John H. Wigmore and European Culture in the Progressive Era

DOI : 10.35562/cliothemis.541

Abstracts

We are interested here in the initiatives of John Henry Wigmore (1863-1943), Dean of the Northwestern University School of Law. Since the beginning of the last century, Wigmore has promoted several collections (in English) of works by renowned European jurists in the fields of criminal law, the legal history, the philosophy of law. These pages offer keys to interpreting the collections and developing the strategies adopted in a dynamic of "nationalisation" of foreign texts.

Nous nous intéressons ici aux initiatives de John Henry Wigmore (1863-1943), doyen de la faculté de droit de la Northwestern University. Depuis le début du dernier siècle, Wigmore a promu plusieurs collections (en anglais) d'œuvres de renommés juristes européens, en matiére du droit pénal, de l'histoire du droit, bref, de la philosophie du droit. Ces pages proposent des clefs pour proceder à une interprétation des collections et pour déveler les stratégies adoptées dans une dynamique de 'nationalisation' des textes.

Index

Mots-clés

John H. Wigmore, traductions juridiques, réception des doctrines, Circulation internationale des idées

Keywords

John H. Wigmore, legal translations, reception of doctrines, international exchange of ideas

Outline

Text

In the United States of the first decades of the past century, the convergence of several processes helps explain the moderate triumph of European legal culture in the translations of fundamental texts. I came across this reality when I had the opportunity to study, quite some time back, the influence of François Gény on American jurisprudence for Paolo Grossi’s Quaderni Fiorentini. Thanks to the study “La fortuna de Gény en América”, I had a virtual encounter with two legal scholars with partially parallel lives and work, who had been active on both sides of the Atlantic. I am referring to Edouard Lambert (1866-1947) and John H. Wigmore (1863-1943).

I have already written something on Lambert, and, more importantly, I continue to entertain the idea of a project – more of an old man’s dream at this point – dedicated to narrating and interpreting his professional life as an expert in American law and founding father of legal comparison. As for his friend Wigmore, I do not think a similar effort would be that useful, as there already exists a good and well-documented biography of him1. Colonel Wigmore – as his own people knew him – was one of the most remarkable jurists of the Progressive Era: “a man who belonged to every club and society, and who meticulously clipped every reference to his activities in the most trivial of newletters” (Riles). Suffice to point out for our purposes here that this outstanding character – one of the men trained at Langdell’s Harvard, a novel professor in Japan and Dean of Law at Northwestern University for most of his long life – conceived an extensive programme of translations of European texts with the purpose of developing a genuinely American legal thought. While such objective was achieved around 1930 with the emergence of the well-known Legal Realism movement (Karl Llewllyn, Jerome Frank, Max Radin, Felix Frankfurter and many others of that generation), the translations of European works that were to serve as basis resulted in several collections and over thirty texts, with more or less dissemination2, which introduced the local public to some illustrious names and their most significant works. And so, a pioneering criminological series (The Modern Criminal Science Series, 1911-1917, 9 vols.) was soon followed by a historical-legal series (1912-1928, 10 vols.), a series dedicated to the philosophy of law (Modern Legal Philosophies Series, 1911-1925, 11 vols.), and, even, a colorful and brief collection of legal anthropology (The Evolution of Law, 1915-1918, 3 vols.)3. “The efforts of the committee of publication of The Legal Philosophy Series will furnish us new philosophic basis upon which to reconstruct our system or at least our methods”, opined one reader from the Michigan Law Review, “and The Continental Legal History Series will show us how other peoples have worked out their legal problems in an experimental way”4.

This occurred at a time when it was proclaimed at Harvard that the cultivation of legal knowledge was much more than a simple professional apprenticeship, when the manner in which legal education was organized in North America – in line with the scientific requirements of (other) university disciplines – had to be opened up to the West, and, last but not least, when a legal literature with theoretical aspirations was taking off in the United States. Under such circumstances, the idea of translating more than thirty volumes by selected European publicists turned out to be an ambitious undertaking that demanded energy and an extensive network of complicities5. The leading position of Wigmore, a central figure at the American Association of Law Schools (AALS), which always supported his initiatives, ensured him institutional support and collaboration, ranging from the editorial committee of each series to the translators, editors, authors of forewords and similar writings. The rest is the result of Wigmore’s international contacts, the fruit of his travels as well as a sustained correspondence6.

Although the time has come to analyse this editorial effort as a whole, I believe that such undertaking requires a study that I can only sketch out at present. Furthermore, my experience working on the criminological and historical series allows me to put forward a number of general questions that, as such, can apply to all the collections7. Such is the case of our present study on “A tradução como chave de análise das culturas jurídicas do passado”, as demonstrated by Ricardo M. Fonseca8. Still, we are more generally committed to analyzing, no more and no less, “les conditions sociales de la circulation internationale des idées”, which the sociologist Pierre Bourdieu initiatied some years ago. In his own words:

Les textes circulent sans leur contexte ; ils n’importent pas avec eux le champ de production dont ils sont le produit, et les récepteurs, étant eux-mêmes insérés dans un champ de production différent, les réinterprètent en fonction de leur position dans le champ de réception. Une science des relations internationales en matière de culture devrait dans chaque cas prendre pour objet la série d’opérations sociales impliquées, et notamment le processus de sélection (qu’est-ce qu’on publie, qui traduit, qui publie ?) et de marquage (maison d’édition, collection, préface, etc.). De telles analyses constituent un instrument indispensable pour combattre les malentendus de l’importation et pour favoriser une véritable internationalisation de la vie intellectuelle9.

In fact, this whole work on translation operates on a unsettling metaphor10. George Steiner’s (or Jorge Luis Borges’, if we wish to be rigorous) Tower of Babel symbolises the impossibility of mutual understanding, but it also reflects the inexhaustible richness of human thought. The tower thus becomes a library and can store, among all the possible combinations of the twenty-five alphabetical symbols, the globality of the universe; indeed, it contains a version of every book written in every language11. But there lies the cultural loss entailed by translation. Sure enough, the suppression of linguistic nuance is no small matter: eliminating the original language means abandoning a universe of references, academic traditions, and narrated facts that are well localized. And I am not referring here to the “treachery” that – according to an overly elementary understanding – supposedly underlies any translation, for as Steiner once more explains, the latter involves highly aggressive operations that entail a colossal appropriation of meanings:

We can modulate Heidegger’s insistence that understanding is not a matter of method but of primary being, that “being consists in the understanding of other being” into the more naive, limited axiom that each act of comprehension must appropriate another entity [we translate into]12.

Into English, for example. It was by no means surprising – as we shall see below – that the texts produced by Wigmore lacked even a model. From this perspective, any attempt to contrast the original work with its translation would be bound to fail, for American publishers-translators had no qualms about inventing the text. It seems even possible to go a little further and assert, by quoting Umberto Eco, that:

Toda traducción es producto del marco conceptual que le da lugar… desde [tal] perspectiva, se hace muy difícil reducir el fenómeno de la traducción a la cuestión de la fidelidad o de la equivalencia… Traducción es lo que en el contexto de destino se considera traducción… [El traductor] habrá de reconocer que esa consideración, esas normas que determinan qué se traduce y cómo se traduce… están muy lejos de ser imparciales y objetivas.

If we read the words of the Bolognese semiotician carefully, we can conclude that translation “produces” the “original” itself, to the extent required by the culture (time, place, language, style, function), of the host camp. Thus, if the process of “receiving” a text is what makes it possible to identify it as such, if the change of language fills the foreign discourse with new references, then the translation abandons its (apparently) minor role and enters fully into the realm of intellectual creation13.

A carefully selected catalogue of legal translations – comprehended, as a massive cultural operation, between the 19th and 20th centuries – would undoubtedly demonstrate that the above assertion is well grounded. Who would want to undertake to distinguish between “originals” and “translations” when booksellers themselves would blur the two? Take the example of Spanish publisher, José Lázaro (1862-1947), who asked his collaborators for

more than a rigorous translation, an adaptation, plagiarism as it were (but without omitting the name of the author, of course), that which one would do if he set out to copy a criminal code without it being known. I do not want German law translated, but a Spanish law that follows the method of a German author and uses everything that can be used of his thought, his words, etc. I do not know if I am explaining my thoughts well. To start with, I do not want any article of the German Code to be cited, because that can be very confusing14.

