Well my day just became much more interesting…

Which is not to say I do not normally enjoy my job, because I do. I consider myself a bookish fellow, so to come to the library and work all day in a room full of old leather-bound volumes hardly even feels like work at all… okay, it feels a little like work. But as they say, you can’t judge a book by its cover, so I can’t just sit around and admire them sitting on the shelf. Sometimes, I actually have to open them, and on occasion I find something more than just the printed text.

We’re currently in the process of reorganizing the Osgoode rare book collections by size – a project which will shortly be the subject of another post. As part of the project, I’m reviewing each volume before assigning the new shelf number, updating and upgrading the cataloguing as necessary. Today I came across two rather plain volumes, though nicely rebound in brown quarter-leather with canvas boards, and their spines decorated with gilt rules and red labels bearing the succinct title Precedents / Chitty. Nevertheless, though I think I’d normally leave something like this on the shelf, I was obligated to part the covers and take a look inside.

The front pastedown endpaper proudly bore its York Law Library bookplate, but again that was nothing remarkable, as most of these books do. As I turned the page, however, something caught my eye. On the verso of the front free endpaper was a short inscription. I love finding these notes in books because they are sometimes as entertaining as they are informational. Much of the time inscriptions simply record details such as the name of the book’s owner, the price they paid for it, and when they made the purchase. Today’s inscription looked fairly typical. It was signed “W. David McPherson”, and a quick search revealed him to have been a Member of Provincial Parliament in the Legislative Assembly of Ontario, representing Toronto West from 1908 to 1919, and a lawyer in Toronto before that. It’s always gratifying to pin a book’s provenance to a known historical figure; but McPherson’s status as pre-eminent former owner was short-lived, for his inscription read:

“Purchased this 9th day of December 1891 from Oliver, Coate & Co. on Sale of Law Library of the Right Honorable…”

…and this is when my day got much more interesting…

“…Sir John A. MacDonald G.C.B.”

And not only that, but as my eyes scanned across to the facing title-page, I saw a neat little scribble. Though I might have expected that the Prime Minister’s well-publicized tippling would have produced an unsteady hand, I could clearly read the signature “John A. MacDonald”.

I quickly turned to the second volume which, as I expected, bore the exact same inscription and the exact same autograph. Here I had in my hands two books documented to have been in our first prime minister’s personal library. Not only that, I had his autograph – twice! MacDonald was called to the Bar in 1836, and these volumes were published in 1839, so he may have bought them new; his signature is evidence that they were in his personal possession, evidence supported by the inscription by the subsequent purchaser. The books provide evidence of another characteristic of the early law book trade in Canada: Though Canada was still a British colony at the time, these books were published in Springfield, Massachusetts. It was common practice to import American editions of British legal classics, simply because they were so much more affordable than books imported from the Old World.

This lucky encounter reminded me of a phrase, “discovered in storage”, which you sometimes hear in conversation about museums and libraries. This phrase would apply to an artifact or item that the institution didn’t even know it owned until it was, by stroke of fortune, recovered from obscurity. Such stories are actually quite common.  For museums and rare book libraries, the reason we collect books or artifacts and catalogue them is to protect and preserve them from damage, but also from loss. Still, sometimes it just happens that items of note are lost or forgotten over time simply due to the sheer volume of materials that surround it. In this case, the original cataloguer simply missed the importance of the signature and inscription, presuming they were even noticed. The concept of finding new items in an established collection highlights some of the inherent difficulties – and pleasures! – of librarianship. Effectively, if an item isn’t catalogued, it doesn’t exist; and even if it is catalogued, if no one knows to look for it, isn’t it as good as nonexistent? And then the questions become existential: Why are we even doing this in the first place?! Such are the Borgesian nightmares of librarians. Sadly, this is what keeps me up at night.

The Law It Self: Sir Edward Coke and his Lasting Authority

Bacon and Shakespeare: what they were to philosophy and literature, Coke was to the common law. – J.H. Baker

Sir Edward Coke, 1552-1634. The First part of the Institutes of the Laws of England; or, A Commentary upon Littleton, Not the Name of the Author Only, but of the Law it Self.  12th ed. London: 1738.

The Osgoode Library has recently been the recipient of an important donation from Fraser Laschinger, Osgoode ’73: a copy of the 12th edition of Sir Edward Coke’s famous commentary on Sir Thomas Littleton’s Institutes of the Laws of England, printed in London in 1739. Coke on Littleton is one of the great authorities of the English common law.

