A Trying Question: The Jury in Nineteenth-Century Canada 9781442685345

Table of contents :
Contents
Foreword
Acknowledgments
Abbreviations
Maps
Introduction
Part One: Juror Apathy and Allegations of Jury Packing, 1820s–1848
1 Storms, Roads, and Harvest Time: The Jury System and Attitudes towards Jury Service in Nova Scotia
2. The Jury System and Attitudes towards Jury Service in Upper Canada
3. ‘The Bean Box’: Reformers and the Politicization of the Jury System in Nova Scotia
4. Reformers, Rebellion, and the Jury System of Upper Canada
Part Two: Responsible Government and the Jury, 1848–1867
5. Responsible Government, the Magistrates’ Affair, and the Breakdown of the Nova Scotia Jury System
6. Responsible Government and the 1850 Upper Canada Jury Act
Part Three: The Decline of the Jury in Post-Confederation Canada, 1867–1880s
7. ‘We Have Now No Fears of Star Chamber Justice’: The Decline of the Jury in Nova Scotia
8. ‘The Day Has Gone By for the Worship of Legal Idols’: The Decline of the Jury in Ontario
Conclusion
Notes
Index

Citation preview

A TRYING QUESTION The Jury in Nineteenth-Century Canada

PATRONS OF THE SOCIETY

Blake, Cassels & Graydon LLP Gowlings McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Paliare Roland Rosenberg Rothstein LLP Torkin Manes Cohen Arbus LLP Torys LLP WeirFoulds LLP

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

A TRYING QUESTION The Jury in Nineteenth-Century Canada

R. BLAKE BROWN

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto Buffalo London

© Osgoode Society for Canadian Legal History 2009 www.utppublishing.com www.osgoodesociety.ca Printed in Canada isbn 978-1-4426-4038-2

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks.

Library and Archives Canada Cataloguing in Publication Brown, R. Blake A trying question : the jury in nineteenth-century Canada / R. Blake Brown. Includes bibliographical references and index. isbn 978-1-4426-4038-2 1. Jury – Canada – History – 19th century. I. Osgoode Society for Canadian Legal History II. Title. ke8495.b76 2009 kf8972.b76 2009

347.71’075209034

c2009-902999-5

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Foreword

vii

Acknowledgments Abbreviations Maps

ix xi

xii

Introduction 3 Part One: Juror Apathy and Allegations of Jury Packing, 1820s–1848 15 1 Storms, Roads, and Harvest Time: The Jury System and Attitudes towards Jury Service in Nova Scotia 17 2 The Jury System and Attitudes towards Jury Service in Upper Canada 43 3 ‘The Bean Box’: Reformers and the Politicization of the Jury System in Nova Scotia 57 4 Reformers, Rebellion, and the Jury System of Upper Canada

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Contents

Part Two: Responsible Government and the Jury, 1848–1867

99

5 Responsible Government, the Magistrates’ Affair, and the Breakdown of the Nova Scotia Jury System 101 6 Responsible Government and the 1850 Upper Canada Jury Act 133 Part Three: The Decline of the Jury in Post-Confederation Canada, 1867–1880s 173 7 ‘We Have Now No Fears of Star Chamber Justice’: The Decline of the Jury in Nova Scotia 175 8 ‘The Day Has Gone By for the Worship of Legal Idols’: The Decline of the Jury in Ontario 192 Conclusion 216 Notes

225

Index

323

Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

We think of the jury not just as a central institution of the trial process but also as a body that exemplifies the distinctiveness and superiority of the common law tradition. In this first book-length study devoted to the history of the jury in Canada, R. Blake Brown shows that the jury was also often controversial in the nineteenth century, and much of what he recounts will perhaps surprise the modern reader. The jury could be used for political ends when the authorities sought to >pack= juries to achieve the verdicts they wanted in high-profile cases. At other times it was seen simply as a nuisance for those required to serve, an unwanted distraction from everyday economic activities. With the growth of professionalism it also came to be seen as an ineffective and amateurish body that ought to be supplanted by men trained to sift through the evidence and come to the right conclusions. This book is a fascinating account of the history of a key legal institution. The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, formerly attorney general for Ontario and chief justice of the province, and officials of the Law Society of Upper Canada. The Society seeks to stimulate the study of legal history in Canada by supporting researchers, collecting oral histories, and publishing volumes that contribute to legal-historical scholarship in Canada. It has published seventy-eight

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Foreword

books on the courts, the judiciary, and the legal profession, as well as on the history of crime and punishment, women and law, law and economy, the legal treatment of ethnic minorities, and famous cases and significant trials in all areas of the law. Current directors of the Osgoode Society for Canadian Legal History are Robert Armstrong, Christopher Bentley, Kenneth Binks, Patrick Brode, Brian Bucknall, David Chernos, Kirby Chown, J. Douglas Ewart, Martin Friedland, John Honsberger, Horace Krever, C. Ian Kyer, Virginia MacLean, Patricia McMahon, Roy McMurtry, W.A. Derry Millar, Jim Phillips, Paul Reinhardt, Joel Richler, William Ross, Paul Schabas, Robert Sharpe, James Spence, Richard Tinsley, and Michael Tulloch. The annual report and information about membership may be obtained by writing to the Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416-947-3321. E-mail: [email protected]. Website: www. osgoodesociety.ca. R. Roy McMurtry President Jim Phillips Editor-in-Chief

Acknowledgments

I owe thanks to a number of people who greatly assisted me in researching and writing this book. Philip Girard supervised the original version of this project as a PhD dissertation at Dalhousie University. He perfectly fulfilled the supervisor’s role. He both allowed me a measure of independence and provided generously his time and insight whenever I required assistance. The other members of my thesis committee, Shirley Tillotson and Jerry Bannister, offered valuable comments, as did my outside examiner, David Murray. David Sutherland provided insights on the Nova Scotia chapters, and the reports from the Osgoode Society’s two readers greatly improved the manuscript. Jim Phillips has supported my work since I was a green law student at the University of Toronto. He kindly allowed me to examine his files containing nineteenth-century Nova Scotia newspaper articles, and, as editor-in-chief of the Osgoode Society, provided wonderful suggestions on how to improve this work. Douglas Hay of York University spurred my interest in the history of juries when he encouraged me to prepare a paper on the history of jury challenges during my MA studies. Several universities and granting agencies assisted in the completion of this project. The Department of History at Dalhousie proved an enriching place to complete a PhD. Saint Mary’s University hosted my post-doctoral fellowship, giving me a wonderful working space at the Gorsebrook Institute for Atlantic Canada Studies. The Social Science and Humanities Research Council of Canada provided doctoral

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Acknowledgments

and post-doctoral fellowships. The Killam Trusts awarded me an Izaak Walton Killam Memorial Scholarship during my doctoral studies. I undertook final revisions during my time as a Fulbright Visiting Scholar at Vanderbilt University in early 2008, an award funded by the Canada-U.S. Fulbright Commission and Vanderbilt University. Saint Mary’s kindly granted me a research leave to undertake the Fulbright award in my first year of teaching. Archivists at the Ontario Archives, National Archives of Canada, the Baldwin Room of the Toronto Reference Library, and the Nova Scotia Archives and Records Management proved exceedingly helpful. Special thanks to Patricia Kennedy at the National Archives, who personally searched through records closed to the public to locate a number of petitions sent to the legislature of the Province of Canada. In February 2007 I received an unpleasant surprise – I was diagnosed with tongue cancer. As a thirty-three-year-old non-smoker, I was, to say the least, surprised and displeased by the diagnosis. I owe special thanks to the doctors and nurses of the Ear, Nose, and Throat Surgery Unit of the Victoria General Hospital, especially Dr Mark Taylor, for the wonderful treatment I received and for my current clean bill of health. My wife, Jennifer Llewellyn, and our two young sons, Owen and Elliott, have kept my spirits up in innumerable ways. Jennifer patiently listened to my thoughts on this project, carefully edited a draft version, and helped me through my recuperation from cancer. My parents, Brad and Emily Brown, instilled in me the importance of history, encouraged my reading as a youth, and have even adjusted to having a ‘career student’ in the family. My sister, Janice Brown, carefully edited an early draft. Thanks to several journals for permitting me to republish material that first appeared on their pages. Acadiensis published part of what has become chapter 1. Material on municipal reform that appears in chapter 3, 5, and 7 was drawn together in an article published by the Journal of the Royal Nova Scotia Historical Society. Part of chapter 3 appeared in the Journal of the Canadian Historical Association.

Abbreviations

All E.R. CIHM D.C.B. JHA JLA JLC LAC NSARM MG NSR OA RG R.S.C. R.S.N.S. R.S.O. S.C. S.N.B. S.N.S. S.O. S.Q. UCCP UCKB UCQB

All England Law Reports Canadian Institute for Historical Microreproductions Dictionary of Canadian Biography Journal of the House of Assembly Journal of the Legislative Assembly Journal of the Legislative Council Library and Archives Canada Nova Scotia Archives and Records Management Manuscript Group Nova Scotia Reports Ontario Archives Record Group Revised Statutes of Canada Revised Statutes of Nova Scotia Revised States of Ontario Statutes of Canada Statutes of New Brunswick Statutes of Nova Scotia Statutes of Ontario Statutes of Quebec Upper Canada Common Pleas Reports Upper Canada King’s Bench Reports Upper Canada Queen’s Bench Reports

Map 1: Nova Scotia Counties, 1851–present. (Antigonish County was Sydney County 1836–63.) Courtesy Nova Scotia Archives and Records Management.

Map 2: Ontario Counties, 1851.

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A TRYING QUESTION The Jury in Nineteenth-Century Canada

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Introduction

The jury holds a cherished place in the legal imagination of many Canadians. In part, this connection to juries is fostered by popular culture. Canadians watch various American television programs, such as Law and Order, that emphasize the importance of jurors deciding the fate of their fellow citizens. Based on the content of such shows, viewers might conclude that juries decide almost all cases. This perception differs from reality, however, for juries today determine outcomes in only a small minority of criminal trials and civil disputes. Unbeknownst to most Canadians, during the nineteenth century, citizens fiercely debated juries and reduced many of the traditional roles of juries in the justice system and in local governance. Rather than celebrate the jury, many nineteenth-century citizens questioned the capacity of jurors, argued that juries were undemocratic bodies, avoided inconvenient jury duty, and believed that juries hindered the achievement of important state policies. The story of the jury in Nova Scotia and Upper Canada1 between the 1820s and 1880s illustrates the broader decline in the use of juries across what became Canada. In the 1820s, juries played significant roles in the legal and political governance of British North America. Trial juries (otherwise called ‘petit’ or ‘petty’ juries) rendered judgment on a vast number of serious criminal offences and civil claims that went before the inferior and superior courts.2 Grand juries were responsible for determining whether there was sufficient evidence against an accused

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A Trying Question

to have his or her case go to trial. Importantly, grand juries also had significant roles in local government. At General Sessions (or ‘Quarter Sessions’), grand jurors worked with magistrates to help administer local government. By the 1880s, the jury was in precipitous decline in Nova Scotia and Ontario (and throughout the common-law world).3 Individuals were less frequently called to serve on juries, courts with juries came together less often, and the types of cases that juries considered declined in number. In sum, many of the legal disputes that juries would have adjudicated in the first decades of the nineteenth century were shifted to other decision-makers by the end of the century. As well, responsibilities for local governance were stripped from grand juries and given largely to elected local politicians. In the twentieth century, judges sitting alone would find verdicts in most cases without a jury, and democratically elected municipal bodies would administer local governments. Despite the decline in its importance to local government and the justice system, only a remarkably thin literature exists on the nineteenthcentury jury. Historians have produced a number of studies on the English justice system, especially for the eighteenth century, including several excellent works on the jury, although little is known about juries in the nineteenth century.4 There is a developing literature on the American jury, though, once again, more work is required on the nineteenth century.5 This reluctance to examine the jury partly stems from the fact that, in the words of one scholar, the jury ‘has been taken for granted instead of studied.’ Historians have too often ‘assumed that juries were always there and have not changed or developed significantly over time.’6 Several scholars have offered explanations for the decline of juries in the United States. Many argue that trial juries diminished in importance with the growth of plea-bargaining. A common thesis is that plea-bargaining became more common as cases grew in complexity. The United States constitution guaranteed the right to trial by jury in all criminal cases and in civil cases where the amount at issue exceeded $20.7 These guarantees were put in place at a time when the criminal justice system moved swiftly and was unencumbered by many procedural and legal safeguards that gradually lengthened jury trials. The United States, for example, inherited the eighteenth-century English felony trial, which was often a brief, brusque encounter between parties that took minutes not days in front of a judge and jury and without the presence of lawyers.8 When lawyers became more involved in

