An Important Association Copy: George-Étienne Cartier and Louis-Hippolyte La Fontaine

The Osgoode Library’s Canada Law Book Rare Book Room contains many treasures illustrative of Canadian law and history. One of my favourites is a small book, not of great value in its own right, but valuable both because of its association with two great of Canadians and because of the insight it gives us into their politics.

The book is:

Lucas, Charles. Recueil des débats des assemblées législatives de la France sur la question de la peine de mort : avec une introduction et des annotations. Paris: M Ve Charles-Béchet, 1831.

The book itself (digital text available on the Internet Archive here) is not especially rare or valuable. Its value to us lies in a short inscription, in pencil, on the top right corner of the title page:

“À G.[eorge] É.[tienne] Cartier , esq M.P.P. de la part du Juge en chef [Louis Hippolyte] LaFontaine” (Translation: To G[eorges] É[tienne] Cartier, esq M.P.P. from Chief Justice [Louis Hippolyte] La Fontaine)

La Fontaine-Cartier Insscription

George-Étienne Cartier (1814-1873) (he was named after the English king and spelled his first name à l’anglaise) and Louis-Hippolyte La Fontaine (1807-1864) were not only friends but also partners in both the practice of law and as liberal-reformist politicians. When Cartier was called to the bar of Lower Canada in 1835, he joined La Fontaine’s law practice in Montreal. They were both also Patriotes and fervent supporters of Louis-Joseph Papineau in his rebellions against the “Chateau Clique” for responsible government and equal rights for French Canadians. (Cartier was exiled for a year after the first rebellion failed in 1837.) When LaFontaine was appointed first Canadian-born Prime Minister of the United Province of Canada (and first head of an elected, responsible government in Canada) in 1841, Cartier joined him as an elected member of the parliament. The two men worked together to abolish the system of seigneurial land tenure in Quebec and both also pushed for the adoption of a new Civil Code to replace the Coutume de Paris as the basis of private law in Quebec.

George-Étienne Cartier

Louis-Hippolyte La Fontaine

 

 

 

 

 

 

 

 

La Fontaine was appointed Chief Justice of the Court of Queen’s Bench  in Canada East (formerly Lower Canada, now Quebec) in 1853. He did not live to see the Confederation of the British colonies as the independent Dominion of Canada in 1867. Cartier, however, became the leader of pro-confederation forces in Quebec and is, in my opinion, the greatest of the “Fathers of Canadian Confederation” and its kingpin, as he was responsible for bringing not only French Canada, and was instrumental subsequently in also bringing British Columbia and Manitoba into Confederation.

Why do I find this document so interesting? I like to think that Canada has a long liberal tradition and find it interesting to imagine that one reformer, La Fontaine, gave and recommended this book, discussing the abolition of the death penalty, to his friend Cartier in the decade preceding the founding of this great country. It would be a hundred years before the goal of abolishing the death penalty would be realized in Canada, but I like to think that this book is one of the first incentives to the realization of that goal.

Gentoo Laws (1776) and the Imperial Project

“Honourable Sirs,

I have now the Satisfaction to transmit to you a complete and corrected Copy of a Translation of the Gentoo Code, executed with great Ability, Diligence, and Fidelity, by Mr. Halhed, from a Persian Version of the original Shanscrit, which was undertaken under the immediate Inspection of the Pundits or Compilers of this Work.”

I’ve had another chance encounter with a pair of very curious books, an encounter that served as a reminder that a book is not simply paper, ink and boards, but a collection of ideas and words, beliefs and feelings, all products of the individuals who created them and the age in which they were created.

As I was clearing through a backlog of arcane titles for our special collections, I came upon two books that had earlier caught my eye with their peculiar titles Gentoo Laws. Gentoo? I am no linguist, but this word seemed out of place in our largely Anglo-French collections, almost as if it dropped into our library from some Narnian fantasy land.

Since I am a curious man, I’m not one to allow such an unfamiliar word pass me by unchallenged and unexamined. I quickly finished the task at hand, pulled the books off the shelf and brought them back to my desk for examination. While “Gentoo” (sadly) was not a Narnian term, it was indeed a word with origins remote in both time and place. If I may permit myself to extend the analogy, the word “Gentoo” comes from a land that is to England as Calormen is to Narnia: a far off place where, to use the language of postcolonial discourse, the exotic “other” lived. Pronounced with a soft g, like gentleman, “Gentoo” is an archaic term once employed by Europeans to refer to the native inhabitants of India. Fully titled A Code of Gentoo Laws, or, Ordinations of the Pundits, this book, by the English orientalist and philologist Nathaniel Brassey Halhed, was first printed in London in 1776, when use of the term was evidently common and acceptable in British parlance. The Code of Gentoo Laws is a translation into English from the original Sanskrit by way of Persian – in effect, a translation of a translation. Working under the patronage of the famed Warren Hastings, the first British Governor-General of Bengal, Halhed produced this treatise to illumine to the British the obscure workings of Indian law.