This particular copy is especially valuable for its remarkable provenance, reflective of Canadian legal history. As evidenced by an armorial bookplate on the inside front cover, the text came to Canada sometime in the late 18th Century with Sir James Monk (1745-1826), who was appointed Solicitor General of Nova Scotia in 1772 and acting Attorney General in 1775. He served as Attorney General of Lower Canada 1776-1789 and again 1782-1794, when he was appointed Chief Justice of Lower Canada. Monk built the mansion Monklands in Montreal, the oldest remaining Palladian-style villa in Canada, which was the residence of Canadian Governors General from 1844 to 1849. Lord Elgin lived in the house, where his son, Victor Bruce, the future Viceroy of India was born. The house was acquired in 1854 by the Congrégation de Notre Dame to serve as a girls’ boarding school, Villa Maria, which still operates today in the same building.

Initials inscribed in the text may also refer to a further possible association of this copy with Edward Goff Penny, the Montreal journalist and conservative politician, called the Bar in 1850. Mr Laschinger’s father acquired the book upon purchase of the Montreal home of Mme Jeanne Vanier (née Tétrault, widow of Antoine Vanier) in 1950. This book complements copies of other editions of Coke on Littleton already in the Library’s Canada Law Book Rare Book Room, the earliest being the 2nd edition, 1628. We thank Mr. Laschinger for his generosity.

Sir Edward Coke (that’s pronounced Cook, as I found out the hard way) was a prominent English jurist and politician whose Institutes of the Laws of England have had an enormous impact on the development of English law, and by extension, common law in general.

Coke was born in Norfolk in 1552. He entered the Inner Temple in 1572 and was called to the bar six years later. He ably proved his worth as a jurist and rose through a number of positions in the public service, eventually beating out rival and renaissance man Sir Francis Bacon for the post of Attorney General in 1594. Besting Bacon seems to have been among Coke’s many talents: four years after his appointment, Coke again found himself at odds with Bacon as they competed for the hand of Lady Elizabeth Hatton, which Coke won.

As Attorney General, Coke was involved with a number of high profile cases; Coke prosecuted both Sir Walter Raleigh and the conspirators of the Gunpowder Plot. Until his retirement in 1628, Coke spent the rest of his career in politics, though at times, like many of today’s statesmen, he found himself on both sides of scandal.

Today, Coke may be best remembered for his defense of the supremacy of the common law against Stuart claims of royal prerogative, and for his four-part series of treatises, The Institutes of the Laws of England. Coke’s Institutes were not only influential in their day, but continue to be of great importance to the common law tradition in their collective role as “books of authority”.

What are books of authority? The International Encyclopedia of Comparative Law offers a clear description of their use in law:

The function of academic works [in law] may differ. A judge may be required, if in difficulties, to follow the opinion of one or more particularly expert jurisconsults. Or [academic works] may be of persuasive authority only.

The former system was used at the time of the Roman Empire, where the famous Law of Citations promulgated by Emperor Valentinian III in 426 required the opinions of certain jurisconsults (Gaius, Papinius, Paul, Modestinus, and Ulpian) to be followed. This Law also determined which authority was to be followed if they disagreed on a point requiring resolution.

The principle of the Law of Citations has frequently been accepted: in societies where written matter was rare there was a great temptation to recognize that the writings of certain eminent personages constituted a definitive statement of the law.

Thus it was accepted in England that certain works had authority, and that their authors must be considered as having stated correctly what was known, in Coke’s phrase, as the general immemorial custom of the realm. These “books of authority” are Glanvill and Bracton in the twelfth and thirteenth centuries, Littleton and Coke in the sixteenth and seventeenth, and Blackstone’s Commentaries in the eighteenth century. In our day the proliferation of precedents and their increasing authority, and the frequent intervention of the legislature, have replaced the rules stated in these works by new rules. However, English authors continue to regard them respectfully as books of authority which can be relied on before the courts, if necessary.

The Oxford Dictionary of Law (7th ed, 2006) also discusses “books of authority” in its definition of textbooks:

Textbooks may be cited in court to assist in the interpretation of the law. They have no authority as a source of law but merely provide an expert opinion as to the current state of the law. There was formerly a convention that only the works of dead authors could be cited, but modern practice also allows citation of living authors. The Books of Authority, i.e. the works of Glanvil, Bracton, Littleton, Coke, and Blackstone, are treated as having the same authority as cases of the same period.

