Tag Archives: Case law

Legal history at the World LII

Logo WorldLIINearly five years ago I announced here the aim of spanning in my blog centuries, cultures and continents. I quickly discovered some of the implications of this statement. Not only did I take up the challenge of dealing with aspects of legal history in many periods, regions and cultures, but in many posts I have also pointed to projects and initiatives that succeed in fulfilling this aim to considerable extent. In this post I will look at a project that does not only deal with contemporary law on a vast scale, but also with legal history worldwide.

The World Legal Information Institute (World LII) is not a single monolithic organization, but more a consortium of several participating institutions. Some branches of the World LII are relatively well-known, others merit to get more in the spotlights. Here I will look at some examples of resources most valuable for research in the field of legal history. Even if there are clear gaps, lacunae and omissions in the presentation of these resources at the portal site of the WorldLII or at the website of a particular supporting institution, they deserve al least some attention.

Serving lawyers and historians all around the world

With at present some 1250 databases for more than 120 jurisdictions, and fourteen supporting institutions and branches the World LII is a truly multinational organization. The World LII is a member of the Free Access to Law Movement (FALM), as are most of its partner institutions. One of the earliest institutions launching a website with free legal information is the Legal Information Institute at Cornell University, founded in 1992. Initiatives such as the Global Legal Information Network (GLIN), currently in the midst of updating and supported by the Library of Congress, and Globalex (New York University), too, belong to this movement, but they have scarcely created any space for legal history. GLIN does support the World LII.

Generally the guides at GLIN and Globalex succeed certainly in providing adequate basic information about contemporary law. The guide to Scots law and Scottish legal history by Jasmin Morais and the guide to Cambodian history, governance and legal sources by Jennifer Holligan and Tarik Abdulhak at Globalex are notable and fine exceptions. Yemisi Dina’s guide at Globalex for Caribbean law does at least realize the historical background of the region she describes. Hopefully legal historians are also increasingly familiar with research readily accessible at the portal of another member of FALM, the Social Science Research Network / Legal Scholarship Network (SSRN/LSN).

Logo AustLIIThe institutions working together under the aegis of the World LII stand out for their massive presentation of and free access to legal resources, be they constitutions, laws, statutes, case law or law reports. The World LII also provides you with a nice selection of websites of materials pertaining to legal history. This page leads you also to one of the major selections of resources for legal history at the Word LII, that for Australia, which is not completely surprising, because the Australasian Legal Information Institute is at the very heart of the World LII. The University of Technology Sydney (UTS) and the University of New South Wales (UNSW) provide staff and technological support behing the AustLII and World LII. By the way, UTS has an interesting Anti-Slavery portal with an online course about the continuing struggle against slavery, forced labour and trafficking, and a section with contemporary Australian case law.

Connecting contemporary law and legal history

Let’s look a bit deeper into World LII. For this objective I would like to look at the Torres Strait Islands. These islands are situated in the Torres Strait between Australia and Papua New Guinea. if you search for the Torres Straits at World LII you get some 22,000 results. When you look at the databases providing materials for these results you will immediately notice that you cannot confine yourself to resources about Australia, from the Commonwealth or even from the Australian state of Queensland directly adjacent to the Torres Strait. The example of the Torres Straits can easily be multiplied. The western part of New Guinea was between 1945 and 1962 governed by the Dutch. Before the Second World War this part was at least within the sphere of Dutch influence in the Indonesian archipelago.

Apart from resources from Australia, Asia, the Americas, Africa and Europe the World LII does even include materials concerning the polar regions. You can approach historical resources at World LII by country. At the moment of writing seventeen countries are listed. I would single out the database with colonial cases for China and Japan, a resource developed at the Macquarie Law School, Sydney, even if this is the sole historical resource included at the World LII portal for both countries. The series of cases starts around 1850. Anyway, you can find more links to colonial cases at this webpage of the Macquarie Law School. The set of colonial cases of Constantinople for Turkey at the World LII, too, stems from a project at this law school. These cases from the Supreme Consular Court date between the 1850’s and 1930.