As a translation of a translation, Halhed’s work was deemed a work of poor quality by John Dawson Mayne in his Treatise on Hindu Law and Usage (1st edition, London, 1878), who quotes another authority describing Halhed’s work as “a loose, injudicious, epitome of the original Sanskrit, in which abstract many essential passages are omitted, though several notes of little consequence are interpolated, from a vain idea of elucidating, or improving, the text”. Ouch. Especially in comparison to Mayne’s preferred source, the slightly later and considerably more learned Digest of Hundu Law (Calcutta, 1797), Henry Thomas Colebrooke’s considerably more learned translation of the Vivada Bhangarnava, Halhed’s work had little impact. Nevertheless, in 1776, it was important as the first such attempt to codify Hindu law in English, and was followed five years later by a second edition (London, 1781), which Osgoode also holds.

Although The Code of Gentoo Laws undoubtedly broke new ground, the motivations driving its production can be, from our historical perspective, troubling. Halhed’s “Translator’s Preface” says all we need to know:

“The Importance of the Commerce of India, and the Advantages of a Territorial Establishment in Bengal, have at length awakened the Attention of the British Legislature to every Circumstance that may conciliate the Affections of the Natives, or ensure Stability to the Acquisition. Nothing can so favourably conduce to these two Points as a well-timed Toleration in Matters of Religion, and an Adoption of such original Institutes of the Country, as do not immediately clash with the Laws or Interests of the Conquerors.

To a steady Pursuance of this great Maxim, much of the Success of the Romans may be attributed, who not only allowed to their foreign Subjects the free Exercise of their own Religion, and the Administration of their own civil Jurisdiction, but sometimes by a Policy still more flattering, even naturalized such Parts of the Mythology of the conquered, as were in any respect compatible with their own System.

With a View to the same political Advantages, and in Observance of so striking an Example, the following Compilation was set on foot; which must be considered as the only Work of the Kind, wherein the genuine Principles of the Gentoo Jurisprudence are made public, with the Sanction of their most respectable Pundits (or Lawyers) and which offers and complete Confutation of the Belief too common in Europe, that the Hindoos have no written laws whatever, but such as relate to the ceremonious Peculiarities of their Superstition.”

Halhed’s petitions for religious tolerance and the use of the native legal system are admirable; less so are the presentation of his ideas and the motivations behind them. Halhed advises the British to emulate their imperial heroes, the Romans, by employing tactics of self-interested soft power (in this case the allowance of certain freedoms) – but only insofar as they are beneficial and not contrary to the colonial project of the East India Company and Britain. Halhed isn’t merely a theorist; he admits he undertook this work with the aim of actively supporting the amiable conquest he proposes. CUNY professor Siraj Ahmed addresses the issue in his article “Notes from Babel: Toward a Colonial History of Comparative Literature” (Critical Inquiry 39 (2): 296-326, (Winter 2013)), where he states that works such as Halhed’s Code “enabled the colonial state to claim knowledge about Indian history and present itself as an extension of native sovereignty,” and therefore “philology had been apprenticed to colonial rule.”

For his part, it must be said that Halhed did have an avowed personal philological interest in his project, as he spends a considerable amount of the text discussing linguistic challenges and other pertinent topics, and includes fascinating plates exemplifying the Sanskrit language in its original script.


In his Code, Halhed includes a bibliography of Indian law books, the “names of the Hindoo months,” and a glossary of “Shascrit [sic], Persian, and Bengal words”. And Halhed did work with “Bramins” expert in their native law – all of whom are named – to render into Persian the Sanskrit originals they produced. Halhed is generous to state that these Bramins were indeed the labourers who compiled and created the intellectual content of the work in hand, while he was merely the translator. Though the claim is generous, experts see it as factually implausible. Encouraged by this project, Halhed went on to publish A Grammar of the Bengal Language.