A quick search on CanLII for Edward Coke in Canadian Supreme Court documents returns over fifty cases citing Coke as an authority; a similar search in US Supreme Court cases returns over one hundred. Clearly, Coke is one for the ages. Though he displays admirable modesty in the subtitle of his First Institute by referring to his precursor Littleton as “the LAW it self,” it is Coke who is consistently referred to as the authority, not Littleton, and the title may as well be attributed to him.

Library of Parliament/Bibliothèque du Parliament Special Collection at Osgoode

Today’s post highlights a special collection within our Special Collections, a sub-special collection if you will.

Can you guess why all of these books, sitting pretty in the Canada Law Book Rare Book Room (and not including those under that forbidding red squiggle), are related to each other and/or why they’re noteworthy? If you can’t guess, take a closer look and let the books speak for themselves; the answer is literally stamped on the tail  -  that’s the bottom  -  of the spine on every single one of them.

All these books once belonged to the Canadian Library of Parliament/Bibliothèque du Parlement. Specifically, this is the collection of early civil law texts in French, published in France and Belgium, withdrawn from the Library of Parliament’s collection and acquired by Osgoode in the 1990s. The cataloguing of this collection has only recently been completed by us. The books are mostly 19th-century, the earliest being 1777 and the latest 1936.

And why is this collection significant? These books were used by Canadian legislators and their staff through almost two centuries to develop and draft civil law legislation for Canada’s bi-juridical legal system. They constitute not only a significant historical collection of French civil law jurisprudence but also served as sources for the development of Canada’s civil law tradition. And at the same time, they illustrate a fascinating aspect of Library of Parliament’s physical collection.

Canada’s Library of Parliament began as two separate legislative libraries in Upper and Lower Canada in the 1790’s. The two Canadas united in 1841, and their libraries followed suit. Today, the Library of Parliament/Bibiothèque du Parlement takes it stately place at the rear of the Centre Block on Parliament Hill on the southern banks of the beautiful Ottawa river, but this was not always so. For a while after the union of the Canadas, the library lived a fairly nomadic life and travelled among Montreal, Quebec City, Kingston, and Toronto, before finally settling down in Ottawa (and on our ten-dollar bill).

The “Bibliothèque du Parlement” stamp (“Library of Parliament” on English-language texts) isn’t the only symbol denoting the books’ provenance. You can also tell by the little critter stamped to the head  – that’s the top  -  of the spine:

What else to denote the collection’s national heritage but the friendly Canadian beaver? (Beavers of other nationalities are, apparently, not so nice.) The beaver was only officially incorporated as a symbol of our nation in 1975, but has been used in an unofficial capacity for centuries. The Library of Parliament doesn’t know exactly when the beaver started appearing on its books, but guesses that the tool used to stamp the beaver was made and purchased in the 1920’s. I contacted the Library of Parliament and was pleased to learn that stamping their books with the beaver is a practice they still uphold today. All reference books and all books in leather receive this golden treatment for the purposes of uniformity and aesthetics. When a book has fallen on hard times and needs to be rebound, it will also receive this treatment.

The beaver also seems to have been a bit of a shape-shifter. The Library of Parliament counts at least four different tools used to impress the industrious beavers on its books: one looking left, one with flowers in its mouth, one with a maple leaf in its mouth, and one that looks rather more like a rat than a beaver (which I’m sure they quickly disposed of).

Mme Jeanne Beaudry Tardif, the chief conservator at the Library of Parliament, was kind enough to answer my questions and send me a photo of the tools used to achieve this effect. The beaver die in the photo is the one currently in use up in Ottawa. A huge thank-you to Jeanne for the picture!

If you want to see how these tools were used, check out this video.

Final question: If these books are stamped with the property marks of the Library of Parliament, what are they doing here at Osgoode? Every library needs periodically to “weed” its collection of materials that aren’t being used any more. While the Library of Parliament certainly does its fair share of work in preserving  Canada’s Parliamentary documentary heritage, its primary mandate is to serve current Parliamentarians. Much of the work that the Library undertakes to serve our government is freely available to us. Among these excellent resources are the Background Papers, In Briefs, and Legislative Summaries prepared by the Library, all of which offer summaries and analyses of current policy issues and legislation, along with any other information that’s pertinent. Another great Library of Parliament resource is LEGISinfo, a research tool for finding information on legislation before Parliament. LEGISinfo tells us exactly what bills are currently before Parliament, how near or far each bill is to passing, whether they’ve been reviewed by sub-committees, etc. Don’t waste your time with Google – go straight to the source for the best, most current information.

