonly proclaimed that protecting the legal entitlements of the personae miserabiles, who included widows, orphans, the chronically ill and “the poor,” was among their principal duties. The entitlement of the poor to legal services was not a matter of grace but was in fact their “good right.” For example, widows, orphans, and other personae miserabili had the privilege of being heard in first instance before high courts, so as to save time and costs in pursuing their legal claims. Another example of manifest commitment to legal entitlement for the poor was the refusal of Philip II of Habsburg to consent to measures that would limit the jurisdiction of his Castilian chanceries; the measures had been proposed so as to limit the chanceries’ ever-increasing workload, but, because they could also restrict indigents' access to such courts, were rejected by the monarch. At first glance, such inclusiveness appears to have been achieved, particularly in view of the large numbers of petty conflicts brought before formal law courts during the long sixteenth century, leading to a so-called “legal revolution.” Historians generally acknowledge that broad layers of early modern society made abundant use of civil adjudication in arranging their social and economic relations and interests.