A Canadian Pirate, and Other Notable Trials

We at the library would like to offer heartfelt congratulations to Osgoode’s Class of ’55, who recently celebrated their 60th Anniversary reunion! Helmed by Mr Morley Wolfe, the Class of ’55 took this occasion to offer the library a sum collected at their get-together, to be dedicated to collection development. This donation allowed the library to purchase a rare piece of Canadiana, an eight-page pamphlet detailing the trial of a pirate, “a Canadian by birth”, published in Philadelphia in 1800: The Confession of Joseph Baker, A Canadian by Birth, Who, For Murder & Piracy on the High Seas on Board the Schooner Eliza […] Was Tried On the 25th of April, 1800. As far as we can determine, ours is the only copy in Canada.

Our bookseller, from whom we acquired the pamphlet, summarized the already brief account thus:

Baker, whose real name was Boulanger, with La Croix (alias for Peterson) and La Roche (alias for Berrouse or Brous) killed the mate and supercargo on the schooner Eliza, but only wounded Captain Wheland. They agreed to let him live so he could navigate the ship ‘to the Spanish Main.’ Seizing a chance when two of the culprits were below deck, Wheland locked them in the cabin, and with an ax, drove the third into a rigging. He reached St. Kitts fourteen days later, and his three prisoners were brought back to Philadelphia in the U.S. sloop of war Ganges. Baker states that he was born at Trois-Rivieres, Quebec, in 1779, and came to New York City in 1799, where he joined with La Roche (Brous) and La Croix (Peterson), probably “a Dane or Swede,” according to Captain Wheland, whose Narrative of the Horrid Murder & Piracy was also published by Folwell at the same time as Baker’s Confession. Wheland’s account is detailed and graphic; Baker’s is even more so. Baker claimed to be a reluctant pirate who was forced into action by La Roche. As he tells it, Baker was ordered by La Roche and La Croix, who had also capitulated to La Roche, to “take the captain’s sword, and if he was a-sleep, to run it through his body, and if I did not do it, they would kill me: I went down but I could not find it in my heart to kill the captain, but struck him on the hand with a hatchet; he then jumped up and made a catch at me, and I then struck him on the head. Immediately I ran up on deck: Brous then attempted to kill me, because I had not killed the captain …” In his Narrative Wheland draws no distinction between Baker and the others that might reduce his culpability. Nor did the court. All were sentenced to hang. The confession is dated May 8th, 1800, one day before Baker and two accomplices were to be executed.

Reading Baker’s confession, I cannot help but be touched by his affirmations of innocence and reluctant participation in the crime. Apparently I’d make a terrible judge. The pamphlet is available online through the Library of Congress here, but if you have a connection through York, you can find higher quality scans through HeinOnline and Early American imprints, Series I, Evans (1639-1800). If Baker’s confession is of interest to you, the Library of Congress maintains an excellent collection of piracy trials, most of which are available online here.

Mr Wolfe, pleased to hear about the purchase facilitated by his class’s generous donation, was kind enough to stop by the library to see our new pamphlet first-hand.

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While visiting, Mr Wolfe also took some time to admire another donation of which he was a major part – that of his Notable Trials Library. These book club editions, with their decorated, quarter-leather custom bindings and gilt edges agleam, add distinction to any shelf. These editions are reprints of classic works of trial literature, covering everything from the trial of Socrates right up to the Cold War era’s most contentious courtroom battles. Each book features a short introductory essay by celebrated American lawyer Alan M. Dershowitz that contextualizes the trial and explains just why it is “notable”. From historic precedents to the attendant media frenzies, reverberations from these trials ring throughout the legal landscape still. Dershowitz himself is, among other things, a noted criminal lawyer. He is perhaps best remembered in this capacity for representing Claus von Bülow for the attempted murder of his wife, Sunny von Bülow, recounted in Dershowitz’s own Reversal of Fortune: Inside the von Bülow Case (which is, of course, one of the volumes in this collection). A list of Mr. Wolfe’s trial library can be viewed here.

A sincere thank you to Mr. Wolfe and the rest of the Class of ’55 for their donations to our collections! We’re always on the lookout for Legal Canadiana and were happy to be able to add this curious account of a Canadian pirate to our trial holdings.

