Vice Patrol analyzes how reconfigurations in postwar gay public life, psychiatric research, and policing surveillance technologies recast Americans’ chimerical commitments to purging sexual vice. Before a more radical, visible queer liberation movement emerged after 1969, vice enforcement was not a monolithic project but rather a conglomeration of newly empowered post-Prohibition liquor agents, policing units, and judicial institutions. Enforcement practices and institutional priorities generated inconsistencies over policing sexual difference, creating conflicts that became embedded in judicial processes, themselves fraught with institutional pressures and contradictions. These legal and administrative configurations did more than enforce existing law regulating sexual deviance; they actively produced identifiable targeted groups believed to be predisposed to sexual criminality. Vice Patrol’s insights are urgent; they reveal and explain the historical, institutional, and political processes of negotiating human expression into criminal acts requiring state policing intervention. The intrusive tactics that Lvovsky chronicles did not disappear; they were redirected, which is best articulated in the liberal disillusionment with “urban renewal” and with the Nixon administration's “War on Crime” that targeted “high crime” areas in urban communities of color, propelling forward racialized mass incarceration.

Historians have long since agreed that slavery was central to the social, economic, and political life of the English-speaking North American colonies, and then early United States. Yet the origins of North American slavery have remained far less clear. Holly Brewer's article, “Creating a Common Law of Slavery for England and its New World Empire,” which appeared in a recent issue of Law and History Review, attempted to clarify one key question within this puzzle. Did judges and legislatures in the colonies create their own institution of slavery? Or did they borrow from English precedent? For Brewer, the answer is clear: seventeenth and eighteenth century English judges, merchants, and others, in tandem with “crown policy,” built the institution of slavery that would be “a foundation for a common law of slavery in all English colonies and for the slave trade.” Slavery, in other words, was legal in England before the Somerset decision. It would thus be legal in the British Empire.1

This paper responds to Holly Brewer's article “Creating a Common Law of Slavery for England and its New World Empire.” Brewer traces a process begun by Charles I, in collaboration with his appointed judges, to legalize the buying and selling of people in England and its Empire. Brewer's work is a much-needed reconstruction of the legal precedents that transformed people into chattel, enabling the business of slavery in the seventeenth and eighteenth centuries. Yet race does not receive any engagement as a category of analysis. Missing is an account of the historical processes whereby laws about slavery contributed to racial formation. Although the global expansion of the British Empire coincided with a new emphasis on rule of law and equality before the law, bound labor and persistent questions of race, gender, status, age, nation, and boundary called attention to the contradictions embodied in Enlightenment thought and its proclaimed universal values.

I want to begin by thanking the editors of Law and History Review for hosting this rich exchange on Vice Patrol, as well as Marie-Amélie George, Yvonne Pitts, and Steven Maynard for their generous and generative comments. Engaging so deeply and so rigorously with another scholar's project, connecting it to one's own research and even to one's own life experience, is an act of remarkable collegiality, and I am grateful for their time and reflections.

This is an invited comment on Holly Brewer's LHR article, “Creating a Common Law of Slavery for England and its New World Empire.”

“They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death,” Jonathan Swift famously wrote of the fictional island of Lilliput in Gulliver's Travels. Appearing as an epigraph of Edward Balleisen's Fraud: An American History from Barnum to Madoff, it invites comparison of Lilliput with the United States, not least because it is paired with a 2007 quotation from the former Federal Reserve Chairman Alan Greenspan, who was rather more philosophical about fraud. As the world teetered on the edge of economic crisis, he wrote it off as a regrettable but inevitable part of “the way human nature functions,” suggesting that “what successful economies do is keep it to a minimum.” Looking backward, Balleisen finds greater ambivalence in the historical record, as a matter of both human psychology and American law. From the nation's founding, he observes, “the country's lionization of entrepreneurial freedom has given aid and comfort to the perpetrators of duplicitous schemes.” But this is not to say that they have been allowed to act with impunity. To the contrary, their creative deceptions have inspired a wide array of anti-fraud initiatives, operating “at the leading edge of regulatory innovation.” In chronicling these conflicting and conflicted pursuits of profit and justice over the course of two centuries of American history, Balleisen brilliantly elucidates an enduring dilemma of governance: how to promote ingenuity without undermining “‘the capital of confidence upon which all progress depends.’”