Introduction

5

criminal trials in the nineteenth century, the law of evidence and trial procedure multiplied in volume and complexity, and trials lengthened. Albert Alschuler, Lawrence Friedman, and John Langbein argue that the American constitutional provisions giving criminal defendants access to juries were sidestepped through the plea-bargain, by which a defendant pled guilty and agreed to release his or her right to a jury trial in exchange for receiving a conviction on a lesser charge, a shorter term of imprisonment, or some other inducement. In the context of lengthening criminal trials, courts encouraged plea-bargaining simply as a means of avoiding jury trials that would bog down the justice system.9 Others argue that changes in legal thought limited the extent to which Americans celebrated the jury. They suggest that late nineteenth-century professionalism and ‘legal formalism’ were important factors. Legal formalism was a way of thinking about the law marked by several characteristics, including a strong belief that law was composed of scientific legal rules that could be discovered by a careful study and application of legal principles; that sharp distinctions could be drawn between, for example, ‘law’ and ‘politics’; and that professional judges could impartially hear the cases before them, having no concern for the policy implications of their rulings.10 According to this way of thinking, jurors, untrained in the intricacies of the law and burdened by their supposed biases, could not be entrusted to reach reasoned verdicts. It was better that professional judges make decisions.11 Still others argue that the changes in legal thought, and the resulting limits on juries, stemmed from a desire by elite Americans to use the justice system for their own economic benefit. Most famously, Morton J. Horwitz argued that the American justice system disposed of jury trials because juries tended to punish corporations for wrongdoing. According to Horwitz, the elimination of juries was part of a bargain between commercial interests and the legal profession that made legal proceedings more conducive to big business.12 Fewer scholars have tackled the reasons for the decline of the jury in Britain, despite the fact that the jury’s fall has been even more precipitous there than in the United States.13 Conor Hanly suggests that the nineteenth-century attack on the civil jury in England and Wales stemmed from three factors. First, lawyers’ growing faith in the independence of the bench decreased the perceived necessity of jurors to prevent judicial partiality from determining judgments. Second, lawyers attempted to professionalize the practice of law, and they thus dis-

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A Trying Question

liked lay jurors. Finally, Hanly argues that the successful introduction of juryless trials in the County Courts in 1846 provided a precedent that critics of juries employed to demonstrate that courts could operate effectively without juries.14 Canadian historians who have considered the reduced importance of juries tend to argue, like Hanly, that efforts to eliminate juries resulted from a desire to professionalize the administration of justice by replacing lay decision-makers with legal professionals. For example, Nancy Parker examines juries in Victoria, British Columbia, between 1858 and 1905, and suggests that their decline ‘may have signaled a broadly based acceptance of professionalized magisterial authority.’15 Professionalism also plays an important role in Paul Romney’s consideration of the nineteenth-century jury – he emphasizes that attacks on the jury stemmed from the growing late-nineteenth-century view that the law was an internally coherent set of rules best applied by judges. As well, he suggests that criticisms of juries reflected a mid-nineteenth-century change in political culture that stressed parliamentary sovereignty, and which thus made the power of jurors seem anachronistic.16 Many of these explanations are important in understanding the history of the jury in Canada. Changes in legal thought, efforts to increase professionalism, attempts to prevent verdicts against corporations, and a faith in the judiciary appeared in nineteenth-century Canadian debates over the jury.17 This study differs from previous works on the jury, however, by examining the inter-relationship between these seemingly disparate factors. As well, the existing explanations do not, by themselves, fully account for the large-scale eradication of juries. Historians, for example, have rarely considered the views of jurors,18 views that, this study shows, were important to the elimination of juries. Further, historians have generally studied the civil jury or the criminal jury, not the broader decline of juries in civil and criminal courts (and in local government). Examining juries in criminal courts, civil cases, and local governance shows how developments in one context often shaped the use of juries in another. An explanation for the jury’s decline also requires that one fully place the jury within its historical context. Various political, geographic, cultural, and intellectual factors underpinned the attacks on the jury launched by judges, politicians, and jurors. One must thus look beyond the reasoning and views of legal professionals to understand the decline of the jury. Broader forces had important roles. This study demonstrates the importance of four interrelated factors: (1) the practical difficulties of employing juries; (2) the rise of the

Introduction

7

movement for responsible government; (3) nineteenth-century efforts at state formation; and (4) the growing hegemony of liberal values. Each of these factors requires a brief explanation. Demonstrating how practical difficulties contributed to the jury’s decline necessitates an appreciation of the jury’s place in English constitutional and political traditions, and an evaluation of the extent to which inhabitants of British North America actually subscribed to these traditions. In other words, understanding the causes of legal change requires an analysis of the effect of local place on inherited legal culture, as well as a consideration of the ebb and flow of new ideas across the Atlantic and across the American border. Local conditions affected attitudes towards juries, as did an awareness of developments in British and American law, which reflected the place British North America in an Atlantic world of intellectual currents, imperial policies, population migrations, and legal reforms.19 The jury came to British North America as a key plank of English legal culture. By the seventeenth century, the English saw juries as protectors of individual freedom in the face of state oppression. The English criminal trial jury ‘came to represent the community in the face of (allegedly) tyrannical or otherwise illegitimate authority.’20 According to Lois G. Schwoerer, the English developed a particular ‘jury ideology’ – a politicized perception of the jury as an institution protecting traditional rights from governmental assault. Schwoerer dates the emergence of this ideology to the political struggles of seventeenth-century England, especially the Glorious Revolution of 1688–9, when a history of juries was invented that rooted them ‘in custom and the distant past.’ The jury was deemed to be part of the ancient and unwritten English constitution that would ‘protect subjects’ liberties from an overbearing, arbitrary government.’21 William Blackstone thus discussed the jury in his Commentaries on the Laws of England and famously said that ‘the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate.’22 By the end of the seventeenth century, this jury ideology had become a pillar of English nationalism. Trial by jury embodied the alleged superiority of the English to the peoples of Europe. Transmitted through widely reprinted political tracts, English jury ideology travelled to many parts of the British Empire, including North America. The transmission of English jury ideology to northern North America did not mean, however, that its place in the legal cultures of the colonies was static. Legal culture is an elastic concept that refers to ‘ideas,

8

A Trying Question

values, expectations and attitudes towards law and legal institutions, which some public or some part of the public holds.’23 The economic and social conditions of colonial environments reshaped legal culture to meet local circumstances. Lawrence Friedman thus reminds us that social and economic conditions, if they are important enough, can bring about ‘changes in attitudes, expectations and desires; and this in turn creates a situation in which people may put new demands, or modify old demands, on legal systems and the legal order.’24 As a core part of the English legal culture, the jury was quickly introduced into Nova Scotia and Upper Canada. However, as will be shown in chapter 1 and chapter 2, local conditions would decrease inhabitants’ adherence to English jury ideology over time. Until the mid-nineteenth century, many of those at the apex of colonial society tended to support the idea of the jury; at the same time, many men eligible for jury service avoided sitting as jurors and called for limits on juries. Inhabitants complained continuously about the inconvenience of serving as jurors. Difficult travel on bad roads and in poor weather made jury service time-consuming and expensive. These physical challenges weakened the jury’s place in the legal cultures of Upper Canada and Nova Scotia, which in turn resulted in legislative initiatives that reduced the use of juries. The movement for responsible government, which was accompanied by debates over the value of political ‘parties’ and the appropriate limits on free speech, constitutes the second key factor in the decline of juries. Advocates of responsible government sought to end the dominant role played in political life by a small group of elite office holders. While ‘responsible government’ became an imprecise slogan, in general, advocates of responsible government wanted those who held power to be accountable to those affected. This meant local self-government, whether by direct democracy (ensuring that local officials were made responsible by elections) or representative democracy (requiring that officials be responsible to elected representatives).25 In both Upper Canada and Nova Scotia, the movement to establish responsible government was accompanied by a growing acceptance of political parties and of a more aggressive press. Before responsible government, ‘Tories’ claimed to oppose the political ‘factionalism’ and loss of independence that the reformers seemed to represent. Many Tories stressed the independence of legislators and lamented the rise of political ‘parties’ that encouraged loyalty through the use of patronage. Despite this stated distaste for parties, the ruling elites of Nova Scotia and Upper Canada

Introduction

9

before responsible government appointed supporters into key positions within the justice system. These officials were responsible for jury selection, and reformers charged that they faced packed juries in political trials. Allegations of jury packing thus permeated political debates in the decades before responsible government. Political debates were especially heated because of the rapid growth of the press in the mid-nineteenth century. The expanding number of politically oriented newspapers in Upper Canada and Nova Scotia, as well as the existence of other public forums such as taverns and voluntary associations, created a ‘bourgeois public sphere’ in which individuals could participate freely in debates over issues of public importance.26 Freedom of the press required that newspaper publishers have some protection from libel suits that could stifle political debate, but charges of jury packing became especially prevalent in high-profile libel cases. This reflected the fact that the jury emerged as one of the battlegrounds in the bitter political struggles that dominated British North America from the 1820s onwards. In other words, the jury was where law and politics often met. This meeting helped undermine the jury. The damage done to juries by their entwinement in debates over the press, political parties, and responsible government in Nova Scotia and Upper Canada before responsible government is considered in chapters 3 and 4. The complaints about jury packing subsided by Confederation. Responsible government, however, continued to negatively affect juries in two other ways. First, the powers granted to the ‘responsible’ legislatures undermined the traditional view that the criminal trial jury was a bulwark against oppression. Commentators, especially after Confederation, suggested that citizens no longer had to fear government tyranny in a time of strengthened democratic institutions. Politicians and legal professionals offered whiggish historical narratives that downgraded the importance of juries as defenders of freedom. Second, the movement for responsible government also affected the role of grand juries in local government. Unelected grand juries were at odds with the mid-nineteenth-century movement for more responsible governance. In Upper Canada in the 1840s, municipal reform was, in part, a means of increasing the power of the executive.27 In Nova Scotia, however, eliminating the role of grand juries (and magistrates) as instruments of local government stemmed largely from popular calls to elect local officials. For advocates of democratic bodies, grand juries were historical anachronisms.