However, the World LII portal brings you more history than included at its history page, although its selection of historical databases for New Zealand is impressive. In particular for historical cases it is possible to find much more, but alas this can be a hit and miss affair. At this point the fourteen branches can be most helpful. Among the fourteen institutions is for instance the LawPhil project for the Philippines. in its section on jurisprudence you can start in the year 1901.

In the vast fields of the common law it is good to know that behind World LII are both the British and Irish LII and the Commonwealth LII. In fact you are bound to use materials at both these portals when dealing with legal history concerning the United Kingdom and countries included within the British Commonwealth. It is again Scotland which provides historical materials, Scottish Court of Session decisions since 1879, and decisions of the High Court of Justiciary since 1914.

The Asian LII leads us for example for Japan to laws since 1896, but the series starts really in 1947. For legal information about the many islands groups of Oceania which have become independent countries, often with the British Commonwealth, the Pacific LII is often the only available starting point, and even the only easily accessible resource center. The often very young legal history of these countries is amply documented by the databases of the Pacific LII. Some islands are severely threatened by rising sea levels, and it is important for them to start working quickly to preserve their legal heritage. In my recent post about the Endangered Archives Projects of the British Library you can read about one of these projects. It is true that it can take some effort to find historical materials, but even so often your efforts will be rewarded as more resources become available.

The pages of the World LII pointing to other legal history resources contained for me at least one pleasant surprises. At the portal of The Napoleon Series you will find not just resources about France and the period around 1800. At a page about government and politics the links range is truly worldwide, featuring both articles and databases from the Balkan to Cambodia. Although you find at that page mostly articles, and even short articles, they certainly help to provoke your own thoughts and questions.

Two directions in legal history

It is easy to moan about or criticize the lack or absence of particular historical materials within the databases of the World LII. Similar initiatives such as GLIN, Globalex, LLRX and Justia, to mention just a few of them, all lack the indispensable databases – or links to them – of the World LII. In fact the organization behind World LII encourages scholars to suggest new resources. Anyway the initiative of the World LII does not completely leave legal history out in the dark. You might even defend the position that it does help creating curiosity about the history of jurisprudence, law and legal institutions by its very scale and offering a number of resources which might be most useful for your research. Its approach definitely starts in the presence. Any research happens in the present, even if scholars devote them solely to history. The World LII helps us not to confine legal historians exclusively to periods already centuries ago. It might be wiser to acknowledge the fact that the present is our starting point, and not to imagine we can look at history from a distant and impartial imaginary point of view, with as its ultimate illusory goal the creation of definitive history.

A second important feature of the World LII and similar institutions is the free online access to materials offered thanks to their efforts. Many online legal materials can only be consulted at subscribing institutions, and they make this possible at sometimes very substantial costs. Historical materials, too, are often only readily available online thanks to commercial initiatives.

Speaking for myself, I would surely enlist the services of the World LII and its partner institutions whenever possible, feasible and wise, because I am convinced one person living in one country, somewhat familiar with the history of one country, region or continent can only see a part of the whole. Nowadays it is a cliché to say that getting to know the unfamiliar is the exclusive way towards truly understanding yourself and your own context, but this comparative starting point does contain more than a bit of truth. Posts at a blog such as this one contain grains of truth, and you are cordially invited to view them as just a stepping stone for more. I hope to return here soon with another post delving deeper into the theme of the scope of historical research for our century.

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Dutch legal history in two stories

The latest online issue of the Rechtshistorische Courant, the fine monthly news bulletin on Belgian and Dutch legal history edited with zest and much esprit at the Department of Legal History of Ghent University, alerted its readers to a new website created by the Westfries Archief and the Westfries Museum in Hoorn about the oldest share of the Dutch East Indian Company. Hat tip to Ghent! Yesterday I presented you a story from the province of South Holland, now it is the turn for North Holland. Looking at the website of the West Frisian Archive I literally bumped into another story touching Dutch legal history worth presenting and retelling here, if only because it forms also part of a new website presenting narrated history from the province of North Holland, Oneindig Noord-Holland [Infinitely North Holland], well worth looking at in some depth.