The Jarvis-Irving Collection

Samuel Jarvis, 1792-1857

Samuel Jarvis, 1792-1857

In several separate purchases over the past year, the Osgoode Library has managed to acquire a collection of law books, the Jarvis-Irving Collection, comprising 32 titles (67 volumes) that belonged to Samuel Peters Jarvis (1792-1857), a lawyer and prominent Toronto citizen and member of the Family Compact in Upper Canada.

Jarvis was born in Newark (now Niagara-on-the-Lake) in 1792, when it was the capital of the colony of Upper Canada. His father, William Jarvis, enjoyed the patronage of Lieutenant Governor John Graves Simcoe, who granted him the offices of provincial secretary and registrar. Samuel Jarvis was educated at Reverend  John Strachan‘s Grammar School in Cornwall, after which he took up legal studies in the office of Attorney General William Firth. His articles were interrupted by the War of 1812, in which he saw considerable action, including service with Major-General Sir Isaac Brock at the capture of Detroit and at the Battle of Queenston Heights. He was called to Bar in 1815.

Though from an established family and well-positioned for success, Jarvis’s fiery temperament and impetuous nature initially thwarted his chances at preferment. In 1817, he killed John Ridout, son of Surveyor General Thomas Ridout, in a duel, though he was later exonerated. In 1826, with a group of other Tory young bloods, he invaded and ransacked the offices of William Lyon Mackenzie, an offence for which he was heavily fined. Despite these blots on his character, Jarvis was appointed deputy provincial secretary and registrar by Lieutenant Governor Sir Peregrine Maitland in 1827, and subsequently Chief Superintendent of Indian Affairs by Lieutenant Governor Sir Francis Bond Head in 1837. Jarvis did not prove a great success in either of these roles. After several investigations into mismanagement, the office of Chief Superintendent was abolished in in 1845 and Jarvis, in disgrace, retired to private life. Faced with financial problems, he subdivided and sold off most of the 100-acre park east of Yonge Street in Toronto that he had inherited from his father. In 1847, Hazelburn, the house he had built there 23 years earlier, was torn town to make way for for the street which still bears Jarvis’s name. Jarvis died in 1857.

This collection is called the Jarvis-Irving Collection, as it was subsequently passed on to Jarvis’s daughter-in-law’s brother, Sir Aemilius Irving (1823-1913), the longest-serving Treasurer of the Law Society of Upper Canada. We are extremely proud of this collection, as it is rare to be able to rebuild such a substantial collection of law books from so early a period in our national and legal history.

In the News: An Octocentenary of Note: Magna Carta Turns 800

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“JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, Greeting.”

In 2015, such an aureate introduction won’t even fit in a tweet. But in 1215, a full eight centuries past, politicians and leaders were not constrained by 140-character limits when they wanted to make a proclamation. King John knew he had ample space on his luxuriously vacant vellum for a loquacious lead-in, and by Jove, he was going to use it.

As John Allemang’s recent (Feb 2) excellent spread in The Globe and Mail reminds us, this year we are celebrating the 800th anniversary of the truly remarkable Magna Carta. In his thoughtful piece, Allemang roundly considers arguments from both Magna Carta’s devotees and detractors, noting that, for all the praise given it for establishing the rule of law and basic tenets of human rights, “sometimes, it is just a self-interested legal document that attempts to settle a bunch of long-simmering quarrels between one very powerful man and a few almost-as-powerful men.” However you choose to view the Magna Carta at 800, for Allemang, its “statement of principle is good enough: Don’t let the bullies push you around.” But enough with the sound-bites; please, read on at The Globe and MailPart I and Part II.

As everyone should know, the Magna Carta — also known as the Great Charter — was signed by King John in the presence of his barons at the field of Runnymede near Windsor on June 15, 1215. There are four extant copies of the Magna Carta: two at the British Library and one each at Salisbury and Lincoln cathedrals. During this octocentenary year, all four copies will be on display at the British Library, which is also hosting an exhibition, “Magna Carta: Law, Liberty, Legacy”, from March to September this year. If you find you’re too busy with law school to take a trip to England (an understandable excuse), you can view the exhibition online.