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A Trying Question

The effort of politicians to extend the power of the state in the nineteenth century constitutes the third explanation for the shrinking role of juries. The role of the state increased substantially in the day-to-day affairs of citizens in the nineteenth century. Governments attempted to regulate, police, and collect data on citizens in more systematic ways, and new bureaucratic instruments were designed to ensure the uniform application of government policy.28 As will be shown in chapters 5 and 6, both Nova Scotia and Upper Canada created complex jury selection systems, in part to avoid the allegations of jury packing stemming from heated political debates. When reformers came to power in Nova Scotia after the granting of responsible government, they appointed many reformers to positions within the justice system.29 As a result, in Nova Scotia, new jury selection systems did not end allegations of politically motivated jury packing; instead, jury selection remained contentious during the first half of the 1850s. For a time, then, responsible government further undermined the jury by suggesting that every trial could be a ‘political’ trial. Upper Canada proved more successful than Nova Scotia in ending claims of jury packing. Taking advantage of new municipal institutions, Upper Canadian legislators established methods of data collection and reporting that helped ensure the uniform application of jury laws. New jury acts, however, proved difficult to implement in both jurisdictions. The legislation aggravated complaints about jury service, leading to calls that jurors be paid for the substantial amount of time needed to attend court. In addition, the more complex jury acts proved expensive to administer and no level of government wished to pay for the increased costs. The expense and inconvenience of the new jury selection systems established by more assertive colonial governments led many citizens to urge the elimination of juries. The more muscular governments of British North America also sought to eliminate juries because of the belief that jurors often reached verdicts at odds with state policies. As lay decision-makers incorporated within the state legal system, juries could be confused with government agents. However, because jurors were drawn from local communities, and were intended to represent community values, they created opportunities for citizens to express community agency. Juries were nominally outside the realm of government control and were, therefore, independent of the state. Juries were ‘the instrument which placed a body of citizens between the state and the accused.’30 When juries inflamed ethnic tensions, exposed political patronage, or punished railways for causing personal injuries, to choose a few examples, governments responded by limiting the availability of juries.

Introduction

11

The fourth factor in the decline of juries was the growing hegemony of liberalism. According to Ian McKay, the history of nineteenthcentury Canada was marked by ‘an extensive projection of liberal rule across a large territory’ and an ‘intensive process of subjectification’ in which liberal assumptions were ‘internalized and normalized within the dominion’s subjects.’31 In a liberal state the ‘individual’ is paramount; ‘community’ and ‘society,’ however, are less important. According to McKay, there are three core elements to liberalism. First, ‘liberty,’ which gives individuals their rights, such as the right to sell one’s labour without restriction, freedom of contract, and freedom of the press. Second, ‘equality,’ meaning that the state is to treat all citizens the same. The third element, says McKay, is the right to own property.32 The law is vital to the study of liberal hegemony, as the law was one of the means by which governments in the nineteenth century tried to create a ‘good society’ in a liberal model.33 Legislators in Nova Scotia and Upper Canada disempowered juries in pursuit of liberal goals. McKay identifies seven ‘arresting moments’ in the history of the ‘Canadian Liberal Revolution’ that require exploration. One of these is the ‘codification of a framework for civil and criminal law’ that ‘solidified the liberal ideal of “equality before the law” in a way that potentially made an abstract principle into a tangible reality.’34 A liberal legal regime, however, required more than the consolidation of laws. Juries had to be eliminated to reduce obstacles to individual opportunity because they were thought to represent local community values.35 Many judges, lawyers, and politicians, infused by the liberal spirit of the age, began to believe that the justice system had to be rational and certain. They accused jurors of possessing local biases that made jury decisions unpredictable. They advocated legal systematization and the careful application of ‘scientific’ legal rules, and felt that jurors, untrained in the law, were unable to apply legal principles impartially, as was expected in a liberal legal regime. Commerce and trade required the consistent application of legal rules, jury critics argued, not the rule of local custom as applied by juries. For liberals, local knowledge was somehow suspect, while expert knowledge at the center was ‘true’ and valuable.36 Liberalism thus cast doubt on the utility of juries, even aside from specific problems, such as jury packing. Professional judges, not juries, it was argued, could better apply the law according to liberal principles. Liberal critiques of juries frequently flowed to North America from England, where lawyers were some of the leading advocates of liberal reforms.37 The English liberal lawyer Jeremy Bentham, for example, fre-

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A Trying Question

quently criticized juries, believing that they were inefficient and caused delays and expense.38 The legal professions of Upper Canada and Nova Scotia were similarly instrumental in spreading liberal thinking and in arguing for the elimination of juries.39 Emerging liberal criticisms of juries first appeared before Confederation, and are discussed in chapters 5 and 6. These views became more prominent after Confederation, and are thus discussed again in chapters 7 and 8. The importance of these explanations for the decline of the jury in Canada can be shown by examining two illustrative jurisdictions. Upper Canada and Nova Scotia also provide an opportunity to gauge how variations in factors such as economic resources, climate, geography, political cultures, and immigration patterns affected the history of the jury.40 Local circumstances thus shaped the contours of the decline in each jurisdiction. Nova Scotia and Upper Canada have been chosen for analysis as test cases because of their broad similarities yet subtle differences. For example, they were similarly dominated by Englishspeaking, Protestant elites with strong loyalist traditions. Both attained responsible government in the late 1840s, and experienced persistent charges of politically motivated jury packing. They differed, however, in their geography, relative wealth, and success at implementing new state initiatives, among other things. Despite these differences, the factors that led to the reduced use of juries in both Upper Canada and Nova Scotia proved remarkably similar. Nova Scotians and Upper Canadians discussed the jury throughout the nineteenth century, but the greatest level of discussion occurred between the 1820s and 1880s, dates which thus mark the temporal frame of this study. Debates about juries emerged along with the rise of political reform movements in the 1820s in both Nova Scotia and Upper Canada. Moreover, concerted legislative efforts to reform jury systems began in earnest in both colonies in the mid-1820s. Analysis ends in the 1880s because most of the significant reductions in the use of juries had been implemented by that decade. In exploring the reasons for the decline of juries, several topics commonly investigated by historians of the jury are not addressed. For example, historians have often focused on the class composition of juries in evaluating how courts treated defendants in criminal cases.41 Those studies have shed much light on attitudes towards crime and criminals, but provide few insights into the decline of the jury system. Another, related topic addressed by some historians is the extent to which jury verdicts reflected societal attitudes about ethnicity, race, or

Introduction

13

gender. That is, they explore what conviction rates for rape, infanticide, or murder, to choose a few examples, tell us about the attitudes of jurors towards women or Aboriginal peoples. This book’s focus on the institutional reform of the jury system, however, means that women, who did not serve on juries until the twentieth century, and Aboriginal Canadians do not figure prominently.42 Rather than using extensive statistical analysis to understand the daily operation of the jury system, emphasis is on placing the jury in its constitutional, political, intellectual, and cultural context. The decline of the jury is examined in three parts. The operation of the jury systems of Upper Canada and Nova Scotia between 1825 and 1848 is examined in part one. During the period before responsible government, two dominant issues shaped discussions about juries. The first was the reluctance of eligible men to serve as jurors. Despite the rhetoric of English ‘jury ideology’ at times voiced by the political and legal leadership of Nova Scotia and Upper Canada, many potential jurors wished to avoid jury service. Farmers, fishers, artisans, and merchants generally found jury service time-consuming and unrewarding, and complained consistently about the travel and expense of jury duty. These complaints had a concrete affect on the use of juries, as legislators sought to limit the inconvenience experienced by jurors and to increase the pay to jurors for their time. Allegations of politically motivated jury packing constituted the second issue that dominated jury debates before responsible government. Upper Canadian reformers in the 1820s attacked jury selection procedures, arguing that they allowed sheriffs to pack juries, especially in high-profile libel cases or in state trials. As a result, reformers attempted to amend the jury system of Upper Canada, but they had no success until responsible government. The jury in Nova Scotia also came under intense pressure before 1848 because of increasing political tensions. The 1835 trial of Joseph Howe temporarily suggested that the Nova Scotia jury system was secure from corruption, but by the late 1830s the jury selection process was defined by, at best, sloppy completion, or, at worst, intentional jury packing done for political, ethnic, and religious reasons. In part two, the effects of responsible government on the decline of the jury before Confederation are explored. In Nova Scotia, reformers sought to rebalance the membership of grand juries by appointing many ‘political’ magistrates who would ensure that juries were not predominantly made up of Tories. This led many to claim that the jury system had been unfairly politicized. Challenges to the jury system

14

A Trying Question

came increasingly from Tories, who charged that the large number of magistrates appointed by the reformers were intent on packing juries against them. The politicization of the jury system also contributed to failed legislative attempts in the 1850s to end grand juries’ traditional role in the local government of most of Nova Scotia. In Upper Canada, responsible government allowed long-standing critics of the jury system to implement a number of reforms. Robert Baldwin shepherded through the 1850 Upper Canada jury act, which swept aside past practice and created a complex, bureaucratic, and expensive jury selection system. The scheme succeeded substantially in decreasing the number of claims that juries were packed against particular individuals, but the system’s complexity created new problems. The act forced municipalities to pay for the new jury system. Local governments, as a result, found themselves burdened by what proved to be immense costs. Developments from Confederation to the 1880s are examined in part three. Juries came under even sharper attack in this period. Nova Scotians and Ontarians, affected by an emerging liberal sensibility, raised serious questions about the value of the jury system. They charged that lawyers confused jurors, who often lacked the training to sift through evidence and apply the law equally to all citizens. As a result, Nova Scotia reduced the use of civil juries when it created County Courts in the 1870s, placed important limitations on the availability of civil juries in Halifax in the late 1870s, and ended the role of grand juries in the administration of local government in 1879. In Ontario, the trial of the Fenians captured after their failed raid into Upper Canada in 1866 proved the ability of the jury selection machinery created in the 1850s to form relatively impartial juries, even in the most highly charged state trials. Despite this, Ontario greatly reduced the use of jury trials in civil and criminal cases after Confederation.

PART ONE Juror Apathy and Allegations of Jury Packing, 1820s–1848

… the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern. – William Blackstone, Commentaries on the Laws of England, Volume IV (Oxford: Clarendon 1769), 343–44

William Blackstone recognized in the eighteenth century that trial by jury was often an inconvenient instrument for settling disputes, but he warned that it must be retained in case the state ever wished to oppress its subjects. These two alleged characteristics of juries – their inconvenience and their ability to defend against the actions of arbitrary governments – shaped much of the debate about juries before responsible

16

A Trying Question

government. Many of those eligible for jury duty expressed their reluctance to serve. They wished to avoid lengthy trips to and from court and the cost of room and board. The jury also became entwined in the political, religious, and ethnic conflicts that helped define public life in British North America. Allegations of packed juries flew furiously in the pre-responsible government period. Political reformers, Roman Catholics, and Irish immigrants charged that Tories and Protestants dominated juries, especially in any case that had political ramifications. They pleaded the necessity of impartial juries. Both factors ultimately contributed to the decline of juries. The desire to limit the inconvenience to jurors led to efforts in Nova Scotia and Upper Canada to lessen the frequency of jury service. The politicization of juries damaged the belief that the jury was a key defender of liberty. Upper Canada took overt political considerations out of jury selection when it achieved responsible government, but the resulting complex jury selection procedures caused the cost and inconvenience of juries to increase. In Nova Scotia, charges of jury packing did not subside until the mid 1850s, by which time substantial damage had been done to the reputation of the ‘palladium of liberty.’ These two themes are explored in four chapters in part one. In chapters 1 and 2, the challenges to jury duty and the resulting efforts to make jury service less onerous are examined. In chapters 3 and 4, the damage done to the jury by the intricate mixing of politics, ethnicity, and religion is shown.

1 Storms, Roads, and Harvest Time: The Jury System and Attitudes towards Jury Service in Nova Scotia

Nova Scotians of British descent knew of the jury’s esteemed place in constitutional thought as the palladium of liberty. They did not, however, uniformly celebrate the jury. Instead, many frequently expressed their reluctance to serve as jurors. Practical difficulties stemming from geography, climate, topography, work responsibilities and transportation systems made juries inconvenient. Jurors in Halifax complained that jury service took them away from their businesses. Rural inhabitants tended to express slightly different concerns, especially the long travel over bad roads and in bad weather that jury duty entailed, often at times of the year when they were busy scratching out a livelihood. Many people thus avoided sitting on juries, and absenteeism was a common problem. Nova Scotians’ attitude to grand jury service was the most complex. Grand juries were a key part of local governance before the creation of incorporated municipal governments. They had the power to levy taxes for specific purposes, such as assisting the poor, and to grant lucrative prizes such as liquor licenses. As a result, people frequently expressed concern that grand juries be representative of the county or district, even if they themselves did not want to serve. The practical challenges to jury service persisted throughout the nineteenth century and contributed to efforts by legislators to reduce the use of juries and to peoples’ willingness to welcome such reductions. In 1841, the number of juries used in the courts of Nova Scotia declined substantially in response to petitioners who complained of the time, travel, and expense of jury duty.