Logo Oneindig Noord-Holland

The oldest share of the VOC

Calling a website The Oldest Share is a nice start in itself to attract the general public, merchants, business men, lawyers and historians at the same time. The Dutch East Indian Company – abbreviated in Dutch VOC – was founded on March 20, 1602, by the Dutch States General, and endowed with a monopoly on transport to and merchant activities in the Indonesian archipelago. Shares were issued to finance this trade company. In 2010 Ruben Schalk, a history student at Utrecht University, traced the earliest existent share from 1606 at the West Frisian Archive in Hoorn. The share was bought by a Pieter Hermansz. who invested 150 Dutch guilders into the VOC. Hoorn was one of the towns at the former Zuiderzee, now the IJsselmeer lake, which formed a kamer, a chamber with a number of seats in the Heeren Zeventien, the “Lords Seventeen”, the governing body of the VOC. The Chamber of Amsterdam was undoubtedly the most powerful element in the governing body. The VOC was also granted sovereign authority to conclude treaties and to engage in acts of war against countries competing for hegemony on the high seas, including privateering.

The new website for which also an English version has been created tells you the story of the discovery. You can look at the share in depth, both in a viewing mode which enables you to flip through the pages, and in a so-called deciphering mode. By pointing to the lines of the list of notes on the payment of dividend, in this case between 1606 and 1650, a pop-up window opens with a transcription of and information about the notes. One of the more troubling stories about the finding of this oldest VOC share is that a slightly older share – just three weeks! – was apparently until 1980 at the municipal archives in Amsterdam but somehow ended in the hands of German collectors. The early shares bring new light on the financial position of the VOC in its early period. Things were financed less easily than historians had assumed.

Of course one can debate whether the Dutch East Indian Company was really the first modern company to issue shares and to loan money on the financial market, a paramount example of mercantile capitalism in Early Modern Europe. It surely was not the first company with shareholders. Medieval merchants developed a number of ways to spread the risks of their enterprises. Financial cooperation between merchants in Italy and Flanders and their bankers started already in the twelfth century, a story well retold in a chapter of Wim Blockmans’ beautiful book Metropolen aan de Noordzee. De geschiedenis van de Nederlanden, 1100-1560 [Metropoles at the North Sea. A history of the Low Countries, 1100-1560] (Amsterdam 2010).

To my surprise the new narrative website gives only a short illustrated announcement without a link to the special website on the history of the oldest share. Let me conclude the fist part of this post with pointing to a nifty website presenting quick links to information about individual ships of the VOC and a lot of links in English, too, and to the digitized sources for the history of the VOC at the Institute for Dutch History.

The Hoorn Pie Verdict

Both the West Frisian Archive and a new website with stories about North Holland, Oneindig Noordholland, “Neverending North Holland”, present the next subject of my post. This second story is rather different, really a mix of the sweet and bitter. In 1910 a jealous man decided to send a poisoned pie to his enemy. Instead of killing his enemy the enemy’s wife died by poisoning, and a servant became seriously ill. The sender of the deadly present, Johannes Jacobus Beek, and Willem Markus, his intended victim, had been both market masters and city messengers of Hoorn since 1901. Beek had embezzled money he received as a market master from participants of a fair. Markus detected the loss of money and found out what had happened with a sum of 135 Dutch guilders. Before the First World War the Dutch guilder was a very strong currency, and this sum meant a substantial amount of money. Beek was fired from his municipal jobs in 1907.