Consequently, it does not seem enough to compare the original work with its translation. The production of the text is surrounded by opaque operations that only thanks to a few happy circumstances, such as the preservation of the Wigmore’s Papers (or a few letters from Dorado Montero), we can document. On such happy occasions it becomes possible to answer Bourdieu’s questions about the selection (“qu’est-ce qu’on publie, qui traduit, qui publie?”) and the marquage (“maison d’édition, collection, préface, etc.”) of the books and ideas that are the subject of international transfer.

I. Standardization

When I worked on The Modern Criminal Science Series, I tried, in a somewhat intuitive way, to address those challenges. I proposed a working strategy that I referred to at the time (à la Darton)15 as the “library effect”, in allusion to the transformations of those texts that acquire another language and come together under a new one, forming a collection16. Titles with different origins and that are radically different – notwithstanding the proximity of dates – due to the local framework of production, suffer with the linguistic leap, in first place, a violent process of standardization. “Each act of translation is an endeavour to abolish multiplicity and to bring different world-pictures back into perfect congruence”, writes Steiner of the complex maneuver behind translation17. This is particularly true in the case of Wigmore, whose English versions of European works not only announced, at the beginning of the 20th century, a loss of the linguistic variety of Italians, Germans, Spaniards, French, Dutch…. to the benefit of that “Anglo-American Esperanto [used] all over the world” (Steiner, again). Those translations further undermined the contrasts that differentiated authors, books and trends, diluting them in one code of expression and identical editorial form.

However, standardization does not end there. Rather, the selection processes, the background of the core translators and prologuists, the identical editorial format, etc. all provoke a succession of alterations aimed at suppressing what is distinctive and different to the benefit of the new identity. We know for example that the notes of the Sociologia criminale by Ferri were the object of much work, especially “certain portions of the text which in this edition are intended to appear as notes”18. Bernaldo de Quirós, another of the authors of the criminological series, subsequently joined in, but at the time, he proceeded to modify its pages in view of the American edition (“recast in a new mold, which the author considers preferable”)19. As a result, changes in the order, the insertion of epigraphs and paragraphs, and the swapping of texts and notes, that is, additions and deletions, were recurrent20.

Taken too far, standarzitation makes it necessary to speak of the “tyranny’’ of translators. I have in mind the case of Giorgio del Vecchio, the official author of a jusphilosophical book – The Formal Basis of the Law (John Lisle trans., 1914) – that, in fact, lacks an original version, for its translation contains an anthology of papers that were never edited, except in North America. Another striking and extreme example I have come across can be found in the chapter titled “Codified Law and Case-Law. Their Part in Shaping the Policies of Justice”, in Science of Legal Method (1917). In it, Wigmore included a work by Édouard Lambert; nothing out of the ordinary one might say. However, this long chapter is a colossal invention of the publisher, who combined at his pleasure phrases and paragraphs taken from La fonction du Droit civil Comparé (1903)21. Following the same compositional technique, but this time in the form of a cocktail of texts of various origins, the first volume of the historical series (A General Survey of Events, Sources, Persons, and Movements in Continental Legal History, 1912) dealt with the history of German law in a chapter “written” by no less than eight different authors22. The leading role of the editor-translator in these invented texts proudly highlighted the scientific findings that the still young American jurisprudence was capable of. Once more, Bourdieu comes to our aid:

Faire publier ce que j’aime, c’est renforcer ma position dans le champ − cela que je le veuille ou non, que je le sache ou non, et même si cet effet n’entre en rien dans le projet de mon action. Il n’y a pas de mal à ça, mais il faut le savoir. Les élections mutuelles et pures se font souvent sur la base d’homologies de position dans des champs différents auxquels correspondent des homologies d’intérêts, et des homologies de styles, de partis intellectuels, de projets intellectuels23.

In this manner, the philosophical collection could be advertised by emphasizing its uniqueness (“it is believed that […] will represent in compact form a collection of materials whose equal cannot be found at this time in any single foreign literatura”), shared with the above-mentioned Survey (with a content “that there does not exist at this moment (nor has existed for one hundred years) in any European language […] a conspectus in one volume of the external data of the movement of the law (including the persons and circumstances constituting the moving forces) in all the principal countries of Europe”)24. Helmut Coing could not have put it better.

It is not surprising that the work cited above (the same is true for The Progress of Continental Law in the Nineteenth Century, volume XI of the same series, with almost twenty authors, or for Science of Legal Method, volume IX of the philosophical collection, with twelve) fails to highlight the translated authors25. As such, it constitutes a radical instance of the standardization imposed by Wigmore, who was responsible for producing texts “by patching together parts of […] different books” that were individually irrelevant26. While Altamira’s chapter was intensely rewritten by the Spanish professor (with a little over thirty percent of new material for the new edition), the predominance of the “general plan” over the singularity of the contributions reached its peak, as we know, in the patchwork on Germany. Equalized by language, system, price and cover (the catalogues announced it as “octavo in size, bound in cloth, practically uniform with The Modern Criminal Science Series and Essays in Anglo-American Legal History”)27, this first derivative of our “library effect” generated, in conclusion, falsely European books that only existed in the American version28. (It would be interesting to explore one day the authors’ opinion on the free translations by Wigmore and his friends. We know there was no shortage of criticism, at least in the case of François Gény, one of the authors included in Science of Legal Method: “When I saw him in 1926”, wrote an eyewitness, “he was very indignant that Wigmore had not asked his permission for the selections made and that he had received no royalties on them!”)29.

II. Americanization

It is obvious that the aim of standardizing the texts that were translated/invented by Wigmore was to acclimatize them to his own cultural environment. The Americanization of the collections – the second and obligatory consequence of the “library effect” – required that the “original” works be surrounded by paratexts that inserted the “European” books into the American space of reception. In fact, if we come back for a moment to Bourdieu’s warnings and carry out a brief recapitulation of them, we realize that the de-contextualizing of a book, a “condition sociale” necessary for the international circulation of ideas, would be somewhat limited without those literary pieces that make up the new context30. According to the French sociologist, this is the work of the préfacier, the second genuine author,

qui présente l’œuvre en se l’appropriant et en l’annexant à sa propre vision et, en tout cas, à une problématique inscrite dans le champ d’accueil et qui ne fait que très rarement le travail de reconstruction du champ d’origine.

Still, in the translations we studied, this “appropriative” endeavour became more complex and expanded to cover several fronts. The volumes first began with a “General Introduction” signed by the editorial committee of each series (it was actually Wigmore’s doing)31. Composed upon the motion that was submitted to the American Association of Law Schools for approval of the collection (always “published under the auspices of the Association”), and subsequently used in the newsletters of the publishing house, the “General Introduction” was intended to capture the attention of the public by emphasizing the interest of the exotic endeavor. Such interest lay in the comparative vision of legal phenomena in the historical series, the need to approach crime according to the most advanced studies in criminology, and the reflection, still unprecedented in the United States, on the legal method and the theoretical dimension that was convenient to the study of American law, as the reason underlying the philosophical collection.

There followed an “Editorial Preface” that introduced the singular volume Here, the préfacier – quite often Wigmore, once more – confidently claimed the translated work, exhibiting scientific competences that he did not always possess32. He also fulfilled the mission of presenting the foreign author, whose excellence was not necessarily known in the country of reception33. To end with, the publication was completed with one or two specific “Introductions” by prestigious local authors (for example, Oliver W. Holmes in the general volume of legal history, or Roscoe Pound in Raymond Saleilles’Individualization of Punishment, 1911). Indeed, a renowned magistrate or an authoritative professor “naturally” drew readers to the pages they themselves endorsed. It could even happen that the prologues engaged the European colleague in a sort of inter absentes debate and thus reassured, where necessary, the understandable scruples of a local reader who was confronted with ideas that he was partially or completely unfamiliar with34 (But Bourdieu already said that the prologue “ne fait que très rarement le travail de reconstruction du champ d’origine, d’abord parce que c’est beaucoup trop difficile”).