18

A Trying Question

Nova Scotia and the Introduction of Juries What became Nova Scotia slowly emerged out of the loosely defined area known as Acadia. In the seventeenth century, Acadian culture flourished, partly because of the Acadians’ positive relationship with the Mi’kmaq and Maliseet Aboriginal peoples. France ceded much of Acadia (what became New Brunswick and mainland Nova Scotia) to Britain in 1713, and, at mid-century, Britain made its first sustained efforts at colonizing its new possession. It established Halifax in 1749 and soon after placed German settlers at Lunenburg. Acadian culture was battered, though not extinguished, by the deportation that began in 1755, and many Acadians returned to the region, if not their old homes, in the years following the deportation. The Acadians were scattered throughout the colony, creating small settlements in several remote areas. The influx of approximately 8,000 New England settlers, the Planters, repopulated much of the Acadian territory emptied by the expulsion. Following the American Revolutionary War, Loyalist immigrants came to Nova Scotia.1 The flow of Loyalists resulted in the separation of New Brunswick from Nova Scotia in 1784. Nova Scotia took its modern geographic shape when Cape Breton Island ceased to be an independent colony in 1820. Nova Scotia’s population largely resided close to the sea, for the colony was surrounded by water except for a narrow strip of land, the Chignecto Isthmus, connecting it to New Brunswick. Successive waves of immigrants bolstered the colony’s population. Scots began to arrive, many settling in what became Pictou and Antigonish Counties, and Cape Breton. Some blacks came to Nova Scotia as slaves, more as Loyalists after the American Revolution, and more yet after the War of 1812.2 Thus, by the beginning of the nineteenth century, Nova Scotia consisted of a number of ethnic communities strewn about its rocky coastline and more fertile farming areas. Settlement in the mid-nineteenth century was fragmented,3 and officials in Halifax faced substantial challenges in administering this heterogeneous society.4 Aboriginals, new immigrants, and older European stock made the best of an economy that was prone to cyclical fluctuations. Rural areas struggled to develop an economy based on farming and fishing. Halifax became a trade hub and serviced the British military, which, during times of crisis, created substantial demands for goods. Nova Scotia proved to be a leader in colonial political reform in what became Canada. At Halifax’s founding, a governor and his council ad-

The Jury System and Jury Service in Nova Scotia

19

ministered the colony. In 1758, Nova Scotia received a legislative assembly. The assembly’s power was circumscribed, though its ability to control much of the colony’s purse gave it some authority. A movement for more responsible forms of government emerged in the second quarter of the nineteenth century, when some Nova Scotians began to suggest that the ruling oligarchy was prone to abusing its powers and pursuing personal wealth at the expense of the common good. Nova Scotia became the first colony in British North America to receive responsible government in 1848. Despite a fierce debate over the benefits of Confederation, Nova Scotia became part of Canada in 1867.5 Juries were introduced into what became Nova Scotia with the establishment of a suitably large English population. The British military regime that ruled over mainland Nova Scotia between 1713 and 1749 from its base in Annapolis Royal did not employ juries. Officials distrusted the Acadians, and there were too few suitable English men of property to form a grand jury.6 The founding of Halifax in 1749 marked the beginning of sustained English colonization of Nova Scotia, but it did not mean that all parts of mainland Nova Scotia immediately felt the reach of English legal institutions. Traditional English legal institutions were slowly introduced and extended in Nova Scotia, including several courts that employed juries. The Supreme Court was established in 1754. It originally sat only in Halifax, unless special commissions of oyer and terminer and general delivery adjourned it to a locality outside of Halifax to hear criminal matters, but in 1774 Nova Scotia created a circuit court system.7 Initially, two Supreme Court judges visited Annapolis, Kings, and Cumberland Counties on circuit; over time, the legislature slowly added circuits requiring the justices of the Supreme Court to hear jury trials in more far-flung communities. The Inferior Court of Common Pleas (Common Pleas), established in 1752, also employed juries. It consisted of five local magistrates appointed by commission and sat two or four times per year to try civil causes. The legislature usually established Common Pleas soon after the creation of each new district or county.8 A final court using juries, the General Sessions, took place in each county or district, and had jurisdiction over a number of minor criminal and civil matters. The process of grand jury selection developed in Nova Scotia in the eighteenth century had important ramifications for how nineteenthcentury jurors experienced jury duty. For approximately the first decade after Halifax’s founding, Nova Scotia did not draft its own

20

A Trying Question

criminal procedure statutes, but relied on the laws of England.9 This held true for jury selection. In 1759 and 1760 Nova Scotia passed jury statutes that established property qualifications for service.10 The selection procedure laid down for grand juries required the ‘provost-marshal’ (later the sheriff) to use his discretion to draw up a list of fifty-five potential grand jurors. Twenty-three of these names were drawn by ballot and constituted the grand jury for the Supreme Court for that year. The thirty-two undrawn names were then divided into two groups of sixteen and became grand juries for the General Sessions.11 In 1777, the legislature altered this system by stipulating that a single grand jury would be drawn that would serve at both the Supreme Court and the General Sessions for the entire year, an ‘entirely indigenous innovation’ due to the small size of Halifax.12 This important provision meant that inhabitants selected for grand jury service would henceforth be required to attend the courts several times each year. It made grand jury service an especially onerous duty, as grand jurors would complain vociferously about the challenge of attending multiple court sessions over the course of a year. The selection process established for trial juries would also make jury service in Nova Scotia arduous. Early legislation required that each year the sheriff return a list of eligible jurors to the prothonotaries or clerks of the courts.13 The prothonotaries drew twenty-four names by ballot for the Common Pleas and the General Sessions, and thirty-six names for the Supreme Court.14 This method diverged from the process in England, where balloting to select the panel was not employed during the eighteenth century. English sheriffs possessed the discretion to choose jurors from the lists of eligible men, and sheriffs typically selected jurors who lived close to the courts to help ensure that they attended.15 This difference may have reflected the small number of eligible jurors in Nova Scotia in the mid- to late eighteenth century. Balloting for the panel ensured that sheriffs did not continually call upon the same inhabitants for jury duty. Over time, however, this provision meant that officials lacked the discretion to select jurors likely to attend; instead, they would be forced to draw jurors from the entire district or county. Many jurors, as a result, found themselves required to travel long distances to attend court. A comprehensive Nova Scotia jury selection statute passed in 1796 dictated similar jury selection procedures.16 This act required that the county sheriffs return to the county prothonotaries or clerks a list of all persons qualified to serve as jurors. The prothonotaries or clerks then

The Jury System and Jury Service in Nova Scotia

21

wrote the names of the jurors on ballots and placed them in locked ballot boxes. The grand jury for the county for that year was then drawn, and the sheriff summoned the jurors. The selection process for petit jurors was the same; the prothonotaries at the end of each term or session of a court drew a new panel of petit jurors to be summoned for the next term or session. Like the earlier legislation, the 1796 act divided the responsibility for jury selection between the sheriff and prothonotary, and thus ensured that no one person could be charged with packing a jury.17 Litigants had some say in the composition of juries through ‘challenges,’ which allowed parties to object to one, several, or all of the potential jurors for a case. English law divided challenges into two broad categories. A challenge ‘to the array’ was a challenge to the entire panel of summoned jurors, often due to perceived bias on the part of the person responsible for calling the jurors, typically the sheriff.18 The second type of challenge was ‘to the poll,’ that is, a challenge to an individual panel member. A limited number of challenges to the poll were ‘peremptory’ and did not require the challenging party to give a reason. Peremptory challenges were generally reserved for defendants. An unlimited number of challenges to the poll could be ‘for cause’ in situations in which the opinions or personal characteristics of the juror prevented membership on the jury. For example, a party could challenge a juror for cause if the potential juror was closely related to one of the parties. The Crown also had at its disposal ‘stand-asides,’ also known as ‘standbys.’ This permitted the Crown to ask a potential juror to stand-aside until the entire panel of jurors was called once. At that point, the court again called the first potential juror that had been stood-aside, and the Crown had to demonstrate a challenge for cause. Stand-asides, unlike peremptory challenges, were only limited by the size of the panel.19 Attitudes to Jury Service in Nova Scotia The spread of formal legal and governance systems in Nova Scotia brought with it the expansion of the jury system into the far reaches of the colony. What, then, did people say about juries and their duty to act as jurors? This is an important question that has received little attention from historians, who too often assume that jurors were deeply imbued with English jury ideology.20 An examination of legislative debates, newspapers, and petitions, however, shows that many people

22

A Trying Question

tended to criticize jury service. Nova Scotians occasionally expressed their belief that the jury was a key aspect of the British constitution. For example, in 1825 the speaker of the assembly, and leading member of the bar, Samuel George William Archibald, issued a long tribute to trial by jury during a debate over a jury bill. His speech contained two of the most common arguments offered by nineteenth-century defenders of the jury. He first defended the jury by noting its antiquity, saying that trial by jury had ‘come down to us, immemorial from usage, and has stood the test of ages.’ Second, Archibald emphasized that only the jury could defend against oppression. ‘The trial by Jury in fact is the barrier behind which British liberty has entrenched herself,’ he said, and ‘there the rights, and the liberties of the subject are secured – it is the safeguard of the privileges of the people.’21 In debates over juries and jury service in the nineteenth century, Archibald’s comments were more the exception than the rule. The rhetoric emphasizing the jury as the defender of the rights of Englishmen was typically voiced only during politicized trials. Those eligible for jury duty focused on the inconvenience of jury service.22 Halifax jurors offered more muted complaints than those from rural areas. By the end of the eighteenth century, the Halifax grand jury was an upper-middle-class body, and the trial jury consisted of middling and respectable artisans. Both juries remained the preserve of Halifax’s relatively well to do until Confederation.23 The more respectable classes also filled ‘special juries’ in Halifax. Historians have not yet systematically studied special juries in British North America, but it appears that they, as in England, were usually composed of jurors of a higher social rank than petit juries, and were most often formed in commercial disputes and libel cases.24 Parties opted for such juries for a number of possible reasons, including a desire to have a jury composed of a more knowledgeable group of men, or as a means to delay trial. When a party requested a special jury in Nova Scotia, the prothonotary or his deputy selected a panel of forty-eight potential special jurors by drawing them from the list of qualified freeholders. The parties received a copy of this list. The plaintiff and defendant then took turns striking out names until twenty-four names were left. The sheriff summoned these twenty-four jurors.25 The complaints about the jury system in Halifax reflected the particular concerns of the select group of men eligible for jury duty. For example, a ‘Special Juror’ wrote to the Novascotian in 1825 to urge the assembly to ‘provide some remedy or a fair remuneration for the valu-