Only in 1910 Beek saw a chance to revenge himself. His brother in law provided Beek with arsenic pretending he wanted to get rid of rats in his house. He went to a pastry baker in Haarlem, and ordered a large pastry pie with the instruction to leave a hole in it in order to add something to it. On the same day, September 28, 1910, the pie was sent after the fatal preparations from Amsterdam by a courier service to Markus. However, next day when the pie was delivered to Markus on his 84th birthday, Beek’s former colleague refused to eat from it, but his wife Maria Muisman and Grietje Appelman, a maid servant, did eat from the deadly present. The anonymous congratulatory card delivered with the pie, the very box and much more have been preserved in the dossier concerning this case.

On the North Holland story website you get an abbreviated version of this murder story. The story website is integrated with social media and gives you the chance to get the story of a building in front of you on your mobile phone using the fashionable QR code. In cooperation with the Noordhollands Dagblad, the regional newspaper, the West Frisian Archive present a longer, more detailed and illustrated version of this murder story. In fact the story is told in five installments resembling the feuilleton of old newspapers which brought similar stories in a serialised fashion.

The Hoorn Pie trial in Dutch jurisprudence

Beek was soon arrested and confessed he had sent the pie. He told the police that only after sending he had considered the possibility that someone else might eat from the sweet but poisoned present. On trial the attorney pleaded for a conviction for murder of Maria Muisman and attempted murder of Grietje Appelman. However, the arrondisementsrechtbank in Alkmaar, the regional tribunal, condemned Beek on December 13, 1910 to 10 year imprisonment for manslaughter. In appeal this sentence was annulled. The appeal court of justice, the gerechtshof in Amsterdam, judged that Beek had acted with murderous intent because he had immediately realized that his act might possibly kill others as well, and sentenced him on March 9, 1911 to life imprisonment for murder and attempted murder. The defense counsel used the right to appeal in cassatie, in cassation, in order to get the verdict annulled, to the Dutch supreme court. The Hoge Raad, the Dutch supreme court, confirmed the judgment of the Amsterdan court of justice on June 19, 1911. Beek died in the prison at Leeuwarden in 1918 at the age of seventy years.

The sentences of the Dutch supreme court are called arresten, a word clearly stemming from the French word arrêts. In Dutch jurisprudence cases are referred to by a summary indication of the matter of the case and the usual abbreviated reference to the court and the date of the judgment or the date of publication in one of the many Dutch legal journals. Our case is nowadays referred to as the Hoornse taartarrest, “The Hoorn Pie Verdict”, HR (Hoge Raad), 19-06-1911, W (Weekblad van het Recht) 9203. A salient feature of Dutch jurisprudence is the addition met noot, “with a note”, meaning a short commentary of a lawyer, usually a law professor. In the legal reviews the notes were only signed with initials. The quality of their annotations to arresten helped and helps today establishing the reputation of Dutch law professors. Incidentally, in the final sentence and in current publicity about trials only the initials of the accused and other persons involved are shown. After a century the need for discretion is clearly no longer present. From the start the parties involved are not the elements which give a Dutch case its name.

In Dutch jurisprudence this verdict introduced the legitimate use of the concept of “conditional intent” into Dutch legal practice. The Wetboek van Strafrecht, the Dutch criminal law book from 1886 is still in vigor. Obviously some of its effects and implications needed clarification around 1900, and in fact this continues in the present. On purpose I do no try here to give either the correct term in British, Scottish or American criminal law, because they undoubtedly contain neat differences with Dutch criminal law. At least one of the additional terms in Dutch jurisprudence when considering this doctrine is culpoos handelen, “acting culpose” or guilty acting. The Hoorn Pie Verdict is one of the leading cases in Dutch jurisprudence, even if the doctrine on this point has developed, as for instance in the Porsche Verdict (Porsche-arrest, HR 15-10-1996, NJ (Nederlandse Jurisprudentie) 1997, 199) about a case where this doctrine did not apply, and another case about a car driver who deliberatedly hit three bicyclists, also in the province North Holland, the Enkhuizen Manslaughter Verdict (Enkhuizer doodslag, HR 23-01-2001, NJ 2001, 327) where this doctrine was reaffirmed. In these online versions the notes are given without indication of the original author.