In any case, it is clear that the preliminary notes adapted the foreign work to the place of reception. We are thus looking at the “incorporation” of the original book into the new language (Steiner), an instant that “can potentially dislocate or relocate the whole of the native structure… Here two families of metaphor, probably related, offer themselves, that of sacramental intake or incarnation and that of infection”35. Thus, the European texts could “become infected” with American references (Smithers on Ferri), show that a foreign discourse easily “concurred” with Anglo-Saxon currents36, be lauded and criticized at the same time37, or serve, in another attempt at “incarnation”, to apply foreign conclusions to local problems38. That is why it was not uncommon for Wigmore’s paratexts to inform the reading of the original work, thus constituting an added value: “the editorial preface”, a critic observed about Ferri, “enhances its value”39.

Hence, the prologues insinuate that element of the “hermeneutic motion” that translation consists in, according to Steiner’s theory, and which is defined by the term reciprocity:

Fidelity is not literalism or any technical device for rendering “spirit”. The whole formulation, as we have found it over and over again in discussions of translation, is hopelessly vague. The translator, the exegetist, the reader is faithful to his text, makes his response responsible, only when he endeavours to restore the balance of forces, of integral presence, which his appropriative comprehension has disrupted. Fidelity is ethical, but also, in the full sense, economic. By virtue of tact, and tact intensified is moral vision, the translator-interpreter creates a condition of significant exchange. The arrows of meaning, of cultural, psychological benefaction, move both ways40.

The sharp warning is especially useful when the editor-translator who produced a book based on fragments wanted to reduce the variety of analytical approaches and particular histories prior to reception – the vague idea of “continental law”, the universality of the “legal method”, modern “criminal science” – into a unitary concept. That was the assumption of the General Survey that inaugurated the legal history series. A collection of “national” reports (Italy, France, Germany, Spain, Scandinavia, Switzerland, Holland), a long foreword by Wigmore (“Editorial Preface”, p. xxxiii-xliv), a first introduction by Oliver W. Holmes (“Introduction”, p. xlv-xlvii), and another by Edward Jenks (“Introduction”, p. xlix-liii), succeeded, by offering a pan-European narrative, in sublimating the territorial contrasts that vibrated in the individual chapters. Thus assembled, they formed an overall picture with few deviations. The shared “trends”, the existence of “legal cycles”, the identity of normative responses to the same stimuli… indicated to American readers that the many European differences were, in fact, apparent representations.

III. Identification

“All history is but a seamless web”, Frederick Maitland said there, “and he who endeavours to tell but a piece of it must feel that his first sentence tears the fabric”. Maitland added:

no piece of History is true when set apart to itself, divorced and isolated. It is part of an intricately pieced whole, and must needs be put in its place in the netted scheme of events, to recieve its true color and estimation. We are all partners in a common undertaking” (Woodrow Wilson).

Both warnings, resolutely included in the volumes of the Continental Legal History Series, led to another characteristic of the above-mentioned “effect”. Suspended “between impulses to facsimile and impulses to appropriate recreation”41, the texts that Wigmore translated acquired, following their uniformization and Americanization, a brand new identity. This is the aspect of the “library effect” that I call identification.

Reading, says Borges, is always rewriting; a useful perception that also applies to that particular kind of reading that every translation demands. Now, “re-escribir un texto… implica dos momentos: la apropiación de un discurso ajeno y el cambio de su sentido original mediante la reinserción de dicho discurso en un contexto nuevo”. If we accept the opinion of an authoritative critic of the “Argentinian poet”42, we will be one step away from better understanding the transformations brought about by the readings/re-readings/translations of John H. Wigmore.

Those were born with the Modern Criminal Science series. Here are three words that the translated titles had never used – terms full of meaning, which now gave them a specific identity43. In first place, under that label, all the contributions were modern. And, as we already know,

modern, at the time, meant opposition to the tenets of classical criminal law… The “modern” view emphasized the biological and social determinants of human behaviour, the need to consider the causes and conditions of crime, and the futility of insisting on a strict equivalence between crime and punishment if the object is to reduce the incidence of criminality.

To Edward Wise’s explanation,44 we can only add that the semantic field of criminal modernity implied a value judgment, as well as a desideratum in relation to criminal justice. For the modern offered, in first place, a better method than the classic (more realistic, more effective) to combat crime. What is more, the moment of the “combat” was understood as secondary to the “cognitive” moment, for only after the “etiology” of the harmful behavior became known (“it does have natural causes, – that is, circumstances which work to produce it in a given case”: cf. “General Introduction to the Series”, p. vii) could its commission be avoided or punished effectively.

Secondly, this “modern” paradigm that wanted to detect crime at its very roots (physiological, social, and economic) carried an unwavering desideratum in the form of reforms, both substantive and procedural (particularly with regard to the execution of the sentence). In light of recent investigations, the law in force seemed too old a tool to prevent crime (“this ignorance or indifference has blocked the way to progress in administration”, ibid.), and it therefore had to be reformed.

Modern criminologists were “naturally” reformers: probation, remission of sentence, juvenile justice, plea bargaining, etc., were innovations that had emerged in the 1870s and were finally articulated coherently around the thesis of “individualized treatment”45. It is this notion that gave rise to the new science – the second element connoted by the criminological series. Most of the selected European books had assumed the “scientific” (positivist) model of reference that was so common at the turn of the century, but Wigmore used this compromising adjective for the title of the same collection. Science thus ceased to be an “intimate” textual condition, an epistemological element of the discourse itself, and became a marketing element. And so, although Saleilles’ book dismissed empirical data and that the author was indifferent to statistics, tattoos or skulls, the translation of his work brought him closer to the determinism that he had disavowed. After all, it dealt so extensively with the famous “Italian school” (cf. “The Italian School and Individualization Based upon Formidability”, pp. 99 ff) that his critiques served the American reader as a source of information. “Très souvent”, writes Bourdieu, “avec les auteurs étrangers, ce n’est pas ce qu’’ils disent qui compte, mais ce qu’on peut leur faire dire”46. Saleilles’ questioned book (the same was true for Gabriel Tarde’s Penal Philosphy, 1912) thus experienced an authentic “transfiguration” (Steiner) when entering the Wigmore series: “an act of appropriative penetration and transfer in excess of the original, more ordered, more aesthetically pleasing”47.

“Spain, Germany, Italy, France, and Holland have been called upon to teach the United States something about ‘criminal science’… the result promises to be one of the most valuable and important contributions to the literature of sociology”, announced the press of the time with conviction48. Such were the spaces of Wigmore’s Europe, which the Legal History collection brought into evidence. In this other case, the expression “continental law” served as a category of identification. A couple of volumes on the legal history of Italy, a history of the process elaborated in France, several chapters on the sources and literature of Western countries… together conformed an original “history of continental law”. The different pieces formed a coherent figure where certain “racial elements”49 and a common legal past (“the posthumous power of Roman law, forever resisting, struggling, and coalescing with the other”) overshadowed European national diversity. At the same time, the identity of the translated material was also achieved by manipulating the contributions with a drastic selection of historical periods (from the year one thousand to the codes) and of the most relevant sources (legislation, doctrine).

Seen from the United States, the history of continental law – Germanic and Roman – ran “from Danzig to Sicily, from London to Vienna”. East of the Oder and south of the Danube legal Europe did not exist, or, at least, it did not exist for the translators, nor did some regions tacitly considered “minor”, such as Belgium or Portugal, figure at all50. This mutilated Europe broadly covered the countries of origin of the translated authors according to an a priori approach that only addressed the lack of adequate texts. As such, it was for example impossible to find a Spanish book on legal history (“as to Spain I give up the struggle. I can find nothing anywhere that seems to me quite feasible”), and Wigmore’s papers went so far as to joke about the possibility of inserting advertisements in newspapers51. Nobody thought of looking a little further west on the same peninsula52.