The Jury System and Jury Service in Nova Scotia

23

able time spent on Special Juries.’ Too many litigants asked for special juries, the writer charged. This was especially troubling for Halifax merchants who had to deal with jury summonses on a frequent basis. ‘The man of Business, however inconvenient to attend, must either neglect his own affairs, or be liable to a heavy fine,’ claimed ‘Special Juror’, referring to the fines that could be imposed for failing to attend the courts when called for jury service. By increasing the pay for special jurors, ‘by making Special Jurors Guinea Pigs,’ the assembly could ensure that the court ‘would then never be delayed by an empty jury box, and the Public would be much benefited.’26 The comments of the ‘Special Juror’ suggested that adherence to traditional jury ideology among Halifax jurors was not universally strong. The challenges of jury duty in Halifax was reflected in the decision of the legislator Charles Rufus Fairbanks to introduce a bill for the regulation of special juries in 1825 that would have increased the fees and fines for special jurors, and reduced the size of the special jury panels and special juries. A Halifax lawyer with investments in gristmilling, sawmilling, marine insurance, whaling, coal mining, and land speculation, Fairbanks consistently represented the interests of prominent Halifax businessmen in the assembly.27 In attempting to reduce the number of special jurors, he said that the smaller number would relieve the merchants of Halifax, whom he chiefly had in mind when framing the bill, from ‘so oppressive a duty,’ for ‘what with attendance upon the grand and other juries, individuals were often compelled to spend one hundred days during the course of the year in the service of the public.’28 Fairbanks’ claim derived from the fact that in Halifax there were four terms of the Supreme Court and four of the General Sessions. As a result, in some years grand jurors (who were selected for the year and sat on both courts), and who also mostly comprised special juries, were obliged to attend more than eighty days.29 The special jury act ultimately passed by the legislature in 1825 did not decrease the number of required jurors, but it did provide special jurors five shillings for each case they tried. To discourage litigants from asking for special juries, the act also gave judges the discretion to force the requesting party to pay the costs of the special jury if the court thought that a regular petit jury could have tried the issue.30 The inconvenience of jury service in Halifax led the legislature to make jury duty less frequent for some inhabitants of Halifax County. The 1796 jury act did not require the sheriff to create a list of all eligible jurors around Halifax; rather, the sheriff needed to select only those

24

A Trying Question

jurors who lived on the Halifax peninsula. This selection bias, however, led to complaints from city residents that they bore a heavy burden of jury duty. An 1827 act sought to rectify this perceived inequity. The statute noted the ‘great inconveniences’ that had arisen because grand and petit jurors were ‘returned and summoned from the Town and Peninsula of Halifax only.’ It was, instead, ‘just and expedient that all the inhabitants within the vicinity of the said Town’ should serve as grand and petit jurors. The act thus allowed for the selection of any eligible juror living within fifteen miles of Halifax.31 Outside of Halifax, the complaints about jury duty were more common and more pointed. The complaints reflected the challenges of jury service in rural areas, challenges accentuated by the selection procedures which drew jurors from all parts of the county or district. A common grievance was that jury duty required too much travel. Nova Scotians often grumbled that the location of the county courthouse made it very difficult for jurors to attend. For example, several petitions came from Hants County complaining that the county courthouse was in the town of Windsor. This meant that the petitioners had ‘long laboured under a very great disadvantage,’ since ‘many of your Petitioners who reside in the eastern parts of the county, have to travel nearly sixty miles to attend Court.’32 The distances jurors had to travel also played a prominent role in a long-standing dispute over the location of the courthouse in Cumberland County. In 1816 the location of the Cumberland circuit had moved from Amherst to River Philip (now Port Philip).33 This move resulted in the submission of numerous petitions that either advocated or opposed the idea that the courts should meet in Amherst instead. In 1825, for example, petitioners from the Townships of Amherst and Fort Lawrence complained that the Supreme Court met at River Philip even though most residents of the county lived near Amherst. The result was inconvenience for ‘those persons Jurors, Suitors and Witnesses whose necessities oblige them oftenest to resort to the Courts.’ To bolster their argument, the petitioners countered a claim made by inhabitants of Remsheg (now Wallace) that the Supreme Court should meet in River Philip by detailing who had served as jurors, and, thus, which community had been most inconvenienced by the location of the courthouse. During the nine years the court had been held at River Philip, 141 jurors had attended from Amherst and vicinity, while only 16 grand jurors and 8 petit jurors from Remsheg had attended.34 In 1830, the legislature finally moved the court back to Amherst.35 Underlying these complaints about travel for jury service was the state of the roads in many areas of Nova Scotia in the early to mid nine-

The Jury System and Jury Service in Nova Scotia

25

teenth century. While some parts of the road system were relatively well developed by 1830, travelling by road remained challenging and time-consuming.36 The government spent considerable sums for road construction in the 1820s and 1830s, and the statute labour system ostensibly required able-bodied men to work a specified number of days on the upkeep and improvement of roads. By 1850, Nova Scotia had upwards of 1,000 miles of ‘Great Roads’ running between many of the major towns of the colony. The Great Western Road that linked Halifax to the Annapolis Valley ran to Yarmouth by mid century. The Great Northern connected Halifax with Amherst (and New Brunswick) by mid century, and by 1843 the Great Eastern that ran from Halifax to Truro reached the Gut of Canso, where a ferry connected it to the Old Sydney Road that snaked its way through Cape Breton to Sydney. Travel remained slow, however, despite the road improvements. A stagecoach trip between Halifax and Annapolis still took three days in the 1840s. The route along the eastern shore of Nova Scotia east of Musquodobit Harbour was an ill-maintained path, and the road connecting Halifax to Liverpool along the south shore was only good enough to permit limited stagecoach service.37 Even those who could afford the best available comforts found travelling difficult in the midnineteenth century. Circuit travel for the justices of the Supreme Court, for instance, was often unpleasant and ‘hardly exemplified ceremonial majesty.’38Another serious problem for those called to jury service was the state of the side roads that connected their homes to the minor county centres that accommodated the courts. While the ‘great’ roads improved, the routes connecting them to outlying communities remained of disparate quality. It is therefore unsurprising that the poor quality of the roads was a common grievance among those who took issue with the travel involved in attending court. For example, in January 1828, petitioners from the community of Arichat in Cape Breton County asked that the dates of the Common Pleas and General Sessions be moved. At the time, the spring sittings of these courts occurred in March, a time that caused special trouble, ‘owing to the incomplete state of the Road from Sydney to Arichat, a distance of upwards of sixty miles, and the great depth of snow with which the roads are usually covered at that Season.’39 From Yarmouth came another complaint about the state of the roads. Over sixty people from Yarmouth and Argyle complained in 1834 that attending the court at Shelburne necessitated an onerous sixty-seven mile trip from Yarmouth ‘between which places the Post Road is always bad and sometimes almost impassable.’40 Travel for jury duty in Nova Scotia could be especially unpleasant

26

A Trying Question

because of inclement weather. Weather was a concern for 130 inhabitants of Parrsborough, which was then in Kings County, when they requested that their community become part of Cumberland County. As Parrsborough was on the opposite side of the Minas Basin from the capital of Kings County, they were thus ‘compelled to go by water to Horton, where all His Majesty’s Courts of Justice are held’ as suitors, witnesses, and jurors. This entailed a trip that was ‘expensive and unpleasant’ and exposed to ‘the sudden gusts of winds which endanger the Navigation of the Bay of Mines.’ The winter made travel worse, as ice prevented travel by water. Then, those who had to attend court had to travel through Halifax, ‘a distance of nearly two hundred miles.’41 Many petitioners from Cape Breton also complained about weatherrelated travel difficulties. For example, the magistrates of northeastern Cape Breton asked that the date of the Common Pleas be moved from the second Tuesday of April, a date that was ‘extremely inconvenient by reason that almost invariably at that time the ice on the lakes and rivers is breaking up,’ which made ‘passage over it extremely precarious and unsafe’ for jurors. In the previous two years ‘much inconvenience was experienced by the said Jurors and other persons in giving such attendance, and in some instances, several of them were … prevented from attending.’42 Jurors faced additional burdens once they completed their journeys. First and foremost, they had to find a place to stay. If they had travelled long distances to attend court, they were precluded from returning home in the evening. In 1829, ‘Moderator’ thus complained in the Novascotian that when the residents of Parrsborough attended court in Horton they were detained a week or more ‘all the time perhaps on expenses at a public inn.’43 In many small towns in Nova Scotia it was difficult to find acceptable lodging during court sittings. In larger centres, there were a few fine inns offering good food and nice accommodations, but in more rural areas some farmers operated ‘inns’ in their farmhouses to supplement their incomes.44 The government was aware of this practical issue. For example, in discussing whether one of the terms of the Supreme Court should be held in Barrington rather than only in Shelburne, a committee of the assembly pointed out that the people of Barrington had furnished a courthouse, around which ‘the Judges, the Bar, and Jurors, and Suitors, could be sufficiently and comfortably accommodated.’45 Gould v. Gould, an 1842 Supreme Court case from Amherst, provides a rare window into the challenge of accommodation for jurors.46 Dur-

The Jury System and Jury Service in Nova Scotia

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ing the trial, the defendant, George Gould, had one of the jurors, Martin King, lodge at his home, and had shared a glass of rum with another of the jurors, John Roberts, at a local inn. On appeal, Chief Justice Brenton Halliburton and Justice William Blowers Bliss held that these transgressions did not require a new trial. In excusing the juror from sleeping at the defendant’s house, Halliburton emphasized the difficulty of finding accommodations in many communities and concluded that the courts should not punish people who provided hospitality to their neighbours: [I]n a country like this, where our little county towns are so crowded during the sittings of the Court, that persons frequently find great difficulty in procuring a night’s lodging, I cannot think that extending an act of hospitability so very common throughout the Province to a Juror who sought for it, ought to vitiate the verdict. A party is bound not to do any act to win the favor of a Juror who is trying his cause, but can he be required to do an act so offensive to him as to turn him out of doors when he came to seek what I repeat is a most common act of hospitability here, and at a time when it is often difficult to procure such accommodation at the little inns in the country towns.47

Halliburton was also not especially concerned about the defendant sharing rum with a juror, as the incident had occurred accidentally when one of the jurors sat with Gould, who, ‘in accordance with a custom’ asked the juror to share the glass of rum he had just ordered.48 Bliss also refused to grant a new trial, saying that it made little sense to set aside every verdict for a party who ‘may have incautiously, perhaps, given a Juror the most trifling article of food, as a few figs, a pippin, or a sandwich.’49 The travel and expense incurred were even more irksome when Nova Scotians attended court but did not actually get to serve as jurors. In 1839, petitioners from Cumberland County asked for the abolition of one session of the Common Pleas. The petitioners complained of wasting money and time bringing actions in inferior court only to subsequently take appeals to the Supreme Court. They also felt that the grand and petit jurors might have some of their burden removed, especially the petit jurors, who frequently stayed at the inferior court for several days ‘only to be told that there were no suits for trials to require their further attendance.’50 This complaint is understandable, given that there were relatively few jury trials in the Common Pleas and the Supreme Court in the 1830s. Between 1832 and 1836 there were 389 civil trials in the Common Pleas and Supreme Court, exclusive of

28

A Trying Question

those in Cape Breton and Halifax. This meant that there was an average of just eighty civil trials per year spread out over twenty-five terms of the Supreme Court and twenty-six terms of the Common Pleas.51 Clearly, many jurors attended court and had little to do.52 The timing of courts magnified complaints about jury service. The majority of people in Nova Scotia in the 1830s and 1840s lived on farms, often combining mixed farming with fishing, lumbering, and other seasonal activities.53 Numerous petitioners stated that jury service interfered with farming or fishing. For example, Hants County petitioners expressed the ‘great inconvenience and expense’ incurred because of the number of courts. One court, they continued, ‘takes place in the most inclement season of the year and the other three in seed time and harvest.’54 Similarly, petitioners from Cumberland County in 1834 carefully laid out the concerns about the timing and number of courts. The petitioners said that they were chiefly engaged in agricultural pursuits – the time for carrying on which in this Country being exceedingly limited and precarious, their attention has been drawn to the great and wasteful drawbacks on their time which is made in attending on the Supreme and Inferior Courts four times in each year, as Grand and Petit Jurors, Witnesses etc. Two of these Courts take place in seed time and harvest – times of all others peculiarly valuable to the Husbandman.55