The main online source in open access for verdicts of Dutch courts is found at the official portal for the Dutch judiciary, Rechtspraak.nl. It is not so easy to find older verdicts online in open access. I confess to using sometimes articles in the Dutch Wikipedia where presumably law students have treated a generous number of older cases. These articles often point to a special website for arresten. In an earlier post I could point to the website Iure with some cases prior to 2000. At subscribing Dutch law libraries you can search in special databases for jurisprudence. Subscribers to the student law journal Ars Aequi get also access to a very useful database for Dutch case law, if you pardon me using this expression, because Dutch jurisprudence is not exactly to be equalled with Anglo-American case law.

More information about contemporary Dutch law and online access to documents and cases can be found at websites such as Globalex, at the University of Minnesota Law Library, in the summary guide created by the Institute of Advanced Legal Studies, University College, London, or in the research guide of GLIN at the Library of Congress Law Library.

The centennial of the Hoorn Pie case

A century ago the case of the poisoned pie made headlines in the newspapers. In the website of the Dutch Royal Library for digitized Dutch newspapers you will find more than twenty articles from 1910 and 1911 about this case. One can applaud the retelling of this trial at the narrative history site for North Holland, but one has to point out that the juridical side of the matter does not get more attention. It would have been easy to add the text of the verdicts. October 28, 2011 was the day of the commemoration of the centennial at Hoorn with a re-enactment of the story, a guided tour through Hoorn and lectures by contemporary Dutch lawyers. Many spots are still visible, sometimes barely changed since a century. It is well worth leafing the pages of the online presentation at the website of the West Frisian Archive. This constitutes quite some effort in bringing an aspect of legal history, albeit the more appealing side, the perennial fatal attraction of crime and evil, to the attention of the public at large. For educational purposes this constellation of coverage in a newspaper, activities organized by an archive and a museum, and the use of special websites which even connect to social media, is surely worth considering. It is not by chance that both the narrative project and the website on the oldest VOC share have been partially sponsored.

What strikes me in the end when reflecting on the Hoorn Pie verdict is the rapid speed of the Dutch judiciary in the early twentieth century. The pie arrived late in September 1910, the first trial ended on December 13, 1910, the sentence at the appeal court dated from March 9, 1911, and the final verdict by the Hoge Raad was given on June 19, 1911, just nine months after the deadly birthday gift. For historians it might perhaps be the combination of seemingly completed stories with ever new questions and perspectives that give legal histories their plural form and coherence. This ambiguity is not a birth defect of this discipline but its fountain of life.

A postscript on early Dutch stocks

I am happy to add a postscript to this post and to point you to the Ph.D. thesis of Lodewijk Petram, The world’s first stock exchange (Ph.D. thesis, Universiteit van Amsterdam, 2011) which you can download from his website. Petram has written in Dutch a more popular version of his study, De bakermat van de beurs (Amsterdam 2011) on the early trade in shares of the VOC. It was the trade in these shares that contributed much to the early development of the stock trade and the role of Amsterdam in it. It is fascinating to compare the results of this study with the dividend notes on the earliest surviving share kept at Hoorn. You can find some historical documents at Petram website and also at the site of the Dutch Stock Exchange Foundation, which provides you with a history in a nutshell of the Amsterdam Stock Exchange and its forerunners.

Online access to verdicts

Alas the website Arresten appears to defunct. Luckily you can now find the Hoorn Pie Arrest (WR 9203) online in the digital version of the Weekblad van het Regt (1839-1943) (University Maastricht) which provides a search functions for the abbreviated references to the verdicts of the Hoge Raad.

A historical re-enactment with a twist: Bradwell v. Illinois

I do like devoting posts to books and archival records as sources for legal history, and thus it was really by chance that I saw a notice on the website of the Yale Law School about the re-enactment of a historical case from 1873. When reading about the re-enactment and viewing the video recording of it my curiosity grew. One of the headings I used in a post this month was “Less is more?”. After that really long post I have decided to keep this new contribution rather short.