Also as part of this year’s celebrations, a copies of the Magna Carta will be sent on tour around the world. A copy of the Magna Carta from Durham Catheral — a “reissue” from 1216, accompanied by Durham’s 1225 copy of the companion Charter of the Forest — will be on exhibit in Canada from June through December, making stops in four Canadian cities (Ottawa, Toronto, Winnipeg and Edmonton). Toronto’s Fort York, will be host from October 4 to November 7, 2015. For more information, visit the Magna Carta 800 Canada website.

Coat of Arms of Osgoode Hall Law School

Coat of Arms of Osgoode Hall Law School

The Magna Carta is also features on the coat of arms of Osgoode Hall Law School. On the left side of the shield is portrayed a Doric column surmounted by a crouching beaver. Around the column is a white scroll with the words “Magna Carta Angliae” (Great Charter of England). The beaver, of course, represents Canada. The column and scroll indicate that law, the rule of law and civil rights, descending from Magna Carta, are a pillar of Canadian society. These symbols — the pillar, the beaver and the scroll — are taken directly from the Seal of the Law Society of Upper Canada in Osgoode Hall, the School’s home until 1969.

If you’d like to learn a little more about the Great Charter, a quick search through our holdings reveals numbers of texts and commentaries regarding the eminent document. Our collection includes Blackstone’s famous treatise of 1759.

“That’s the letter U and the numeral 2″

The cover of the now-notorious Negativland “U2″ EP

With the recent passing of Casey Kasem, known primarily in the US as the voice of the “American Top 40″ radio countdown and as the voice of Shaggy in the “Scooby-Doo” cartoons, I thought of one of Kasem’s more notorious outings, and one that was an early example of current hot-button topics such as copyright, fair use (an American term, sure, but increasingly close to Canadian-style fair dealing), and transformative use.

Long before law and librarianship beckoned as potential career paths, I really, really wanted to be involved in either film or television, and as part of a high school co-op program, I secured a placement at Global Television, which was a fantastic experience with lots of great memories. My boss was a former DJ and dyed-in-the-wool evangelist for radio (this was the late 90s, so pre-podcast radio-is-dying-or-dead), and I will forever remember a key piece of advice that he imparted – and one that is equally applicable in radio, television, or film – which was that if a microphone is in front of you, you have to respect it and assume that it is on. In other words, watch what you say or do, as you never know when the tape might be rolling. Many, many, many radio, TV, and film personalities have forgotten this fundamental tenet, to their everlasting embarrassment (Gord Martineau, we’re looking at you).YouTube could barely exist without this gift that keeps giving.

Pre-internet, Casey Kasem was a victim of this truism, when in 1991 the band Negativland managed to thoroughly embarrass and infuriate not only Kasem, but also the band U2’s record label, Island Records, with the release of their “U2″ EP. Somehow Negativland had managed to obtain outtakes from “American Top 40″ that captured Kasem ranting in a manner that was very, very much contrary to his relatively wholesome public image. The outtakes were interspersed with what can only be described as an cacophony that also includes snippets from and open mockery of the then-recent U2 songs “Where the Streets Have No Name” and, particularly,  “I Still Haven’t Found What I’m Looking For“. The EP had two tracks – “I Still Haven’t Found What I’m Looking For (1991 A Capella Mix)” and “I Still Haven’t Found What I’m Looking For (Special Edit Radio Mix)” which, despite effectively being disappeared in the pre-internet age, have managed to continue to exist thanks to YouTube and even a later CD release of questionable legality (but awesome title).

It is possible that Negativland would have been able to have the EP released without incident but for the album art, rather than its content. It was released just before U2’s landmark album Achtung Baby, and the giant “U2″ on the cover was seen to be misleading by U2’s record label, which successfully sued for copyright infringement in order to get the album off the shelves.