Those employed primarily in the fishery also grumbled. For example, in 1826 residents of Guysborough complained about the distance to the courthouse at Antigonish. The grand jurors from communities such as St Mary’s and Canso faced ‘an annual expense of six or seven pounds.’ This was made worse by ‘their great loss of time at that critical period of the fisheries.’56 Another petition from what became Guysborough County gave a sense of how courts could interfere with both fishing and farming in a mixed economy. The Common Pleas and General Sessions were held annually at Guysborough in May and October. This meant that the courts were held in the spring ‘when Farmers are most busily employed’ and in the autumn ‘at a time which to Fishermen and others engaged in the Fisheries is the most valuable and important,’ and ‘when these persons can seldom or ever attend without great inconvenience and detriment.’57 For many Nova Scotians, then, jury service paled in importance to providing for one’s family. ‘A Farmer,’ writing in the Novascotian in 1835, eloquently described many of the criticisms of jury duty. The writer began by countering

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the perceived importance of the jury in British constitutional rhetoric. ‘The glorious privilege of Trial by Jury has been so often extolled as the sumum bonum of British individual felicity, by statesmen – patriots – orators – philosophers – historians – demagogues, and though last not least, poets, both native and foreign, that you may, perhaps, be disposed to question my sanity in entering a caveat against such a universal; but at the same time, unexamined axiom.’ The writer said that the discourse of English jury ideology told only part of the story, for the jurors themselves had something to say about jury duty. The writer criticized elites who lauded juries but shirked jury duty, and thus forced the middling classes to leave their businesses and bear an excessive burden. He suggested that ‘the great man, and the rich man, and the nobleman, and some gentlemen may not have been petit jurors,’ but in Halifax every honest person, ‘in the middle walks of life that has a reputation for good morals and industry,’ has been ‘forced against his own will and inclination, to leave his own business, however important, and attend to the affairs of his – neighbor, I was about to say; but this is not always the case, it being oftener the affairs of strangers, with whom not one of the twelve has any concern whatever.’58 The situation was worse for country jurors, said the Farmer. This was because a townsperson, when not immediately engaged as a juror, could attend to some part of his business. The urban juror could also always return to his own home at night. This was not the case for the ‘hapless countryman.’ If he resided far from the courthouse, every day of the whole term, and every hour of it, is completely swallowed up; the morning is occupied in preparation – the roads muddy, and perhaps the day wet – the boat has gone from the wharf just as he arrives; wet roads make damp feet – and damp feet require a glass of grog – and a glass of grog sometimes lays the foundation of another law suit; but this is digression; when the Juror has got to the temple of justice, it being an hour or so past the time required, he is fined, of course.59

The ‘Farmer’ thus captured many of the challenges of jury duty – the long distances some jurors had to travel on poor roads and often in bad weather, the expense of lodging, and the time jury duty took away from farming, fishing, and commerce. Given these impediments, it is perhaps unsurprising that some jurors failed to attend court when summoned. For example, in Barrington Township, Shelburne County, jury absenteeism was common, and, ac-

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A Trying Question

cording to David Murray, ‘the biggest challenge for Shelburne County’s sheriff and magistrates in running a court system on the British model was finding enough qualified jurymen willing to serve.’60 A rare cache of surviving letters from Shelburne County sent by summoned jurors provides a glimpse into some of the reasons jurors offered to avoid jury service. Men pointed to illness, injuries, age (even if the juror was younger than the mandatory cut off for jury duty), and weather as reasons they could not act as jurors. The distance between Barrington and the courts at Shelburne was also clearly a factor. Today, the trip is approximately thirty-six kilometers (twenty-two miles), but a road was not built until the 1830s. Until that time, the journey was long and difficult enough to be avoided unless absolutely necessary.61 To encourage attendance, Nova Scotia judges could fine jurors. The 1796 legislation stipulated that any person summoned for jury duty who failed to appear without a reasonable cause was subject to a fine of up to twenty shillings per day if called for the grand jury, and ten shillings per day if called for the petit jury.62 Special jurors were made liable to the same fines as petit jurors in 1805, and the maximum fine for such jurors was increased in 1825 to twenty shillings.63 While it is uncertain how strictly judges imposed these fines, there is evidence that many jurors were ordered to pay for their delinquency. For example, a summary of fines imposed at the General Sessions for the County of Halifax in 1835 and 1836 reveals that in November 1835 the court fined petit jurors five shillings for each day that they did not appear. So, when Samuel Cupples avoided jury duty for three days, the Court ordered him to pay fifteen shillings.64 Some Nova Scotians had no fear of such fines or the inconvenience of jury service. The early Nova Scotia jury legislation excused from jury duty the colony’s political leadership and leading officials, such as the members of the assembly and council and the provincial treasurer and secretary.65 Men over seventy were also excused. The jury act of 1796 replicated these exceptions.66 In 1838, the maximum age was reduced from seventy to sixty, and the exemption list expanded by including firemen, and the cashiers, tellers, and accountants working at banks.67 The desire of many Nova Scotians to avoid jury service could make contentious changes to the list of exemptions. For example, the 1838 legislation expanding the list of exemptions spurred an acrimonious debate in the legislative council. William Bruce Almon told the legislative council that he did not understand why the 1838 act exempted bank employees from jury duty. He argued that Halifax merchants also

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had better things to do than sit on juries. He said that it was inconvenient for merchants to leave their counting houses, but they were required to serve, and thus ‘the accountants and others about a bank had just about as much right to be called on.’ Almon claimed that there were fourteen employees of the Nova Scotia Bank, ‘every one of whom would be exempt by this act,’ while merchants, whose time was ‘of quite as much importance to them in their private counting houses, would have to attend or pay their fines.’ Another member of the council, William Ousley, was also against the exemption of bank employees, saying that if ‘they cannot attend it will be no great hardship for them to pay their fines.’68 The debate again illustrated the popular distaste for jury service. The inconvenience of jury duty remained a complaint of Nova Scotians throughout the nineteenth century. The particular selection system adopted that required that jurors be drawn from all parts of each district or county ensured that Nova Scotians expressed little loyalty to the ‘palladium of liberty’ when forced to travel long distances over poor roads and often in bad weather. Despite occasional flourishes of traditional jury ideology, those who served as jurors almost always portrayed the task as an unpleasant obligation rather than a noble duty. As will be seen, legislators responded by frequently expressing a concern that any proposed changes to the courts or to the jury system should not heap greater trouble upon jurors. More importantly, the seemingly mundane worries of farmers and merchants over the challenges of jury service motivated legislative efforts to reduce the use of juries. ‘That Privilege … of Having Grand Jurymen from Our Towns’: The Grand Jury and Local Governance Nova Scotians often complained about the difficulties of jury service, but the important role of grand juries in local governance meant that many people also wanted the membership of grand juries to be geographically representative of the county or district. Historians are familiar with the role that grand juries played in the criminal justice system – that is, grand jurors assessed the evidence offered by the prosecutor and determined whether ‘true bills’ should be found against those charged with felonies. A true bill meant that the case proceeded to trial. Just as important, however, was the role of grand juries in local governance. Before the establishment of incorporated municipal government in Halifax in 1841 and in all of Nova Scotia in the 1870s, grand

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A Trying Question

jurors worked with magistrates at the General Sessions to administer county or district affairs. In comparison to many parts of New England, Nova Scotia did not establish local governance institutions in the eighteenth century using democratically elected officials.69 The lieutenant governor chose magistrates across the colony, usually from among the most prominent men of each community. All magistrates were eligible to sit at the General Sessions, though in practice only a minority typically appeared. The lieutenant governor appointed one magistrate to act as the ranking magistrate, the custos rotulorom or president, to preside over the Sessions.70 At the General Sessions, the grand jurors assessed taxes, administered poor relief, granted tavern licenses, and generally supervised the financial affairs of the county or district. They also nominated local government officials, including overseers of the poor and highway surveyors. The magistrates then appointed, or refused to appoint, the grand jury’s nominees.71 Grand juries also reported on the condition of local gaols. These duties gave grand juries in Nova Scotia a more important place in local government than that played by Upper Canada grand jurors, who, even before the diminution of their roles in the municipal reforms acts of the 1840s, did not appoint local officials. In their presentments, grand juries often demonstrated their roles as the inspector of local jails and watchdog over the financial affairs of the county or district. For instance, the grand jury for Halifax County in 1855 reported that it had examined and found correct the accounts of the county treasurer. It then noted that there was 1,300 pounds on deposit at the Bank of British North America for the construction of a jail, but complained that not all of the assessments for the jail had been collected. This was matter of serious concern, leading the grand jury to ‘earnestly call the attention of the Worshipful Court to the nonpayment of the assessments’ for ‘each year the collection of such assessments is neglected, it is becoming a matter of greater difficulty.’ The grand jury also reported that it had visited the jail ‘and found the interior of the building very clean and well kept,’ but that the building itself was ‘in a dilapidated condition.’72 A dispute that began in December 1837 between grand jurors and magistrates in Guysborough demonstrated that grand jurors could act as capable checks against alleged magisterial corruption. The events in Guysborough suggest that some magistrates attempted to marginalize and cajole grand jurors, while at least some jurors fought to retain their role in local government. The dispute began when the grand jury,

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led by its foreman, John Joseph Marshall, accused a local magistrate, William Owen Heffernan, of failing to provide the grand jury with the information it needed to supervise local affairs. An outspoken, brash, and independent individual, Marshall would represent Guysborough in the assembly from 1840 to 1859.73 The Acadian Recorder described him as vehemently opposed to anyone interfering with a subject’s constitutional rights.74 Perhaps because of Marshall’s strong personality, the dispute in Guysborough turned into a very public debate. When the grand jurors entered the jury room at the December 1837 meeting of the General Sessions, they found that no public papers or public accounts had been provided, such as the road returns, records of the proceedings of previous grand juries, or sessions’ book. This prevented the grand jury from checking accounts or gaining knowledge of local matters. Heffernan apparently refused to show this material to the jury and stalled when asked to produce it. After waiting for several days, reported Marshall afterwards, ‘being amused by Mr Heffernan during the time, with now and then a few Road Returns, and some of the public Accounts which he laid before us at different times,’ the jury asked that the General Sessions direct Heffernan to lay before the jury the relevant books and papers. Further, the grand jury threatened not to provide Heffernan compensation for his work as clerk of the peace, and asked that the court order Heffernan to return money he had collected, and possibly kept, for fines and licenses. Marshall claimed that this request was made ‘without the remotest wish or idea of giving offense,’ and yet the president of the General Sessions in Guysborough County, Justice W.Q. Sawers, ‘answered most angrily,’ and ordered the jurors to the jury room, saying ‘go find your own way.’75 Sawers subsequently demanded that the jurors apologize for their allegations against Heffernan.76 The grand jurors refused to be bullied. They wrote a presentment detailing their complaints, and presented it to the General Sessions. In addition to the failure to provide documents, the grand jury charged that Heffernan had issued liquor licenses without the approval of the grand jury and that he had used road funds for other purposes. This presentment displeased the court, which fined the jurors five pounds each for contempt. Marshall then displayed all of his reputed brashness by publishing a series of letters in the Novascotian. He argued that there was no justification for the fines. Marshall asserted that if there was ‘such extraordinary power given to Judges over the consciences of Jurors, why swear them to act honestly, fearlessly, and independently; again