I attempt neither to condemn nor condone Mr Halhed and his work; nor do I wish to misrepresent anything in which I am not expert. I have had but a short time to investigate this text and don’t pretend to criticize the enterprise from a moral high-ground 200 years after it was written. I say all this only to describe the political and imperial thrust of the text. Without its preface, the book might pass simply as an exercise in translation or a genuine attempt to understand the endemic culture of India, but the context in which it was published negates this possibility. The Code of Gentoo Laws remains an artifact of its era: an almost synecdochic item in that it, as a single object, represents a time, place, worldview, enterprise, condition, and Empire. Though once a process of history, it is now, thankfully, only a piece of it.

New HeinOnline Library: Slavery in America and the World: History, Culture and Law

heinonline_logoWe are pleased to announce that we now have access to this new library on HeinOnline.  Slavery in America and the World: History, Culture & Law, edited by Paul Finkelman with the assistance of Hein’s editorial staff, brings together for the first time all known legal materials on slavery in the United States and the English-speaking world. This includes every statute passed by every colony and state on slavery, every federal statute dealing with slavery, and all reported state and federal cases on slavery. An introduction to the collection by the editor is available here.

The collection also includes more than 1,000 books and pamphlets about slavery – defending it, attacking it or simply analyzing it, including an expansive slavery collection of mostly pre-Civil War 0materials from the Buffalo & Erie County Public Library. The editors have also gathered every English-language legal commentary on slavery published before 1920, including many essays and articles in obscure, hard-to-find journals in the United States and elsewhere. The collection will continue to grow, not only from new scholarship but also from historical material that is added as it is located.

A note about Hein and their commendable model of access:

HeinOnline is to be commended on the model of access they have developed for this new library. We at Osgoode and York will have access through our subscription to HeinOnline. However, as a sign of their dedication to the dissemination of information and knowledge on this important subject, Hein is making this database available to anyone in the world who would like access, at no cost! While there is no charge for access to Slavery in America and the World: History, Culture & Law, Hein encourages everyone who registers for access to the valuable material in this database to make a donation, if they are able, to the NAACP, the United Negro College Fund, or another charity of the user’s choice which supports civil rights, equality, or the advancement of people of color. Making a donation is voluntary, and is not required to access the database.

For information on using and searching Slavery in America library, click here.

Historical NS Hansards Now Online

Nova-ScotiaAll of the available early debates and proceedings (Hansard) of the of the Nova Scotia House of Assembly for the period 1868-1993 are now online on the Legislature’s website. The production and posting of these materials was a project of the NS Legislative Library.

This gives Nova Scotians and everyone access to the historical debates of the House, such as the 1907 debate on Prohibition in Nova Scotia and the debates leading up to the opening of the Angus L Macdonald Bridge in Halifax.

Hansard did not transcribe debates from 1917-1919, and 1921-1950, so debates during those dates are not available.

The collection also includes all of the available Legislative Council debates, from 1858-1861 and 1875-1922. Historically (pre-Confederation), the Legislative Council acted as the Governor’s cabinet, with a combination of executive, legislative and judicial powers, and subsequently as the Upper House of the legislature. The Council was finally abolished in 1928.

These Hansards join a growing online collection of legislative materials for Nova Scotia, including:

The Legislative Library is now in the process of making the Journals of the House of Assembly from 1867-1900 available online.

New Legal History Journal Subscription

Jus Gentium Front CoverThe Osgoode Library now subscribes to JUS GENTIUM: Journal of International Legal History, the first issue of which has just recently been published. Jus Gentium is the first American journal dedicated to addressing the history of international law. Much of modern scholarship on the history of international law is preoccupied not with international law, but with international legal doctrine; the doctrinal writings of remarkably few individuals dominate the discourse while the rest remain unseen or overlooked. This journal will encourage further exploration in the archives, for new materials and confirmation of the accuracy of past uses, but welcoming the continued reassessment of international legal history in all of its dimensions.

Our subscription is online only and is available on the HeinOnline Law Journals Library.

A Brush with History: Where were you when Louis Riel was tried?

Deeds are not accomplished in a few days, or in a few hours. A century is only a spoke in the wheel of everlasting time – Louis Riel

Two years ago, on the 50th anniversary of the assassination of John F. Kennedy, news agencies across the continent were in a flurry publishing memorial articles entitled, “Where were you when JFK was shot?” The phrase has become a commonplace that speaks to the individual experience of a shared national event. On the fateful day when the presidential motorcade passed through Dallas, only a small handful were actually where JFK was, as compared to the millions who learned of the event via radio or television. But no matter how far removed from the situation, each and every contemporary has their own story that places the unforgettable event in the context of their own lives. I was not alive for Kennedy’s term as President, but I can answer different “Where were you when…?” questions in my own way.