IV. Inclusion

The limitedly international horizon of the Congress of Comparative Law that was held in Paris (1900) had not been very different, but we will not be addressing it here53. The new identity that those books acquired was a necessary step toward the generation of the fourth component of the “effect”: its inclusion within the series. From the perspective of the translated authors, who discovered a new public in English-speaking America and knew they were in good company (“works by eminent European authorities”), the most human of vanities as far as professional recoginiton goes was satisfied. All, or almost54, were ready to follow the wishes of the Chicagoan colleague, as the Spaniard Altamira confessed, “dado el valor moral que le doy al hecho de colaborar en una obra Americana de la importancia que Vs. proyectan”55. An intense previous search set in motion the extensive international network of contacts that Wigmore treasured until he found the most appropriate texts56.

The chosen works thus constituted an autonomous whole where the reciprocal links and the common elements (the English language, an identical composition in printing, the format, the prologues, the title of the series, as well the translators and other members of the editorial committee) affirmed themselves, as we have seen, over the originals. While the series as a whole presented the new context (“European”, “scientific”, “modern”, “positive”, “reformist”, “continental” etc.) any of the books in turn “contextualized” the others, the final bet having been placed on uniformity. And yet, leaving out a vast literary panorama, it seems that the reception of the books can not be solely explained by the “initial trust” of the translator as described by Steiner (“we grant ab initio that there is ‘something there’ to be understood, that the transfer will not be void”), and understood as the first step in the hermeneutic motion inherent to the act of translation57. Trust requires a previous attribution of meaning; it is supported by the extension towards the original work of the context of reception of the “librarian” or translator (values, interests, knowledge), which ultimately renders his selection plausible. This idea can be partially found in William Smithers’ not so innocent statement in his prologue to Ferri. Despite a local tradition that is remembered (“the announced but undeveloped theories of Lieber… and Drähms”), “no American writer… has devoted such untiring energy to the problem as a whole as Gross of Austria, Tarde of France, Garofalo of Italy or Bonger of Holland” (p. xxi).

It is not easy to discover the process in all its details (from the recommendation by a colleague to the personal relationship with the author, the objective interest of the subject matter, the local fame of the foreigner, etc.)58, and less so, to explain the inclusion in its negative aspect, that is, the exclusions. For example, the reasons for translating Willem A. Bonger, Criminalité et conditions économiques (1905) – a piece, as Mario Sbriccoli would say, of “diritto penale sociale”, for which forgiveness had to be requested in the opening notes – instead of Joseph van Kan, Causes économiques de la criminalité (1903)59, remain unclear. In any case, Bonger’s presence in the “library without walls” (Chartier) that is under study, like any other textual inclusion, produces “echoes”, unleashes specular phenomena (the series, as “the mirror which not only reflects but also generates light”) and, finally, an expansion of meanings. Indeed, “to class a source-text as worth translating is to dignify it immediately and to involve it in a dynamic of magnification (subject, naturally, to later review and even, perhaps, dismissal)”60.

V. Expansion

The booklets of the publishing house acclaimed “The Modern Criminal Science Series”, describing it as “comprising works by eminent European authorities”. In fact, the “authorities” were eminent by design of a translator who spared them no praise. Thus, Bernaldo de Quirós was referred to as “the most eminent of modern Spanish criminologists” (despite Francisco Giner and Rafael Salillas), Hans Gross, as “one of the half-dozen most eminent European students of Criminal Science” (as if Franz von Liszt did not exist), the famous Lombroso “is already universally known to Americans” (were Carrara, Ellero, Pessina also known to Americans?), and Enrico Ferri as “a pupil of Lombroso… a recognized leader of his school of thought, which has exercised an important influence throughout Europe”, etc.61 Such praise perfectly reflected Steiner’s “magnification” and points to one last aspect of the “library effect”. I am referring to expansion, that is, the increase in the number of the readers of a certain work by the mere circumstance of the serial publication.

Any translation is expansive when it launches the text out of its homeland. The point I would like to emphasize here though is that Wigmore’s European books, inserted in a series and with a uniform editorial format, allowed the reader to jump between volumes with ease. The ambiguity of textual consultation, so frequent in encyclopaedias and magazines, helped obtain readers, one could say, by contagion. Thus, whoever turned to Lombroso, Jhering or Calisse could end up with Saleilles, Charmont or Hübner in their hands. The collection always generates a more crowded and extensive reception space than the arithmetic sum of the potential users of each piece. The strategies of the publishing house (“eminent European authors”, etc.) simply exploited the “magnification”, the “echoes” derived from the effort of translating62, to boost sales.

***

A remarkable effort, that was. “The efforts of the committee of publication of the Legal Philosophy Series will furnish us new philosophic bases upon which to reconstruct our system or at least our methods”, we know the readers thought, “and the Continental Legal History Series will show us how other peoples have worked out their legal problems in an experimental way”. Those were solutions for concrete problems, and philosophical bases and methods for rebuilding the legal system itself. I believe the expectations with which the translations were received cannot be expressed better. It was a long battery of European texts – quite a few of which had been entirely nonexistent – that launched in Progressive America Lombroso, Ferri and Saleilles in English, but also Calisse, Brissaud, Altamira, Bonger, Gareis, Del Vecchio… and so many others. All were uniformized, included, Americanized, expanded, and identified.

1 W. R. Roalfe, John Henry Wigmore, Scholar and Reformer, Evanston (Ill.), Northwestern University Press, 1977. However, the Wigmore Papers collection

2 The minutes of the annual meetings of the American Association of Law Schools (AALS), the translation sponsor group, record complaints about low

3 But Wigmore’s theoretical and compilatory vocation had been born earlier, with the Select Essays in Anglo-American Legal History (1907-1909, 3 vols.

4 Cf. Michigan Law Review, 11, 1913, p. 342-345 (J. H. D.), p. 345. Context in J. E. Herget and S. Wallace, “The German Free Law Movement as the

5 There is extensive literature on these issues. I am merely indicating my preferences: W. Twining, Karl Llewellyn and the Realist Movement, London

6 Travel logs documenting the meetings are kept: cf. the complete catalogue – available online – of the collection John Henry Wigmore (1863-1943)

7 C. Petit, “Lombroso en Chicago. Presencias europeas en la Modern Criminal Science americana”, Quaderni fiorentini, 36, 2007, p. 801-900. I add my

8 I thank my friend Ricardo for the opportunity to present a first version of these pages at the “Culturas Jurídicas em movimento: Tempo e Espaço do

9 P. Bourdieu, “Les conditions […]”, Actes de la recherche en sciences sociales, 145, décembre 2002, p. 3-8, p. 3.

10 G. Steiner, After Babel. Aspects of Language and Translation, Oxford, University Press, 1975.

11 J. L. Borges, “La biblioteca de Babel”, El jardín de los senderos que se bifurcan (1941), now in Obras completas, I (1923-1949), Buenos Aires

12 G. Steiner, Babel, ibidem, p. 297-298.

13 Cf. Interpretación y sobreinterpretación (1992), J. G. López Guix trans., Cambridge (U.K.), Cambridge University Press, 1995, but these are

14 Archivo Universitario de Salamanca, Fondo Dorado Montero IV, 13 (31), letter from Lazaro to Dorado, October 24, 1894; also id., regarding a work by

15 R. Darnton, “La France, ton café fout le camp! De l’histoire du livre à l’histoire de la communication”, Actes de la recherche en sciences sociales

16 C. Petit, “Lombroso en Chicago”, p. 855 ff.

17 G. Steiner, Babel, op. cit., p. 235. The requirement of English as a legal condition for immigrant naturalization was introduced in the United

18 W. Smithers to Wigmore, January 24, 1916, Wigmore Papers, box 204, folder 1.

19 C. Bernaldo de Quirós, Modern Theories of Criminality. Translated from the Spanish by A. De Salvio […] with an Introduction by Wm. W. Smithers, Esq

20 I had the opportunity to observe it in some detail in R. Altamira, Spain, op. cit., p. xxxix ff.

21 Paragraphs are taken from p. 16-18, 61, 63, 74, 88, 93-95, 95-100, 110-112, 173-199, 795-796, 799-811, 821-823 and 903.