It is an interesting case, especially 23 years on, as it was coming at the tail end of a period in which sampling without attribution was a pretty common practice (as was the case in a ton of old hip-hop and rap albums and songs, notably Paul’s Boutique, Three Feet High and Rising, and “The Adventures of Grandmaster Flash on the Wheels of Steel” – among many, many others), but was ever-increasingly being curtailed by litigation surrounding the use of uncleared samples. In the realm of mainstream music, at least, sampling has largely become the reserve of wealthy, major-label acts who can afford the time and trouble to obtain clearance for recognizable samples. There are plenty of exceptions, of course, with so-called “mash-ups” becoming a recognizable and viable genre. Record labels like Illegal Art have managed to continue their existence and release music by acts such as Girl Talk, despite their dubious legality and artists like DJ Shadow and the Avalanches have largely evaded closer scrutiny by dicing the majority of samples until they’re unrecognizable.

The difference with Negativland was the fact that they embraced the notoriety that the case brought (and even published a book about it – alas, we don’t have it) and it stands as the closest thing that they have to a “hit” record, a fact that is all the more remarkable given that this whole scenario unfolded prior to the ubiquity of the internet. It is impossible to say how it would have unfolded today, but it would certainly have been very, very different. For a comparison, just take a look at Danger Mouse’s Grey Album mix of Jay-Z’s Black Album and the Beatles’ White Album on YouTube. Once the genie was out of the bottle, it was impossible to put back in.

Perfect Timing

Just to give you something to look forward to when you’ve finished your exams and papers, the library will have four especially interesting-sounding books available for your reading enjoyment by April 30.

First on the list is The Emergency Sasquatch Ordinance and other real laws that human beings have actually dreamed up, enacted, and sometimes even enforced, which is a collection of over 200 real but “wacky” laws, complete with citations.  This book is Osgoode’s first book with sasquatch content, but fear not, other libraries in the York University Library system will be able to meet your sasquatch research needs, with nearly twenty titles from which to choose.

The next book is again a first at Osgoode: The Little Book of Elvis Law.  The book talks of the license agreements respecting the use of his name and likeness in connection with the marketing and sale of consumer goods, the many paternity suits and recording contracts, cases involving Priscilla Presley, a bar called The Velvet Elvis, a death certificate investigation, a 16-hour-long documentary, a magazine photo spread, and an agreement with television host Geraldo Rivera.  If that does not sate your curiosity, again YUL will come to your rescue with another 50 titles on The King, including (electronic) FBI records!

Thirdly, for the sports-minded, we are getting Adventure and the Law, about the law relating to extreme sports.  We already do have a handful of books in the library’s sports law collection, but Scott and Steacie win in the extreme sports division.

The last book is already in the stacks: Canada the Good : A Short History of Vice Since 1500.  If this piques your interest, Osgoode and the rest of YUL do have several other items on vice control in Canada.  Here is part of its description:

This historical synthesis demonstrates how moral regulation has changed over time, how it has shaped Canadians’ lives, why some debates have almost disappeared and others persist, and why some individuals and groups have felt empowered to tackle collective social issues. Against the background of the evolution of the state, the enlargement of the body politic, and mounting forays into court activism, the author illustrates the complexity over time of various forms of social regulation and the control of vice.

Enjoy!

 

 

Komagata Maru Exhibit in the Osgoode Library


This year marks the 100th anniversary of the Komagata Maru episode, when Canadian authorities turned away 376 migrants of South Asian origin aboard a Japanese steamship in Vancouver harbour. The South Asian Law Students’ Association (SALSA) at Osgoode Hall Law School will have launched Komagata Maru Week (March 10-15, 2013) and the Komagata Maru Reflections Project.

On May 23, 1914, the Komagata Maru sailed into Vancouver’s Burrard Inlet, carrying 376 passengers of Indian origin. However, the passengers on board the Japanese steamer were denied permission to enter Canada. Fears over Asian immigration at the time led the Canadian government to adopt a series of racist exclusionary policies against Chinese, Japanese and Indian migrants.

In the case of Indian migrants, Canada enacted the Continuous Journey RegulationThe Continuous Journey Regulation was an order-in-council that permitted entry to Canada only to migrants arriving in Canada by boat directly from their country of origin through a continuous journey and in possession of $200. Migrants who arrived on a boat that stopped anywhere between Canada and their country of origin or were in possession of less than $200 were denied entry. At the time, it was highly unlikely that migrants could make the journey from India to Canada without stopping en route. Moreover, the $200 fee was a considerable sum at the time, especially for Asian migrants. This regulation was designed to prevent Indian migration to Canada without being explicit in its intent.

