Notes
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.
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.
But Wigmore’s theoretical and compilatory vocation had been born earlier, with the Select Essays in Anglo-American Legal History (1907-1909, 3 vols.).
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.
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.
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”]).
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.
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.
P. Bourdieu, “Les conditions […]”, Actes de la recherche en sciences sociales, 145, décembre 2002, p. 3-8, p. 3.
G. Steiner, After Babel. Aspects of Language and Translation, Oxford, University Press, 1975.
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.
G. Steiner, Babel, ibidem, p. 297-298.
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.
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.
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”).
C. Petit, “Lombroso en Chicago”, p. 855 ff.
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.
W. Smithers to Wigmore, January 24, 1916, Wigmore Papers, box 204, folder 1.
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”.
I had the opportunity to observe it in some detail in R. Altamira, Spain, op. cit., p. xxxix ff.
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.
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.).
“Circulation internationale des idées”, p. 5.
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.
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.
John H. Wigmore to Rafael Altamira, April 8, 1911, Wigmore Papers, box 199, folder 2.
Cf. Little, Brown, & Company, The Law Book Bulletin, 60, March, 1912, Wigmore Papers, box 198, folder 8 (“Promotional Materials, 1912”).
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]”.
“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.
Publishing formats, typography, uniformity in the indexes also fulfilled this function […]. Issues that I will hardly address at present.
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.
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.
“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.
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.
G. Steiner, Babel, op. cit., p. 299.
“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”.
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.
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.
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.
G. Steiner, Babel, op. cit., p. 308-309, p. 302.
G. Steiner, Babel, op. cit., p. 235.
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”.
I follow closely what I had the opportunity to argue in C. Petit, “Lombroso en Chicago”, p. 858 ff.
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.
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.).
“Circulation internationale des idées”, p. 5.
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”.
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.
“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.
“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.).
R. Altamira, Spain, op. cit., p. xix.
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.
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.
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.
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”).
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.
G. Steiner, After Babel, op. cit., p. 296.
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.
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.
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.
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.
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.
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