I remember returning from recess on the second day of Grade 6 to have my teacher address my class: two planes had just crashed into the World Trade Center in New York, a suspected terrorist attack. I was eleven years old and entirely failed to grasp the significance of the situation, but I could tell from the comportment of the adults around me that something big had happened. After school, I turned on the news for the first time in my life. Ten years later, late on May 2, 2011, I remember sitting in a quiet bar with my friends from university. We had just finished the final exams of our final year, and we’d all be splitting up the very next day to head for home. As we chatted and casually watched sports highlights, one of my friends received a text and asked the bartender to change the channel. President Obama was addressing his nation to let them know that Osama bin Laden was dead. I had an eerie sense of my personal life aligning with the “everlasting wheel of time” to simultaneously mark the end of two eras, one personal, the other global. My presence in that bar with my friends in front of the television is of no relevance to posterity, but I will never forget what I witnessed and what I learned there. Individual experience is important only individually.

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These days, the answer to “Where were you when…?” is usually where your eyes first locked on a screen of a television, computer, or smartphone. Before the invention of these technologies, the answer might be where you first heard it via the radio. Before that? It might very well be where you heard cry of the corner paperboy. A book I chanced upon recently in our Special Collections, A Review of the Authorities as to the Repression of Riot or Rebellion, with Special Reference to Criminal or Civil Liability (London, 1868), demonstrates how one Archdeacon Dixon of Guelph, Ontario, answers in his own way “Where were you when…?” and finds an intersection of his life with the epic of national history.

The Archdeacon’s book bears two inscriptions.

Archdeacon's Inscription

The first reads, “Archdeacon Dixon, Rector of Guelph, May 1884”. The second inscription, in what looks to be the same hand as the first, though with lighter ink and smaller letters, reads “This book was lent by me to Christopher Robinson, my old college friend, to take with him to the trial of Riel, he being crown prosecutor, May 1884. A.D.”

Riel_Louis

Louis Riel (1844-1885)

The Trial of Louis Riel (one hundred thirty years ago to the day as of this writing) was a cause célèbre in the young Dominion of Canada, and to see why the Archdeacon Dixon would want to mark his book’s involvement isn’t difficult. After all, Dixon’s dear friend, Christopher Robinson, prosecuted a man who was controversial in his day and who wound up among the most divisive figures in Canadian history. Riel was, depending on who you ask, a folk hero or seditious traitor, and already nationally known for his role in the Red River Rebellion and the killing of Thomas Scott in 1869. He fled to the States, and resurfaced in Canada in 1884 to lead the North-West Rebellion in 1885, for which he was eventually tried and executed later that same year. I imagine that to see a man so prominent in the cultural psyche answer for his deeds years after committing them would resonate for Dixon much in the same way bin Laden’s death resonates for me. As I have my story, the Archdeacon has his, and his book was a part of it; while he left little for later generations to remember him by, he had his brush with history, and that is enough. Can you picture him entertaining guests, taking this book from the shelf and telling his tale? How he might trump up his involvement with the trial so as to seem of greater importance?

Next to an autograph of John A. MacDonald (also accompanied by a note detailing the books historical provenance), this is probably the most fascinating inscription I’ve chanced upon in my short time here at Osgoode, not only for its slight historical connection, but for the Archdeacon’s motivations in writing it. This is what I love about inscriptions, that they are often so personal and intimate, of real importance to the writer but to no one else.

Once I finished musing, I realized something didn’t add up, and that something was the second inscription’s date of May 1884. We can tell, ex post facto, that this date must be an error, since Riel’s trial transpired in July 1885. The Archdeacon could not have written the inscription in 1884 since the information contained within it (i.e. the fact of Riel’s trial; Christopher Robinson’s appointment as crown prosecutor in the case) is contingent upon the events of 1885. By the same logic, since Dixon necessarily wrote the inscription at a point after Riel’s trial in 1885, we must conclude that the date of 1884 was written in error. I think it is likely that the Archdeacon signed only his name in May 1884 as a simple mark of ownership when lending the book to Robinson, and was simply muddled when wrote the later inscription and copied the same date upon the book’s return to him.

Unfortunately, if Robinson employed the book during his preparation for the trial, he did not leave us any markings by which we could trace how he used it. I’d like to add, however, that though he deprived later generations of what would be a remarkable (if minute) insight to the case, Robinson earns top marks for observing proper book-borrower’s protocol, returning the pristine volume to Archdeacon Dixon in the same condition in which it was first lent. Christopher Robinson: a prosecutor and a gentleman. Take note, readers of today — if you find yourself amidst history in-the-making, pull out your pen and mark the occasion, and do so in a book if one is handy.

 

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.