Doctorate Thesis: ‘Justice in the Premises’

In the early nineteenth-century, before the system of private prosecutions gave way to the public prosecution system we now know –and before the rise of many civic welfare institutions and social movements dedicated to combating child abuse, spousal battery, protecting the mentally ill, animal welfare and the like–how did Montreal courts grapple with the issue of family violence? Given the sanctity of the family and the public / private sphere dichotomy, we might expect that they chose not to deal with some of these issues at all. This thesis uses the voluminous primary sources of the judicial archives to look systematically as to how courts dealt with cases involving infanticide, child abuse, family violence and spousal murder. In so doing, a clearer picture of the causes of these forms of social pathology and its similarities across jurisdictions and time periods emerges, as well as an indication that courts were willing to interpose themselves into the family sphere to protect children and vulnerable spouses against physical aggression.

Justice in the Premises: Family Violence and the Law in Montreal, 1825 – 1850
(McGill University, Institute of Comparative Law, Doctor of Civil Law thesis, 2003).

Master’s Thesis: ‘The Law of Servants and the Servants of Law’

Using the judicial archives, this thesis seeks to recreate the complex and overlapping legal regime that governed master-servant relations during this formative time in Montreal’s economic life. While traditional artisan-based labor relations were breaking down, these relationships became increasingly contractual in nature. In a system that was weighed in favor of preserving employer’s rights vis-à-vis their employees, courts nonetheless enforced servants’ rights against their masters as well. This study explores the nature of the offenses related to the breakdown of labor relationship as they were enforced within the city limits, and the differences in legal approach towards these issues outside of the city. This thesis was published in two parts by the McGill Law Journal in 2001.

The Law of Servants and the Servants of Law: Judicial Regulation of Labour Relations in Montreal 1830 – 1845
(McGill University, Institute of Comparative Law, Master of Laws thesis, 1997).

Between A Rock And A Hot Place

Before their gradual disappearance in the middle ages, ordeals were used as a form of adjudication of guilt and innocence in criminal proceedings. Based on the supposition that divine knowledge and intervention would steer the results in such a way as to punish the guilty and protect the innocence, ordeals fell into disrepute after the Catholic Church banned clerical participation in 1215 A.D.  This article discusses various forms of ordeals, such as the ordeal of hot iron, and analyzes whether, and to what extent, these ordeals could have served as “rational” forms of adjudication during the period.

Between A Rock And A Hot Place: The Role Of Subjectivity In The Medieval Ordeal By Hot Iron
25 Anglo-American Law Review 87 (1996)

‘The Terrible Haystack Murder’

The 1833 murder trial of Rev. Ephraim Avery was one of the great 19th century American criminal trials. Resulting in a nearly-unprecedented amount of media interest, it became one of the first trials of its kind to achieve national, and even international, coverage. Did the good Reverend seduce, impregnate and then murder the attractive, unmarried young woman who worked in a local factory, staging her death to look as a suicide? A jury acquitted him, but there is enough evidence to suggest that Rev. Avery was culpable. The narrative of the trial allows us a window into many defining issues common to the period, such as gender, religion, sexuality, and social mores.

‘The Terrible Haystack Murder’: Prudery, Piety and Paradox in Antebellum America
40 American Journal of Legal History 1 (1998)

‘Too Well Used by His Master’

Traces the increasingly-contractual nature of master-servant relations during this formative period in Montreal labor history, by analyzing the sometimes-competing but always-overlapping sources such as notarial contracts and indentures, oral agreements, provincial statutes, municipal ordinances, common law principles and judicial discretion that governed these relationships. By analyzing these sources and the cases brought before courts during this period, a clearer picture of the extent to which servants were able to protect their rights during this period, vis-à-vis their employers, emerges.

Too Well Used by His Master’: Judicial Enforcement of Servants’ Rights in Montreal, 1830-1845
46 McGill Law Journal 491 (2001)

The Law of Servants and the Servants of Law

This articles uses extensive primary source materials from the judicial archives and newspaper accounts to analyze the legal and quasi-legal aspects of Montreal labor law during the early nineteenth century. While the letter of the law favored masters, courts were relatively even-handed in adjudicating master-servant disputes. Similarities and difference in adjudicative approaches by courts within and without the city limits are also analyzed.

The Law of Servants and the Servant of Law: Enforcing Masters’ Rights in Montreal, 1830-1845
46 McGill Law Journal 779 (2001)

‘A Noble Roster’

Written in 1998 to commemorate the formal sesquicentennial of McGill University’s Faculty of Law, this was designed to be an ‘armchair’ history book. Divided into thematic chapters, the book includes many primary sources, photos, poems, songs and graphics that help illuminate the Faculty’s legacy.