22 H. Brunner, R. Stintzing, E. Landesberg, J. E. Otto Stobbe, R. Schröder, H. Siegel, H. Zoepfel and E. Freund […]. A chapter, some critic wrote, “

23 “Circulation internationale des idées”, p. 5.

24 See “General introduction […]” by the Editorial Committee (h. e., Joseph H. Drake, Albert Kocourek, Ernest G. Lorenzen, Floyd R. Mecham, Roscoe

25 Fourteen, since two others, the Englishman Frederick Maitland and Ernst Freund, an American jurist of German origin, were English-speaking. In any

26 John H. Wigmore to Rafael Altamira, April 8, 1911, Wigmore Papers, box 199, folder 2.

27 Cf. Little, Brown, & Company, The Law Book Bulletin, 60, March, 1912, Wigmore Papers, box 198, folder 8 (“Promotional Materials, 1912”).

28 An illustration of the argument is the “Rapport to the Committee in the Study of Legal History”, prepared for the 1914 meeting of the AALS. “The

29 “I ought, however, to warn you [h. e. Jerome Hall] that the old gentleman – if he is still alive – is quite fussy. When I saw him in 1926 he was

30 Publishing formats, typography, uniformity in the indexes also fulfilled this function […]. Issues that I will hardly address at present.

31 Cf. Wigmore Papers, box 204, folder 1. John H. Wigmore to William W. Smithers, December 28, 1909, on the draft introduction to the criminological

32 But appropriation was not free; it was paid for with a good dose of work. “Experience has shown us that the editorial member of the committee

33 “The Editorial Preface has for its main function to give some account of the reputation and works of the author”, Wigmore generally warned in a

34 Cf. F. H. Norcross (“Chief Justice of the Nevada Supreme Court”), “Introduction to the Volume”, xix-xxii, in W. A. Bonger, Criminality and Economic

35 G. Steiner, Babel, op. cit., p. 299.

36 “Translator’s Preface”, p. xi-xv, in R. Garofalo, Criminology, trans. by Robert Wyness Millar. with an Introduction by E. Ray Stevens, Boston

37 The author of Criminal Sociology “eminently deserves […] to be called a criminal sociologist in the true sense, even though one may have to

38 For example, prostitution or the relationship between alcoholism and delinquency: cf. M. Parmelee, “Editorial Preface to this Volume”, in Gustav

39 Cf. E. Ferri, “Criminal Sociology” (1917), Journal of the American Institute of Criminal Law and Criminology, 8, 1917-1918, p. 629-635 (A. J. Todd)

40 G. Steiner, Babel, op. cit., p. 308-309, p. 302.

41 G. Steiner, Babel, op. cit., p. 235.

42 V. G. Zonana, “Varia fortuna de Pierre Menard: proyecciones del concepto borgiano de re-esritura en la teoría literaria”, Anales de literatura

43 I follow closely what I had the opportunity to argue in C. Petit, “Lombroso en Chicago”, p. 858 ff.

44 E. M. Wise, “The International Association of Penal Law and the Problem of Organized Crime”, Wayne Law Review, 44, Fall 1998, p. 1281-1304, p. 1287

45 In spite of belonging to the “classical school” and thus being the object of criticism in the translation committee (cf. Memorandum, December 9

46 “Circulation internationale des idées”, p. 5.

47 G. Steiner, Babel, op. cit., p. 298. See p. 402: “The translator produces a piece of work which surpasses the original in stylistic quality or in

48 Cf. Wigmore Papers, box 204, folder 2. Here is the prospectus of the series (ca. 1913) with a list of its nine volumes (the translator is indicated

49 “Iberian, Celtic, Roman, Gothic, Frankish, Moorish, Reconquest, Bourbon” for Spain: cf R. Altamira, Spain, op. cit., p. xvi. On the very long

50 “The plan of the work does not include Eastern Europe nor, what is a more serious omission, European colonies. Any full treatment of colonial law

51 R. Altamira, Spain, op. cit., p. xix.

52 T. Braga, Historia do direito portuguez, I. Os foraes, Coimbra, Imp. da Universidade, 1868; P. Martins, História geral do direito romano

53 C. Petit, “Lambert en la Tour Eiffel, o el derecho comparado de la belle époque”, La comparazione giuridica tra Otto e Novecento, A. Padoa-Schioppa

54 Very resolute and distant, almost rude, was Hermann Kantorowicz’s response (May 25, 1914) to Wigmore’s invitations to collaborate on the legal

55 Altamira to Wigmore, June 7, 1911, Wigmore Papers, box 199, folder 2, but similar testimonies abound: for example, Carlo Calisse to Wigmore

56 For the historical series, vid. R. Altamira, Spain, op. cit., p. xviii ff. For the criminological series, C. Petit, “Lombroso en Chicago”, art. cit

57 G. Steiner, After Babel, op. cit., p. 296.

58 This last aspect is situated behind the criminological series and therefore at the birth of the project of all the translations. Enrico Ferri’s

59 A Wigmore handout (cf. Wigmore Papers, box 204, folder 2) contains a “Mem. of desirable volumes to add as a Supplementary Series” in the

60 G. Steiner, Babel, op. cit., p. 300. Thus, the Italian I. Vanni, The Positive Philosophy of Law, was “dismissed” from the philosophical series, as

61 I continue with Wigmore Papers, box 204, folder 2. Here is the prospectus of the series (ca. 1913) with a list of its nine volumes (the translator

62 At some point it will be necessary to demonstrate with bibliometric strategies the effective diffusion of translations. Cf. N. Hakim and A. Monti

Bibliography

The Modern Criminal Law Series

1. Constancio Bernaldo de Quirós, Modern Theories of Criminality, translated from the Spanish by Alfonso de Salvio, with an Introduction by W. W. Smithers (1911).

2. Hans Gross, Criminal Psychology, translated from the 4th German ed. by Dr. Horace M. Kallen, with an American Preface by the Author, and an Introduction by Joseph Jastrow (1911).

3. Cesare Lombroso, Crime, its Causes and Remedies, translated by Henry P. Horton, M.A., with an Introduction by Maurice Parmelee (1911).

4. Raymond Saleilles, The Individualization of Punishment, translated from the 2nd French ed. by Mrs Rachel Szold Jastrow, with an Introduction by Roscoe Pound (1911).

5. Gabriel Tarde, Penal Philosophy, translated from the 4th French ed. by Rapelje Howell, with an Editorial Preface by Edward Lindsay, and with an Introduction by Robert H. Gault (1912).

6. Gustav Aschaffenburg, Crime and ist Repression, translated from the 2nd German ed. by Adalbert Albrecht, with an Editorial Preface by Maurice Parmelee, and an Introduction by Arthur C. Train (1913).

7. Raffaele Garofalo, Criminology, translated from the 1st Italian and 3rd French ed. by Robert W. Millar, with an Introduction by E. Ray Stevens (1914).

8. Willem Adriaan Bonger, Criminality and Economic Conditions, translated by Henry P. Horton, with an Editorial Preface by Edward Lindsay, and with an Introduction by Frank H. Norcross (1916).

9. Enrico Ferri, Criminal Sociology, translated from the 4th Italian and 2nd French ed. by Joseph I. Kelly and John Lisle, edited by William Smithers, with Introductions by Charles A. Ellwood and Quincy A. Myers (1917).

The Continental Legal History Series

1. A General Survey of Events, Sources, Persons, and Movements in Continental Legal History, by Various European Authors, translated by Rapelje Howell, F. S. Philbrick, and John H. Wigmore (1912).

2. Great Jurists of the World, edited by Sir John Macdonell and Edward Manson, with an Introduction by Van Vechten Veeder. With Portraits (1914).

3. Jean Brissaud, History of French Private Law, translated from the 2nd French ed. by Rapelje Howell; with Introductions by W. S. Holdsworth and John H. Wigmore (1912).

4. Rudolph Hübner, History of Germanic Private Law, translated by Francis S. Philbrick; with an Editorial Preface by Ernest G. Lorenzen and Introductions by Paul Vinogradoff and William E. Walz (1918).

5. Adhémar Esmein, History of Continental Criminal Procedure, with special reference to France, translated by John Simpson, with an Editorial Preface by William E. Mikell, and Introductions by Norman M. Trenholme and William Renwick Riddell (1913).