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A Trying Question

I would ask, why not make such power on the part of Judges more generally known. It would prevent plain honest farmers, who neither know nor wish to be merely acquainted with law, falling into error.’77 Heffernan responded to Marshall in the Novascotian. He criticized Marshall for making allegations against him, and suggested that Marshall’s actions were politically motivated, since Heffernan had supported an opponent of Marshall in a recent election.78 Marshall petitioned the assembly about the fines, leading the assembly to form a committee to examine the incident. In its report, the committee emphasized the importance of the grand jury’s role in local governance. Although the committee believed that the grand jury may have been the first to overstep the bounds of strict decorum, the committee felt it was ‘highly necessary’ for the ‘impartial, free, and unflinching discharge of the duties frequently devolving upon Grand Juries’ that they should be under little fear of legal penalties ‘for the faithful and independent discharge of those duties.’79 The assembly subsequently drafted resolutions asking the lieutenant governor to remit the fines, for it felt it could ‘never recognize the right of any Court to fine a Grand Jury for a free and respectful expression of their opinions.’80 The lieutenant governor had the fines remitted.81 The dispute between the grand jurors and the magistrates in Guysborough demonstrated that at least some grand jurors strongly defended their privileges in administering local government. They were perceived, and often saw themselves, as counterbalances to the magistrates. The important roles of grand juries meant that Nova Scotians tended to express concern over the composition of grand juries. This concern was accentuated by the belief (inherited from England) that membership on the grand jury was one of the signs of a man’s importance in the community.82 The jury act of 1796, however, did not ensure that grand jurors came from all parts of a county or district. The legislation required the sheriffs to return to the county prothonotaries or clerks a list of all persons qualified to serve as jurors once a year. The prothonotaries or clerks were then to write the names of the jurors on ballots and place them in a box. The grand jury for the county for the year was then drawn and summoned. The geographic make-up of the jury was thus left up to chance.83 This changed in 1833 after a petition from Londonderry and Economy asked that the law be altered to ensure that a proportionate number of grand jurors were drawn from each township. The petitioners complained that they were under an ‘obvious disadvantage’ because

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they were ‘at times deprived of that privilege which all British subjects ought to enjoy (that is) of having Grand jurymen from our towns.’84 Their concern was that important decisions could be made by a grand jury lacking a member who could represent the interests of the inhabitants of Londonderry and Economy. The legislature responded with an act that altered the procedures to select grand jurors in Nova Scotia.85 The act required the sheriff of each county or district to make up lists of qualified persons. The sheriffs then returned these lists to the General Sessions, which determined how many jurors from each settlement or township would serve. The act also eliminated the role of prothonotaries. The sheriff was to keep the names of the jurors for each township or settlement in a separate box, and then draw the appropriate number from each box as ordered by the General Sessions.86 The act, then, made grand juries in Nova Scotia more geographically representative, but also increased the responsibility of sheriffs in jury selection. This change in the role of sheriffs proved contentious, in part because sheriffs were almost impossible to remove, even if there were popular concerns about their conduct or competency. Although sheriffs received annual appointments, they often held their positions for very long periods before responsible government.87 Some Nova Scotians therefore expressed concern over the legislature’s decision to increase the role of sheriffs in grand jury selection. Grievances soon emerged regarding the greater power exercised by the sheriffs. Between 1834 and 1837, the assembly received three petitions protesting the new grand jury selection scheme using the language of the British constitution to argue that checks were needed on the discretion of sheriffs. Petitioners did not, however, demand that Nova Scotia copy exactly the procedures of English grand jury selection. Each petition contained an alternative scheme for grand jury selection, but the proposals diverged substantially, suggesting that acceptable procedures were negotiable so long as they reduced the possibility of foul play. In the first petition, fifty-nine inhabitants of Truro carefully outlined their complaints about the 1833 jury act. They noted that the 1833 act authorized the sheriff to make out the jury lists of such persons ‘as in his opinion’ were qualified. Further, the sheriff also filled and kept the jury boxes and drew the jurors. These facts made it evident that he had the ‘sole power of forming the Grand Inquest of the County and (if he chose) of selecting a Jury to serve purposes of his own or in which he feels an interest without being subject to any control whatever.’ The

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A Trying Question

problem for the residents of Truro was that ‘such a power vested in any one man is inconsistent with the principles of the noble Constitution,’ which required that ‘the balance of power’ be ‘nicely poised.’88 In making this claim, the petitioners drew from the English idea of a ‘mixed’ or ‘balanced’ constitution that provided a system of checks and balances to prevent the supposed natural tendency of societies to devolve into tyranny, oligarchy, or anarchy.89 The petitioners then took the opportunity to offer a solution to the problem, asking that the duty of jury selection be divided between the sheriff and some other official, as under the 1796 act. The second petition came from Onslow (just outside Truro) in 1834. Like their Truro neighbours, the Onslow petitioners expressed concern that the 1833 act allowed the sheriffs to make up the lists and keep the ballot boxes. It thus placed ‘the whole power in the hands of the sheriffs making them the judges of the qualifications, keepers of the boxes and drawer of the ballots without any of those salutary checks which are necessary to secure impartiality.’90 The residents of Onslow also offered a potential legislative solution. While the Truro petition had requested a return to a system similar to that used under the 1796 jury act, the Onslow petitioners advocated something quite different. They suggested that several magistrates in each township be required to meet each year to prepare a list of persons qualified to serve as grand jurors. These lists would then be handed to the clerks of the courts, who would place the names on ballots, and put them into a box having separate divisions for each township from which grand jurors would be drawn.91 Residents of eastern Annapolis County sent a third petition demanding that the grand jury act be amended. Their proposal again emphasized the importance many people placed on the geographic representativeness of grand juries. They suggested that the annual township meetings should nominate a number of grand jurors. The General Sessions would review the lists of nominees and select the number required. The petitioners said that each township should receive its ‘proportion of Grand jurors, to attend to its ordinary wants and general business.’92 The goal of the petition was thus to give each township a fair representation of grand jurors. These complaints had their desired effect. As will be shown in chapter 3, in 1838 Nova Scotia reformed grand jury selection, and adopted the proposal suggested by the Onslow petitioners for the creation of committees that would identify men eligible for grand jury service. The important role of grand juries in local governance in Nova Scotia

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is often inadequately noted by historians.93 The ferocity of the Marshall–Heffernan encounter and the debates over the appropriate methods of choosing grand jurors reflects the view held by many Nova Scotians that grand juries had to hold magistrates accountable, had to be geographically representative of the county or district, and could not be selected by any one official. While individuals might not themselves want to serve on the grand jury, they believed that someone in their neighbourhood should effectively represent their community’s interests. Court Reform and the Declining Use of Juries The complaints of inhabitants over jury service could be interpreted as emphasizing the importance of juries to most Nova Scotians – that is, they supported juries, but simply wanted the duty to be more convenient. This thesis is undermined, however, by several efforts at court reform, especially legislation in 1841 that reduced the use of juries at the General Sessions. Jurors’ complaints led to a wide variety of proposed and actual reforms in Nova Scotia. There were demands for new counties, or that the lines of existing counties be changed, to make jury duty more palatable.94 Practical concerns about the travel of jurors and others who attended court also led to the creation of new sittings of courts. For example, in 1837 inhabitants of the Township of St Mary’s in Guysborough County argued that grand jurors faced high expenses and great inconvenience because of the distance they lived from the town of Guysborough, where the courts were held.95 The assembly discussed the possibility of making St Mary’s a distinct district in 1838, and in 1840 legislation established a General Sessions in St Mary’s (at the village of Sherbrooke).96 Another way to alleviate complaints about jury service was to change the dates of the courts to more convenient times of the year.97 In 1838, the legislature also sought to lessen the burden of frequent jury service by stipulating that no person had to serve as a juror more than once every three years.98 Records from several courts indicate that this provision ensured that the membership on grand juries changed every year.99 Another solution to bothersome jury duty was to have courts dispense quick justice without juries. A desire for cheap and convenient justice administered without juries led many petitioners to request new summary courts or the more frequent sitting of such existing courts

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A Trying Question

to settle minor civil disputes. In 1817, the legislature allowed for the creation of three-person Commissioners’ Courts, which would meet monthly and adjudicate small civil claims of less than ten pounds. Several counties established such courts, but the authorizing statute expired in the early 1820s and Commissioners’ Courts subsequently disappeared, except in Halifax, where one continued until 1841.100 In 1837, however, Commissioners’ Courts were established in Cape Breton.101 Petitioners from Sydney County (today consisting of Guysborough and Antigonish counties) had in mind a similar arrangement in asking for the establishment of ‘rotation courts’ in 1839.102 They asked for the establishment of a court in the county, which would sit six times per year and determine all matters tried by the justices of the peace.103 While the government did not create rotation courts, it did provide extensive summary jurisdictions for the courts of Nova Scotia. Magistrates could summarily try suits of five pounds from 1807, and the Commissioners’ Courts, when and where they existed, could hear most civil disputes of less than ten pounds.104 The summary jurisdictions of the Supreme Court and Common Pleas were increased to twenty pounds in 1807 and, briefly, to fifty pounds in 1832.105 By 1845, the Supreme Court could hear summarily all cases of debt between five and twenty pounds, though either party could request a jury trial.106 In creating extensive summary jurisdictions, Nova Scotia provided that parties could request a three-person jury in civil disputes between five and ten pounds at the General Sessions, Common Pleas, and Supreme Court.107 This was not a unique Nova Scotian invention; in England, reformers in the early and mid-nineteenth century advocated using small juries in local courts to hear disputes concerning minor sums of money.108 Advocates of this idea included Jeremy Bentham, whose views on small juries migrated to Nova Scotia. In 1830, the Colonial Advocate published a long article drawn from a work by Bentham, in which the author outlined Bentham’s ideas for ensuring that justice was ‘no longer sold, delayed or denied.’ Among Bentham’s proposals was one which stated that a judge could order, or either party could demand, that a case be tried by a jury, ‘in which case the jurors may be three, and shall not exceed five in number.’109 Three-person juries remained part of the law of Nova Scotia until at least 1864, but there is little evidence that anyone asked for them.110 Instead, litigants seem to have preferred that these minor cases be dispensed with as quickly as possible without juries. The most important response to the complaints over jury duty occurred in 1841, when Nova Scotia abolished the Inferior Court of Common Pleas. Barry Cahill and Jim Phillips argue that the elimination of

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the Common Pleas stemmed primarily from concerns about the cost of the judiciary,111 but the desire to save the time and effort of jurors was another strong motivation. Prior to 1841, the government received a number of petitions asking for the elimination of the Common Pleas. For example, petitioners from Cumberland County submitted that the July term of the Common Pleas could be ‘altogether abolished or at least the attendance of the Grand and Petit Jurors might be dispensed with at that term.’112 The interaction of agriculture and the justice system was a key consideration for many petitioners. For example, farmers from Pictou noted the short growing season in Nova Scotia and argued that ‘the two sittings of the Inferior Court might and ought to be dispensed with altogether,’ since the two sittings of the Supreme Court sufficiently met the area’s needs. The petitioners made sure to note that the times for holding the Supreme Court (January and July) ‘could be best spared by the Agricultural population at these seasons.’113 The many petitions concerning the Common Pleas led the assembly to devote considerable attention to the court system over a number of years. In these debates, jury service was always a key consideration. For instance, in an 1829 debate over the continued existence of the Common Pleas, Beamish Murdoch introduced resolutions suggesting that the legislature abolish the Common Pleas, except in Cape Breton, and increase the number of Supreme Court circuits. One motivation for this measure was cost – Murdoch estimated that the colony paid 1,350 pounds annually for the Common Pleas. Other members of the assembly emphasized that more courts required more frequent jury service. For example, in arguing against increasing the number of Supreme Court sittings, merchant John Alexander Barry related an incident at the Supreme Court in Shelburne in 1827 in which a jury was packed into a tiny room that measured ten feet by six feet on one of hottest days of the year to deliberate a case. The jurors were, as a result, ‘glad almost to come to any decision rather than be suffocated.’ He thus wished ‘his constituents to be excused from an increase of their sittings.’ William Henry Roach pointed out that getting rid of the Common Pleas would not only save the salaries of the judges, ‘but would save time and expenses to those now obliged to act on juries.’114 The difficulties of jury service also influenced Alexander Stewart’s decision to introduce a bill in 1834 to dispense with the attendance of grand and petit jurors at the June term of the Cumberland Common Pleas. Stewart said that his object in introducing the bill (which did not ultimately pass) was to relieve the jurors from being brought from their homes so often.115 The assembly considered the issue again in 1838 when legislators