For two months, passengers of the Komagata Maru sought to defy the Continuous Journey Regulation. While the passengers were not allowed to disembark the ship, supporters in Vancouver challenged the regulation on their behalf in court, ultimately unsuccessfully. The Komagata Maru sailed out of the Burrard Inlet on July 23, 1914 to the uncertain fates that awaited the ship’s passengers in Asia.

As part of the anniversary events, the Osgoode South Asian Law Students Association (SALSA) have set up in the Osgoode Library an exhibition of photos and images documenting the Komagata Maru incident. The photos are from the Komagata Maru Collection of the Sikh Heritage Museum of Canada. The exhibit will run throughout the week during regular library hours. The exhibit is free.

Scottish Law – More different than you might think!

Having just returned from Scotland this past week, I feel compelled to write about Scots law which, though it is part of the UK (for now), is markedly different from English law.

With the referendum on Scottish independence set for September 18 of this year, there has been a tremendous amount of discussion into the parallels between the Scottish and Québécois experiences in their quest for independence. The parallels are numerous (as are the differences, for that matter), but a key similarity that leaps out is the fact that they have very different – and yet strongly intertwined – legal systems. While they are both heavily indebted to the common and civil traditions, Scots law has arguably maintained an even stronger native character than the Québécois system. In an echo of Canadian and American divisions between the Federal government and states and provinces, the Scottish Parliament, first elected in 1999, exercises jurisdiction over all matters that are not specifically reserved to the UK parliament.

One of the most significant (and enduring) peculiarities is the “third option” in Scottish criminal law. While most people are familiar with the enduring, Manichean “guilty” vs. “not guilty” divide in most justice systems, the Scots have opted for and persisted with a third verdict – “not proven”. Otherwise known as the “bastard verdict”, it has been said that it is the equivalent of “we’ll no’ say ye did it, but then we’ll no’ affirm ye didna either.” It is certainly a curious idea – considered to be an acquittal, it still doesn’t conclusively dispel the notion of guilt either.

A further muddying of the waters with regard to guilt, innocence, and the apparent Scottish penchant for ambiguity in these matters hinges on jury trials. Unlike most jurisdictions that call for unanimous verdicts (an eternal source of drama such as with the classic 12 Angry Men), a simple majority of eight will suffice in Scotland (their criminal trial juries consist of 15 individuals) – even in cases that involved capital punishment. The somewhat tongue-in-cheek “Anomalies of Scots Law” from a 1919 Juridical Review notes that “we hope that these criticisms do not amount to high treason. The penalty for that crime is the drawing of the traitor to the scaffold on a hurdle, followed by execution or hanging, drawing, and quartering… why England only was favoured by the repeal of that penalty in 1870 seems itself an anomaly. It behoves one, however, to walk warily when it is borne in mind that in Scotland a jury, while it must remain closeted for three hours before returning a verdict by majority in a civil case […] yet in a criminal trial may, by eight votes to seven, and after five minutes’ consideration or none at all, bring about the death of a fellow-subject.”

These are just a couple of (admittedly pretty significant) differences, with a whole host of others – large and small – that have allowed for the development of a body of laws and legal traditions that exist very much parallel but distinct from much of the rest of the Anglo-American legal tradition.

Given Canada’s strong Scottish heritage, it should be no surprise that the Osgoode library has a significant collection of material dedicated to Scots law, with the oldest being the succinctly and decidedly old-timey titled De verborum significatione : the exposition of the termes and difficill wordes, conteined in the four buikes of Regiam majestatem and uthers in the actes of Parliament, infeftments and used in practicque of this realme, with diuerse rules and commoun places of principalles of the lawes from 1597. This is simply one book from the 836 on Scots law in the Osgoode library alone, with a wide array of material available through databases, including the massive, impressive, and often fascinating Scottish Legal History collection on HeinOnline.

Finally, there is an up-to-the-minute research guide published in February 2014 specifically on Scottish Legal History on GlobalLex for those who may wish to delve deeper.