6. Carl Ludwig von Bar, History of Continental Criminal Law, translated by Thomas S. Bell and Others; with an Editorial Preface by John H. Wigmore, and Introductions by William Renwick Riddell and Edwin R. Keedy (1916).

7. Arthur Engelmann, History of Continental Civil Procedure, with a Chapter by E. Glasson, translated by Robert W. Millar, with Introductions by William Searle Holdsworth and Samuel Williston (1927).

8. Carlo Calisse, History of Italian Law, translated by Layton B. Register, with Introductions by Frederick Parker Walton and Hessel E. Yntema (1928).

9. Jean Brissaud, History of French Public Law, translated by James W. Garner with an Introduction by Harold D. Hazeltine and Westel W. Willoughby (1915).

10. The Progress of Continental Law in the Nineteenth Century, by Various Authors, translated by Layton B. Register and Ernest Bruncken, Preface and Introductions by John H. Wigmore, Edwin M. Borchard, and Sir Frederick Pollock (1918).

The Modern Legal Philosophies Series

1. Karl Gareis, Introduction to the Science of Law. Systematic Survey of the Law and Principles of Legal Study, translated from the 3rd, rev. ed. of the German by Albert Kocourek, with an Introduction by Roscoe Pound (1911).

2. Fritz Berolzheimer, The World’s Legal Philosophies, translated from the German by Rachel Szold Jastrow, with an Introduction by Sir John Macdonell and by Albert Kocourek (1912).

3. Luigi Miraglia, Comparative Legal Philosophy Applied to Legal Institutions, translated from the Italian by John Lisle, with an Introduction by Albert Kocourek (1912).

4. N. M. Korkunov, General Theory of Law, English Translation by W. G. Hastings (1909).

5. Rudolph von Ihering, Law as a Means to an End, translated from the German by Issac Husik, with an Editorial Preface by Joseph H. Drake and with Introductions by Henry Lamm and W. M. Geldart (1913).

7. Alfred Fouillé, Modern French Legal Philosophy, and Others, translated by Mrs. Franklin W. Scott and Joseph P. Chamberlain, with an Editorial Preface by Arthur W. Spencer and with Introductions by John B. Winslow and F. P. Walton (1916).

8. Science of Legal Method. Select Essays by Various Authors, translations by Ernest Bruncken and Layton B. Register, with Introductions by Henry N. Sheldon and by John W. Salmond (1917).

9. Giorgio del Vecchio, The Formal Bases of Law, translated by John Lisle, with an Editorial Preface by Joseph H. Drake, and with Introductions by Sir John Macdonell and Shepard Barclay (1914).

10. Josef Kohler, Philosophy of Law, translated from the German by Adalbert Albrecht, with an Editorial Preface by Albert Kocourek, and with Introductions by Orrin N. Carter and William Caldwell (1914).

11. Pierre Tourtoulon, Philosophy in the Development of Law, translated by Martha McC. Read, with an Editorial Preface by Morris R. Cohen and an Introduction by Andrew A. Bruce (1922).

The Evolution of Law Series

1. Sources of Ancient and Primitive Law, compiled by Albert Kocourek and John H. Wigmore (1915).

2. Primitive and Ancient Legal Institutions, compiled by Albert Kocourek and John H. Wigmore (1915).

3. Formative Influences of Legal Development, compiled by Albert Kocourek and John H. Wigmore (1918).

Notes

1 W. R. Roalfe, John Henry Wigmore, Scholar and Reformer, Evanston (Ill.), Northwestern University Press, 1977. However, the Wigmore Papers collection, housed at the University Archives, will undoubtedly bring new news and references. A few years ago I had the pleasure of working there with the invaluable assistance of Mr. Kevin B. Leonard, archivist. Also, A. Riles, “Encoutering Amateurism: John Henry Wigmore and the Uses of American Formalism”, Rethinking the Masters of Comparative Law, Riles (ed.), Oxford-Portland (Or.), Hart Pub., 2001, p. 94-126, p. 95.

2 The minutes of the annual meetings of the American Association of Law Schools (AALS), the translation sponsor group, record complaints about low sales, with requests for subscriptions to university libraries; cf. e.g. AALS-Proceedings, 22, 1924, p. 21-22, Wigmore’s report on the philosophical series. The cause was seen in the modest presence of the respective subjects in the university curriculum: AALS-Proceedings, 15, 1915, p. 54-56.

3 But Wigmore’s theoretical and compilatory vocation had been born earlier, with the Select Essays in Anglo-American Legal History (1907-1909, 3 vols.).

4 Cf. Michigan Law Review, 11, 1913, p. 342-345 (J. H. D.), p. 345. Context in J. E. Herget and S. Wallace, “The German Free Law Movement as the Source of American Legal Realism”, Virginia Law Review, 73, 1987, p. 399-455. See N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence, Chicago (Ill.), University of Chicago Press, 1998.

5 There is extensive literature on these issues. I am merely indicating my preferences: W. Twining, Karl Llewellyn and the Realist Movement, London, Weidenfeld and Nicholson, 1973; R. Stevens, Law School: Legal Education in America from the 1850s to the 1980s, Chapel Hill, U. of North Carolina University Press, 1983; American Legal Realism, W. W. Fisher III, M. J. Horwitz, T. Reed eds., New York, Oxford University Press, 1993; M. Reimann, Historische Schule und common law. Die deutsche Rechtswissenschaft des 19. Jahrhunderts im amerikanischen Rechtsdenken, Berlin, Dunker & Humblot, 1993.

6 Travel logs documenting the meetings are kept: cf. the complete catalogue – available online – of the collection John Henry Wigmore (1863-1943) Papers, 1868-2006, Series 17/20, boxes 1-245, box 11, folders 8 and 9, box 12, folders 1-12 with “Travel diaries” (Northwestern University Archives). On the Continental Legal History Series cf. for example Wigmore’s memorandum to the editorial board, October 10, 1910, on German works: “During a visit in Munich this summer I went over this subject very fully with Professor Karl Von Amira, who took a great deal of interest. He realized all of our difficulties, and he concluded by strongly recommended Huebner as the very best book for our purpose” (Wigmore Papers, box 198, folder 5 [“Advisers”]).

7 C. Petit, “Lombroso en Chicago. Presencias europeas en la Modern Criminal Science americana”, Quaderni fiorentini, 36, 2007, p. 801-900. I add my recent edition of a text by Altamira, published at the beginning of the history of law series: R. Altamira, Spain, Sources and Development of Law, Estudio preliminar y edición de Carlos Petit, Madrid, Dykinson/Universidad Carlos III de Madrid, 2018.

8 I thank my friend Ricardo for the opportunity to present a first version of these pages at the “Culturas Jurídicas em movimento: Tempo e Espaço do direito” seminar, held in Curitiba (Brazil), on August 31, 2018.

9 P. Bourdieu, “Les conditions […]”, Actes de la recherche en sciences sociales, 145, décembre 2002, p. 3-8, p. 3.

10 G. Steiner, After Babel. Aspects of Language and Translation, Oxford, University Press, 1975.

11 J. L. Borges, “La biblioteca de Babel”, El jardín de los senderos que se bifurcan (1941), now in Obras completas, I (1923-1949), Buenos Aires, Emecé, 1989, p. 465-471. Cf. G. Steiner, Babel, op. cit., p. 69 ff.

12 G. Steiner, Babel, ibidem, p. 297-298.

13 Cf. Interpretación y sobreinterpretación (1992), J. G. López Guix trans., Cambridge (U.K.), Cambridge University Press, 1995, but these are recurrent arguments throughout his work. I cannot go here into an important variable that affects legal knowledge, from a renewed concept of creative operations of “reception”: D. E. López Medina, Teoría impura del Derecho. La transformación de la cultura jurídica latinoamericana, Bogotá, Legis Editores, 2004.