Anyway, since most legislators have probably long since grown accustomed to using these digital resources, they weren’t clamouring for the beaver-bedecked texts currently sitting in our Canada Law Book Rare Book Room. The Library of Parliament generously offered these books to us in the late 1980s, and we purchased them with the assistance of the Law Foundation of Ontario. Today, we’re pleased to have these historic volumes sitting on our shelves.



A Gift from Senator Adam Hope to Aemilius Irving

The library has recently acquired an excellent copy of the 1881 issue of the Canadian Parliamentary Companion and Annual Registry. This particular copy was originally given as a gift from Senator Adam Hope to Aemilius Irving on April 29th, 1882.

The inscription from Senator Hope is located on the front endpaper and is reproduced below:

Inscription inscription from Senator Hope is located on the front endpaper

Adam Hope was born January 8th, 1813, in Scotland and journeyed to Upper Canada in 1834 where he became “an important figure in the business communities of London and Hamilton.” [1]. Largely in recognition of his active commitment to the Liberal party Hope was appointed to the Senate on the advice of Prime Minister Alexander Mackenzie on January 3rd, 1877 where he served until his death on August 7th, 1882 at the age of 69.

Aemilius Irving was ten years younger than Hope and also arrived in Canada in 1834 emigrating with his family from England. As a law student in his early twenties Irving began working in the Toronto law office of Joseph Clarke Gamble and was called to the bar in 1849. He moved from Toronto to Galt in 1851 to set up his own practice and in 1853 was appointed clerk of the peace for Waterloo County.

In the mid-1850s Irving moved his large family to Hamilton where he acted as legal counsel for the Great Western Railway, a position he held until 1872. This was where he acquired his “unconventional legal experience.” [2] Irving first ran for public office as a Liberal in 1872 but was defeated. He was elected in 1874 and again in a by-election in 1875 where a “New Election Law” was being tested that “secures vote by ballot, and has abolished the property qualification candidates.” [3]

Irving’s most notable intervention as a back-bencher in the government of Alexander Mackenzie was an amendment to the Supreme Court Bill which, as clause 47, made the proposed tribunal the final court of appeal for Canada and ended appeals to the United Kingdom. This clause, however, was rendered inoperative in 1876 by British law officers.” [2]

Irving had been appointed Queen’s Counsel in 1863 and was elected as a bencher of the Law Society of Upper Canada in 1875. He was defeated in both the 1878 and 1882 federal elections and relocated to Toronto where “for almost three more decades, he would devote his considerable energies to public service and to his profession.” [2] During this period, from 1877 until his death in 1892, he also acted as a crown prosecutor.

As Jamie Benidickson notes in his biographical entry on Irving,

“More influential contributions were made by Irving in constitutional litigation and intergovernmental negotiations. Looking back in 1913 on Ontario’s struggle with Ottawa over the structure of the Canadian federation, the Globe described Irving’s role: ‘He was in an important sense a professional partner of Sir Oliver Mowat, who was Attorney-General as well as Premier. For very important cases, where the law of the constitution or the history of easements or franchises was involved, he did much laborious but unostentatious work. Only those on the inside of the Provincial Administration knew how much Ontario owes to him for extensive research that no other available member of the profession had the ability and the lore to carry as he did.’” [2]

Irving came to be one of the longest serving Treasurer’s of the Law Society of Upper Canada a position he held for 20 years from 1893 until his death in 1913 at the age of 90. When he died “his remains lay in state in Osgoode Hall before the funeral procession made its way to St. James’ Cemetery in Toronto. At the time of his death he was the oldest lawyer in Canada.” [4]

[1] McCalla, Douglas. “Adam Hope”, Dictionary of Canadian Biography Online <http://www.biographi.ca/009004-119.01-e.php?&id_nbr=5589>.
[2] Benidickson, Jamie. “Sir Aemilius Irving”, Dictionary of Canadian Biography Online <http://www.biographi.ca/009004-119.01-e.php?&id_nbr=7467>.
[3] Irving, Aemilius. Address to the electors of Hamilton, Canadian Parliamentary Companion for 1876, p. 680 <http://eco.canadiana.ca/view/oocihm.32950/696>.
[4] “The Law Society’s Longest-Serving Treasurer – Sir Æmilius Irving” <http://www.lsuc.on.ca/with.aspx?id=1950> .