Someone at http://encycl.opentopia.com/term/McGill_University_Faculty_of_Law was kind enough to state thusly: “For a highly-informative as well as enjoyable history of the Faculty of Law, consult “‘A Noble Roster’: One Hundred and Fifty Years of Law at McGill” (McGill University, 1999), by Ian C. Pilarczyk. This work is divided thematically rather than chronologically, making it an unusual example of this genre.”  I hope you will agree!

‘A Noble Roster’: 150 Years of Law at McGill
(Montreal: Martineau-Gelfand, 1999)

Chapter I: “The Listful Lure of Legal Lore”
Chapter II: Profiles from McGill’s Past
Chapter III: “What A Lonely Business It Was To Be The Only Woman”
Chapter IV: Social Snapshots of McGill Through The Ages
Chapter V: The Peripatetic Faculty: The Many Homes of McGill Law
Chapter VI: «Mes souvenirs sont les meilleurs!» (Memories of McGill)
Chapter VII: The Social Contributions of McGill Law

The Potentially High Price of Whispering ‘Sweet Nothings’

A newstory last week piqued my interest as a legal historian, as it implicated a centuries-old form of legal action, one of the “heartbalm torts”, commonly known as “alienation of affection”. Recently, in a court in Pitt County, North Carolina, a wronged ex-spouse, Dr. Lynn Arcara, was awarded $5.8 million dollars against a former friend who had an affair with her (now-ex) husband. The defendant in this action, Susan Pecoraro, had been a close friend of Dr. Arcara, and had been invited to stay with the couple in 2006 at their home in Chapel Hill, North Carolina. Dr. Arcara was several months’ pregnant at the time, and Pecoraro helped decorate their nursery while apaprently making advances on Dr. Arcara’s husband, Russell.

Their resulting affair was discovered by the plaintiff in 2007, which ultimately resulted in the Arcara’s divorce. Dr. Arcara sued her former friend for damages under North Carolina law, the state being one of only a handful that has not legislatively or judicially abolished this archaic cause of action. In a moment reminiscent of 19th century ‘breach of promise to marry’ suits — more on that later– Arcana’s lawyer presented to the court letters and other documents showing that the couple had been happily married before the affair began. The award of $5.8 million is the second highest in North Carolina’s history. One of only seven states where this cause of action has survived, North Carolina has the additional distinction of being the most prolific in terms of volume, handling up to 200 of these cases every year! It is doubtful that the plaintiff will recover, as not only is the award far in excess of the defendant’s ability to pay, but the verdict is not enforceable outside state lines. The defendant therefore remains safely ensconced in Maryland, out of harm’s way, but risks being arrested on a bench warrant should she ever venture into North Carolina. The moral of the story, as Arcara’s attorney rather inelegantly put it, is that “if you want to have an affair, you need to choose someone who doesn’t reside in North Carolina to have it with because you are going to open yourself up to a liability if you do so.”

In order for a plaintiff to prevail in these suits, the common law held that the plaintiff had to show that the marriage had been a loving one; that the spousal love was alienated (i.e., destroyed); and that the defendant was responsible for this alienation, based on a ‘preponderance of the evidence’ standard as is instrinsic to civil suits. Note that nowhere in these elements is intentionality of motive a factor– it need not be the case that the defendant had intended to alienate the married spouses, but merely that his or her acts had been wilfully or intentionally done, and that those acts could reasonably and foreseeably have been predicted to adversely impact the marriage. Thus, the intentionality has to do with the doing of the acts themselves, not with their desired effect.

How can a defendant successfully contest such a suit? Most commonly through a showing that he or she did not know the spouse was married, or that the defendant had not instigated the affair. Other less common defenses could include a showing that the spouses were not lawfully married.

The record for the highest such judgment in North Carolina, incidentally, was reached earlier this year when 60 year-old resident Cynthia Shackleford was awarded a judgment of $9 million dollars against the woman who had “deliberately seduced” her husband, Alan. The moral of the story, in my opinion, is best expressed thus: Don’t whisper ‘sweet nothings’ to someone else’s spouse in North Carolina, or it could cost you dearly!

Welcome to IanCPilarczyk.com

Hello, and welcome to my legal history blog! The purpose of this website is, most simply, to explore legal history topics of interest as they arise in the news, or as they come to mind, or merely based on serendipity. It also provides additional course materials related to my course on Famous Trials in U.S. History.

I believe that legal history, while often overlooked, is central to the study and understanding of our legal system– after all, precedent is the building block for our legal system, and what is precedent if not history? While the focus will be primarily on the history of law and how it relates to contemporary issues, part of it is intended to be devoted to emerging trends in the manner in which U.S. law is taught.

As a historian, I have a foundation to study how the law and its teaching has evolved; as director of a innovative blended learning Master of Laws program at Boston University, I have a unique opportunity to examine the future of legal developments and law teaching. Whatever your interest, I hope that you will find this legal history blog to be a worthwhile addition to the online universe. Thank you for stopping by!

 

Best wishes,

Ian C. Pilarczyk

http://iancpilarczyk.brandyourself.com/