14 Archivo Universitario de Salamanca, Fondo Dorado Montero IV, 13 (31), letter from Lazaro to Dorado, October 24, 1894; also id., regarding a work by the Italian Sighele: “more than translation here has to be adaptation”. On the important character, art collector and producer of texts (among them, translations of authors present in American books: Lombroso, Ferri, Garofalo, Tarde), cf. J. A. Yeves Andrés, “José Lázaro Galdiano, bibliophile and editor, and Goya”, Goya. Revista de Arte, 252, 1996, p. 331-340.

15 R. Darnton, “La France, ton café fout le camp! De l’histoire du livre à l’histoire de la communication”, Actes de la recherche en sciences sociales, 100, 1993, p. 16-26 (“book effect”).

16 C. Petit, “Lombroso en Chicago”, p. 855 ff.

17 G. Steiner, Babel, op. cit., p. 235. The requirement of English as a legal condition for immigrant naturalization was introduced in the United States just two years before the birth of the series with the Naturalization Act, 1906: cf. W. Schroth, “Language and Law”, American Journal of Comparative Law, 46, 1998 Supp., p. 17-39; M. DiChiara, “A Modern Myth. The Necessity of English as the Official Language”, Boston College Third World Journal, 17, Winter 1997, p. 101-131: the reason for “English-only” would have this kind of background (and even worse: prohibition of the use of indigenous languages, withdrawal of suffrage, always for linguistic reasons, from the Yiddish New Yorker population and the Californian Chinese, etc.). See G. Steiner, Babel, op. cit., p. 51 on the “sovereignty” of major languages.

18 W. Smithers to Wigmore, January 24, 1916, Wigmore Papers, box 204, folder 1.

19 C. Bernaldo de Quirós, Modern Theories of Criminality. Translated from the Spanish by A. De Salvio […] with an Introduction by Wm. W. Smithers, Esq. Boston, Little, Brown, and Company, 1911. The last chapter was totally new: “The Scientific Investigation of Crime”.

20 I had the opportunity to observe it in some detail in R. Altamira, Spain, op. cit., p. xxxix ff.

21 Paragraphs are taken from p. 16-18, 61, 63, 74, 88, 93-95, 95-100, 110-112, 173-199, 795-796, 799-811, 821-823 and 903.

22 H. Brunner, R. Stintzing, E. Landesberg, J. E. Otto Stobbe, R. Schröder, H. Siegel, H. Zoepfel and E. Freund […]. A chapter, some critic wrote, “necessarily uneven and often scrappy”, Harvard Law Review, 26, 1913, p. 766-767 (C. H. H.).

23 “Circulation internationale des idées”, p. 5.

24 See “General introduction […]” by the Editorial Committee (h. e., Joseph H. Drake, Albert Kocourek, Ernest G. Lorenzen, Floyd R. Mecham, Roscoe Pound, Arthur W. Spencer, John W. Wigmore, chairman), Science of Legal Method. Select Essays by Various Authors, E. Bruncken and L. B. Register trans., with intr. by H. N. Sheldon and J. W. Salmond, Boston, The Boston Book Company, 1917, v-x, p. xiii. On the legal historical series see John H. Wigmore to Rafael Altamira, 17 Apr. 1911, in Wigmore Papers, box 199, folder 2.

25 Fourteen, since two others, the Englishman Frederick Maitland and Ernst Freund, an American jurist of German origin, were English-speaking. In any case, the book offers the reader a “List of Collaborators", p. v, where their names were lost behind the introductions and the translators; Wigmore, of course, was among them.

26 John H. Wigmore to Rafael Altamira, April 8, 1911, Wigmore Papers, box 199, folder 2.

27 Cf. Little, Brown, & Company, The Law Book Bulletin, 60, March, 1912, Wigmore Papers, box 198, folder 8 (“Promotional Materials, 1912”).

28 An illustration of the argument is the “Rapport to the Committee in the Study of Legal History”, prepared for the 1914 meeting of the AALS. “The Association should know that the editorial work is anxiously supervised […]. Each manuscript is revised in toto by one member of the Committee, before being sent to the printer; the proofs are then read by both the translator and the editorial member, and a duplicate is inspected by the Chairman of the Committee. The amount of scholarly skill and laborious time devoted by most of the translators is worthy of the highest respect, and this Committee desires publicly to acknowledge its gratitude”. Cf. Wigmore Papers, box 198, folder 6 “[General Correspondence]”.

29 “I ought, however, to warn you [h. e. Jerome Hall] that the old gentleman – if he is still alive – is quite fussy. When I saw him in 1926 he was very indignant that Wigmore hat not asked his permission for the selections made and that he had received no royalties on them! His notion of what these things pay was curiously exaggerated”. Letter from Max Radin to Jerome Hall, April 11, 1940, at Bancroft Library, UC Berkeley, Max Radin Papers, 76/165c, carton 2, on the possibility of relying on the French civilist and theorist for a collection to continue the Modern Legal Philosophy Series. About Radin’s meeting with Gény in Nancy, see M. Radin, Cartas romanísticas (1923-1950), Estudio y edición con una nota de lectura sobre “California y el Derecho Romano” por C. Petit, Napoli, Jovene, 2001, doc. no. 22, p. 31-31.

30 Publishing formats, typography, uniformity in the indexes also fulfilled this function […]. Issues that I will hardly address at present.

31 Cf. Wigmore Papers, box 204, folder 1. John H. Wigmore to William W. Smithers, December 28, 1909, on the draft introduction to the criminological series.

32 But appropriation was not free; it was paid for with a good dose of work. “Experience has shown us that the editorial member of the committee should go over the MS very carefully and catch all those trivialities of error which involve punctuation, typography and citation. Also that he should colate the MS, to see that all the front matter is in shape according the former usage”, Wigmore to Smithers, September 17, 1913. Cf. Wigmore Papers, box 204, folder 1.

33 “The Editorial Preface has for its main function to give some account of the reputation and works of the author”, Wigmore generally warned in a letter of September 29, 1915, to William W. Smithers, one of the editors of the Modern Criminal Science Series (cf. Wigmore Papers, box 2042, folder 1). The circumstance of this missive was an editorial misunderstanding: the sociologist Charles A. Ellwood had sent a foreword without bio-bibliographical notes that did not serve to introduce Enrico Ferri’s Criminal Sociology in a convenient way.

34 Cf. F. H. Norcross (“Chief Justice of the Nevada Supreme Court”), “Introduction to the Volume”, xix-xxii, in W. A. Bonger, Criminality and Economic Conditions, trans. by Henry P. Horton, with an Editorial Preface by Edward Lindsey, Boston, Little, Brown, and Company, 1916, p. xxii: “the value [de la obra] does not depend upon an agreement with the views of the author. The book will bring to the American reader a depth and breadth of view most valuable to the administrator of criminal law and those interested in the wider field of social progress”. See Bonger, “Preface to the American Edition”, p. xxvii: “I am fully convinced that my ideas about the etiology of crime will not be shared by a great many readers of the American edition”; Bonger defended, from a socialist position, that the improvement of vital conditions of the proletarian class was the only truly effective measure to eradicate delinquency.

35 G. Steiner, Babel, op. cit., p. 299.

36 “Translator’s Preface”, p. xi-xv, in R. Garofalo, Criminology, trans. by Robert Wyness Millar. with an Introduction by E. Ray Stevens, Boston, Little, Brown, and Company, 1914, Cf. p. xi: “Anglo-Saxon influences have not been without their part in the ground work of his system. Here Darwin, Spencer, and Bagehot have all contributed to shape his thought and color his ideas”.

37 The author of Criminal Sociology “eminently deserves […] to be called a criminal sociologist in the true sense, even though one may have to criticize the sociology upon which he builds his general view of the problem of crime” (Ellwood). Cf. E. Ferri, Criminal Sociology, Translated by Joseph I. Kelly […] and John Lisle […], Edited by W. W. Smithers, with an Introduction by C. A. Ellwood and Q. A. Myers, Boston, Little, Brown and Co., 1917, p. xxviii.

38 For example, prostitution or the relationship between alcoholism and delinquency: cf. M. Parmelee, “Editorial Preface to this Volume”, in Gustav Aschaffenburg, Crime and Its Repression […], trans. by A. Albrecht […], with an Editorial Preface by Maurice Parmelee […] and an Introduction by A. C. Train[…], Boston, Little, Brown, and Company, 1913.