At the 2011 Judicial Conference of the Ninth Circuit, held from August 15 to 18, 2011, a number of lawyers re-enacted the case of Myra Bradwell versus the State of Illinois before the United States Supreme Court (83 U.S. 130 (1872). Among the performers was Yale law professor Judith Resnik who pleaded the case of Myra Bradwell (1831-1894), a married lawyer who wanted in 1869 to be admitted to the bar in Illinois, but her request was denied. It took some time before her case was finally heard by the Supreme Court. The re-enactment was presided by Supreme Court Justice Ruth Bader Ginzburg. In 1873 Bradwell lost her case, but last month Judith Resnik pleading for Myra Bradwell convinced Justice Ginzburg and won her admission to the Illinois bar.

Women’s legal history in the United States

Until now I have only mentioned women’s legal history very briefly, but the few things noted in that earlier post helped me to get quickly more information about Myra Bradwell. The Women’s Legal History (WLH) project at Stanford Law School has a page with lots of online references about materials on Bradwell and literature about her. Thus I could link here to an online version of the case. The page on Bradwell at Stanford University brings a lot more than the brief notice in the online exhibit of the Columbia Law School library, The Rise of Women in the Legal Profession. In fact the WLH project is a model of its kind, but not a model you can easily follow. The combination of biographical matters, be it in an admittedly very concise but consistent way, with full references to documents and literature, makes many biographical websites a bit shallow and bleak.

One of the elements in Bradwell v. State of Illinois making this case still interesting is that it involves interpretation of the 14th Amendment to the constitution of the United States. Does denying a married woman the right to be admitted to the bar impair the “privileges and immunities” of a United States citizen? On April 15, 1873, the Supreme Court ruled that this was not “obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States”. In 1890 the Illinois Supreme Court, acting on its own, finally allowed Myra Bradwell to practice law. Long before 1890 Bradwell had become a well-known lawyer as founder of the Chicago Legal News (1868).

I could easily continue reaping the fruits brought together at the WLH project and elsewhere, like the short notice in the online exhibit Outspoken: Chicago’s Free Speech Tradition of the Newberry Library, Chicago, but it is more interesting to read the case, to ponder the arguments used in the nineteenth century, to look at the video of the re-enactment and to consider the new arguments presented. Of course much more can be said about American women lawyers, but for today I leave it to you to start further research for example at the history section of the website of the American National Conference of Women Bar Associations.

A Dutch twist

For your convenience I will end here with more information about the other links on women’s history I wrote about earlier, giving this post, too, the customary Dutch twist. The International Institute for Social History (IISH) in Amsterdam has a fine links selection on women’s history. The IISH maintains the Virtual Library Women’s History, a gateway to women’s history, and ViVa Women’s History, an online current bibliography of women’s and gender history, both indispensable research tools. I noticed earlier on also the IntLawGrrls blog where Bradwell figured in 2009 in the On this Day sectionAletta, formerly known as the International Archive for the Women’s Movement, also based in Amsterdam, has an open access image database. The name Aletta comes from the first Dutch female physician Aletta Jacobs (1854-1929), a pioneer of women’s liberation. She married to the Dutch politician Carel Victor Gerritsen (1850-1905). The Gerritsen collection with early books on the history of the women’s movement has been digitized, but is accessible only at subscribing libraries and their card holders, and for card holders of the Aletta Institute. This enables you to use two other digital collections at the Aletta Institute as well.

All those who would like to know more about women’s legal history outside the United States should perhaps have a look at the program of next month’s conference in Chicago (October 13 and 14, 2011) with the theme Women’s Legal History: A Global Perspective.

A postscript

While searching for other matters an Italian website, Donne e diritti. Osservatorio di storiografica giuridica [Women and rights. An observatory of juridical historiography] came to my attention. It is a portal for women’s legal history with articles, sources in translation, detailed bibliographies, a calendar of events and a link selection with an international orientation.