39 Cf. E. Ferri, “Criminal Sociology” (1917), Journal of the American Institute of Criminal Law and Criminology, 8, 1917-1918, p. 629-635 (A. J. Todd), p. 634.

40 G. Steiner, Babel, op. cit., p. 308-309, p. 302.

41 G. Steiner, Babel, op. cit., p. 235.

42 V. G. Zonana, “Varia fortuna de Pierre Menard: proyecciones del concepto borgiano de re-esritura en la teoría literaria”, Anales de literatura hispanoamericana, 21, 1992, p. 357-364. On the reference story (“Pierre Menard, autor del Quijote”, 1939), vid. G. Steiner, Babel, op. cit., p. 70 ff: “the most acute, most concentrated commentary anyone has offered on the business of translation”.

43 I follow closely what I had the opportunity to argue in C. Petit, “Lombroso en Chicago”, p. 858 ff.

44 E. M. Wise, “The International Association of Penal Law and the Problem of Organized Crime”, Wayne Law Review, 44, Fall 1998, p. 1281-1304, p. 1287-1288.

45 In spite of belonging to the “classical school” and thus being the object of criticism in the translation committee (cf. Memorandum, December 9, 1909: “In regard to Saleilles, it should be explained that one member of the Committee [Maurice Parmelee] is decidedly of opinion against the utility of that book, but that two other members […] are strongly of the opinion that it is a most valuable one for lawyers, and is essential to the scheme”, Wigmore Papers, box 204, folder 1), it was opportune to include in the series Raymond Saleilles, Individualization of Punishment […], with an Introduction by Gabriel Tarde […] Translated from the second French edition by Rachel Solzd Jastrow. With an Introduction […] by Roscoe Pound […] Boston, Little, Brown, and Company, 1911. In addition, the Saleilles was a recommended book for the Modern Legal Philosophy Series (Charles Gide to Wigmore, December 15, 1910, in Wigmore Papers cit.).

46 “Circulation internationale des idées”, p. 5.

47 G. Steiner, Babel, op. cit., p. 298. See p. 402: “The translator produces a piece of work which surpasses the original in stylistic quality or in emotional scope”.

48 Cf. Wigmore Papers, box 204, folder 2. Here is the prospectus of the series (ca. 1913) with a list of its nine volumes (the translator is indicated) and fragments of praiseworthy reviews; the one quoted was published in the New York Herald.

49 “Iberian, Celtic, Roman, Gothic, Frankish, Moorish, Reconquest, Bourbon” for Spain: cf R. Altamira, Spain, op. cit., p. xvi. On the very long duration of Spanish legal history (“on account of the peculiar and complex origins of Spanish law”), vid. p. l ss.

50 “The plan of the work does not include Eastern Europe nor, what is a more serious omission, European colonies. Any full treatment of colonial law would, of course, have been out of the question, but a large part of the significance of certain legal systems lies in the extent of their influence, and the reader would at least like to know something of the spread of the law of France and Spain to the New World”, Harvard Law Review, 26, 1913, cit. (C.H.H.).

51 R. Altamira, Spain, op. cit., p. xix.

52 T. Braga, Historia do direito portuguez, I. Os foraes, Coimbra, Imp. da Universidade, 1868; P. Martins, História geral do direito romano, peninsular e português, ibidem, 1905; J. Caeiro da Mata, História do direito português, Coimbra, F. França Amado, 1911. Cf. A. M. Hespanha, “Historiografía jurídica e política do direito (Portugal, 1900-1950)”, Análise Social, 18, 1982, p. 795-812.

53 C. Petit, “Lambert en la Tour Eiffel, o el derecho comparado de la belle époque”, La comparazione giuridica tra Otto e Novecento, A. Padoa-Schioppa (cur.), Milano, Istituto Lombardo, 2001, p. 53-98.

54 Very resolute and distant, almost rude, was Hermann Kantorowicz’s response (May 25, 1914) to Wigmore’s invitations to collaborate on the legal philosophy series with the translation of Der Kampf um die Rechswissenchaft: “An meiner Forderung muss ich leider festhalten. Es ist gleichgültig, ob meine Schrift übersezt wird oder nicht; es ist nicht gleichgültig derselbe wissenschaftliche Arbeit Lohn empfängt oder − nur ein Trinkgeld”, Wigmore Papers, box 207, folder 5. Wigmore had offered him $10 in royalties.

55 Altamira to Wigmore, June 7, 1911, Wigmore Papers, box 199, folder 2, but similar testimonies abound: for example, Carlo Calisse to Wigmore, December 17, 1909, ibidem, “The authors are among the most eminent in their fields”, p. 4, proudly proclaimed the catalogues; cf The Continental Legal History Series […], Translated and Published under the Auspices of the American Association of Law Schools, Boston, Little, Brown, and Company, Wigmore Papers, box 198, folder 8 (“Promotional Materials, ca. 1912”).

56 For the historical series, vid. R. Altamira, Spain, op. cit., p. xviii ff. For the criminological series, C. Petit, “Lombroso en Chicago”, art. cit., p. 840 ff.

57 G. Steiner, After Babel, op. cit., p. 296.

58 This last aspect is situated behind the criminological series and therefore at the birth of the project of all the translations. Enrico Ferri’s celebrity (“a magnetic man […] one of the best orators in Europe”) motivated repeated offers from Wigmore to teach a course in Chicago (“you would be the first one to fill that place in our University […] it is with pleasure that I report that our Faculty unanimously believe that you are its first choice, among European jurists, for presenting the subject to the American Bar […] the propaganda of the Science of Criminology among the American legal profession, who are hitherto quiete deaf to its appeals”), which would also be useful to disseminate a translation of the Sociologia criminale that Wigmore wanted. The Italian penalist’s exaggerated economic demands (“he likes notoriety, and also likes to make money”) frustrated the operation. Cf. C. Petit, “Lombroso en Chicago”, p. 830 ff, documents (1908-1909) at p. 876-882.

59 A Wigmore handout (cf. Wigmore Papers, box 204, folder 2) contains a “Mem. of desirable volumes to add as a Supplementary Series” in the criminological collection, with three titles: Ladislaus v. Thot [h.e. Lászlo Thót], History of the Literature of Criminal Law in Countries other than Germany, 1912; H. Gross, Criminal Police Science, “being 7th. ed. 1912 of Hans’ Gross Handbuch der Untersichungsrichter” and a Psychology of Crime, author not mentioned. Nothing was done about these possible supplements.

60 G. Steiner, Babel, op. cit., p. 300. Thus, the Italian I. Vanni, The Positive Philosophy of Law, was “dismissed” from the philosophical series, as the announced translation was delayed and positivist thought was later overcome. Cf. AALS-Proceedings, 26, 1928, p. 154-155, final report of the committee.

61 I continue with Wigmore Papers, box 204, folder 2. Here is the prospectus of the series (ca. 1913) with a list of its nine volumes (the translator is indicated) and a) general presentation (which depends on the “General Introduction” written by Wigmore), b) description of authors and contents with indication of the price, c) newsletter for subscriptions, d) fragments of praiseworthy reviews. There is another prospectus from an earlier date, with news of “Officers of the American Institute of Criminal Law and Criminology”, with Wigmore, of course, in the lead.

62 At some point it will be necessary to demonstrate with bibliometric strategies the effective diffusion of translations. Cf. N. Hakim and A. Monti, “Histoire de la pensée juridique et analyse bibliométrique: l’example de la circulation des idées entre la France et l’Italie à la belle époque”, Clio@Themis. Revue électronique d’histoire du droit, 14, 2018, p. 1-33.

References

Electronic reference

Carlos Petit, « John H. Wigmore and European Culture in the Progressive Era », Clio@Themis [Online], 16 | 2019, Online since 29 mars 2021, connection on 17 septembre 2021. URL : https://publications-prairial.fr/cliothemis/index.php?id=541

Author

Carlos Petit

Universidad de Huelva – Facultad de derecho

Copyright

CC BY-NC-SA