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A Trying Question

introduced bills to abolish or limit the sittings of the Common Pleas in particular counties.116 The continued interest in altering the justice system led to the creation of a select committee to examine the abolition or modification of the Common Pleas, the appropriate number of judges in the colony, and the most convenient dates and locations for holding the various courts in the counties. A majority of the committee agreed on the desirability of abolishing the Common Pleas. The committee also discussed the General Sessions; one proposed solution to the ‘too many courts’ complaint was to hold the General Sessions and the Supreme Court at roughly the same time, thus allowing the magistrates and jurors to meet less frequently.117 The committee contacted Chief Justice Brenton Halliburton and Supreme Court justices William Hill and William Blowers Bliss for their opinions on this idea, but the justices were unreceptive to the proposal, in part because they believed that decreasing the inconvenience of jurors could better be accomplished by reducing the number of courts. Halliburton believed that ‘the people of the Country are too frequently called together, and have often little or nothing to do when they are assembled.’ ‘This evil may be remedied either by a judicious diminution of the sittings of the Courts,’ he continued, or by making it unnecessary to call together grand and petit juries more than twice a year, unless there were criminal charges or civil issues for trial that required a jury.118 Bliss also addressed the inconvenience to jurors in discouraging the assembly from forcing the General Sessions to work at the same time as the Supreme Court. He felt that the inconvenience ‘under which the Country is said to labour’ could better be lessened by ‘dispensing with the attendance of Grand Jurors at one sitting of the Sessions and one of the Supreme Court in each County.’119 The conclusions of the judges offer valuable insights. Their willingness to reduce the number of court sittings stemmed from their acute awareness of the difficulty of travel and the negative attitude of Nova Scotians to jury duty. The eventual elimination of the Common Pleas in 1841 was thus partly due to the challenges of jury service. The act’s preamble emphasized the desire to rationalize the courts and to limit the burden on jurors. It noted that the Supreme Court and the Common Pleas had nearly concurrent civil jurisdictions. This led to ‘holding Courts in each County oftener than is necessary, whereby great loss of time is occasioned to the people.’120 It is important to note that, in addition to abolishing the Common Pleas, the 1841 act swept away many of the duties of jurors in three other notable ways. First, petit juries were eliminated

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at the General Sessions, except in Halifax County. Second, grand juries were not to be summoned more than once a year at any General Sessions for any county other than Halifax. Third, the number of terms of the Supreme Court in Halifax was reduced from four to three, and jurors were to be summoned for only two of these terms.121 The act therefore ensured that the farmers, fishers, and merchants living in most of the colony only had to serve as trial jurors at the sittings of the Supreme Court. Outside of Halifax, the General Sessions retained its role in local government, but became a court of almost exclusive summary jurisdiction. In addition, grand jurors usually had to meet no more than three times per year (once at the General Sessions, and twice at the Supreme Court). The use of juries, by these measures, was substantially reduced throughout Nova Scotia. Given the distaste for jury service, there was no popular backlash against the 1841 reform.122 Conclusion In considering the shape and content of nineteenth-century Nova Scotian legal culture, it is important to remember that for many Nova Scotians the jury was both a cherished cornerstone of the British constitution and a bothersome duty that fell upon the farmers, fishers, and merchants of the colony. The constitutional rhetoric concerning the value of the jury stemmed, in large part, from its place as the defender of those facing politically motivated charges. In such great disputes between the Crown and its opponents, juries became famous or infamous based upon their willingness to stand up to perceived tyranny. On a daily basis, however, in cases lacking such political intrigue, trial juries in communities such as Shelburne, Horton, or Sydney did not hear disputes concerning English liberties. Rather, they found verdicts in civil cases concerning debts or criminal cases of assault. These were important issues, to be sure, but many people undoubtedly smiled when they saw the local sheriff walk pass their door and deliver a juror summons to their neighbour. After all, who had the time or the money to act as a juror? The importance of juror attitudes to the decline of the jury undoubtedly varied depending upon the particular jury qualifications, geographic challenges, and selection procedures in every jurisdiction employing juries. In eighteenth-century England, for example, the English gentry, with more time and money than the average Nova Scotian farmer, served as jurors.123 For many people in Nova Scotia, however, time and

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A Trying Question

money were too precious to spend on jury service, particularly when the procedures for jury selection adopted in Nova Scotia made service especially onerous. The practical concerns of Nova Scotians chipped away at the importance of the jury in the colony’s legal culture, and the legislature passed acts that reduced the frequency of jury service to placate Nova Scotians who were eligible for jury duty but reluctant to serve. Complaints of lengthy travel and time away from home for jury duty contributed to the elimination of the Inferior Court of Common Pleas, the establishment of the rule that jurors would serve no more than once every three years, and the decision to end the formation of petit juries at the General Sessions outside of Halifax.

2 The Jury System and Attitudes towards Jury Service in Upper Canada

Upper Canadians voiced many of the same concerns about jury service heard in Nova Scotia. Such complaints would ultimately play an important role in the nineteenth-century decline of the jury in Upper Canada. Prior to 1850, however, Upper Canadians did not express their distaste with jury service with the same intensity or frequency as Nova Scotians. This difference resulted from the distinctions between the Upper Canadian methods for selecting jurors and the procedures in Nova Scotia, as well as the particular characteristics of Upper Canada’s geography, settlement patterns, and transportation network. The response to the inconvenience experienced by jurors was also different in Upper Canada. Rather than reduce the use of juries, Upper Canadians advocated paying jurors for their time and trouble to make jury service more acceptable. Upper Canada and the Introduction of Juries Like Nova Scotia, Upper Canada emerged out of a previously Frenchcontrolled territory. The 1763 Treaty of Paris that ended the Seven Years’ War required that France cede to Britain most of its territory in northern North America. This included New France, the boundaries of which extended from the shores of the St Lawrence into the heartland of North America. Upper Canada came into existence following an influx of English-speaking Loyalists into the western areas

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A Trying Question

of New France. The Constitutional Act of 1791 divided New France into French-speaking Lower Canada and Loyalist Upper Canada. A governor appointed by the British led the colony. He was advised by an appointed executive council. A legislative assembly was first elected in 1792, though its power was limited by the governor and the executive council, as well as by an upper legislative house, the appointed legislative council. Criticisms emerged that an oligarchy, often referred to the ‘Family Compact,’ improperly used its influence. Discontent with the Family Compact led to the 1837 rebellion, then the granting of responsible government in 1849. Lower and Upper Canada combined to form the United Province of Canada in 1841. Tensions between the two halves of the colony permeated the period of unification. The marriage was finally dissolved in 1867 when Ontario joined Nova Scotia, Quebec, and New Brunswick in forming Canada.1 Like Nova Scotia, various waves of immigrants came to Upper Canada, including Americans looking for land, English, Scots, Germans, Blacks, and Irish. Inhabitants to the colony benefitted from the good farm land available – land generally far superior to the rocky soil that distinguishes much of Nova Scotia, with the notable exception of the Annapolis Valley. As the colony’s population increased, so did the administrative complexity of Upper Canada. The new colony was divided into administrative ‘districts.’ There were initially four districts (which in 1792 were named Western, Eastern, Midland, and Home), but by 1842 there were twenty. In 1800, the colony created counties within each district. Counties, in turn, were divided into townships. The desire of the first lieutenant governor, John Graves Simcoe, to establish a truly ‘English’ colony helped shape the early legal system of Upper Canada. Upper Canada had inherited the judicial system of Quebec, but the colony soon established a court structure more in line with English practice. In 1794, it created a Court of King’s Bench as the superior court possessing criminal and civil jurisdiction, and District Courts that could hear actions of contract valued between forty shillings and fifteen pounds. Finally, the Court of Quarter Sessions fulfilled the same functions as the General Sessions in Nova Scotia. Presided over by magistrates, the Quarter Sessions had administrative and judicial functions.2 In 1849, Upper Canada established Recorder’s Courts in Toronto, Hamilton, Ottawa, Kingston, and London. The Recorder’s Court served the same judicial purpose as the Quarter Sessions, which it replaced in these cities.3 The King’s Bench, District Court, Quarter

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Sessions, and Recorder’s Court all employed juries. Two summary courts also existed. Below the District Courts were Courts of Requests, established in 1792, which could settle summarily small debts under forty shillings. Each of Upper Canada’s four initial districts also had a Surrogate Court to grant letters of probate and administer the estates of the dead. If the sums in question were large, a single Court of Probate for the colony had jurisdiction. The legislature’s decision to make An Act to Establish Trial by Jury one of its first statutes reflected the importance of the jury to Upper Canada’s early legal culture. The legislation asserted trial by jury was ‘one of the chief benefits to be attained by a free constitution.’ As for the selection of jurors, it was simply stated that jurors would be ‘summoned and taken conformably to the law and custom of England.’4 Jury selection practices changed in England over the course of the eighteenth century, so an assertion that juries be taken conformably with the law of England in 1792 had a very specific meaning. In late-eighteenth-century England, constables identified eligible jurors, annually making lists of the men of the right age and property qualifications. These lists were posted on church doors for three weeks to permit people to notice omissions or errors. After a local justice certified the lists, the constables gave the lists to the clerk of the peace who entered the names collected into a jurors’ book. The clerk created a duplicate of the jurors’ book and sent it to the sheriff who used his discretion to select a panel of jurors.5 Juries at the assizes were then balloted from this panel. This process of identifying jurors was repeated each year, and Parliament provided for the imposition of penalties if any part of this process was done negligently.6 In 1825, Robert Peel navigated successfully through Parliament a new jury bill. Peel’s act shifted the responsibility for identifying eligible jurors from the constables, whom it was often said could not read or write, to churchwardens and local overseers of every parish or township in each county.7 This fairly complex system of jury selection did not suit a new colony lacking established institutions, and thus when Upper Canada passed a new jury act in 1794, it outlined a similar but simpler process for selecting petit juries.8 Each year the clerk of the peace from each district of the province made up a list of potential jurors, and delivered this list to the local sheriff. All ‘householders’ who appeared on the assessment rolls were eligible for jury duty – there was thus no particular property cut-off for jury duty, which extended to a substantial proportion of the

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A Trying Question

colony’s males. The statute stipulated that no one was to act as a juror at the King’s Bench, Quarter Sessions, or District Court who had served within the previous year, a provision designed to spread the burden of jury service. The only other exemption from jury duty was given to those over sixty years of age.9 After the clerk of the peace completed the list, the sheriff used his discretion to select thirty-six to forty-eight names to form a petit jury panel. These names were then written on ballots, and at trial the marshal drew twelve names.10 As in Nova Scotia and England, litigants in Upper Canada also had the right to challenge jurors.11 The 1794 legislation included penalties for the clerks, sheriffs, and other officials if they failed to complete their statutory duties.12 Special juries were also available to parties in Upper Canada who wanted a jury composed of men of higher social rank than the men on petit juries. In 1808, a new special jury act gave any prosecutor or defendant in misdemeanours, and also any party in a civil action, the right to have a special jury struck at King’s Bench.13 When a party requested a special jury, the clerk of the peace in the district delivered to the sheriff a list of men assessed for the sum of 200 or more pounds. The names of the eligible jurors were placed in a box and forty names drawn. Each party then struck out twelve names, and the sixteen remaining jurors were summoned to appear at the next assizes.14 The early jury legislation of Upper Canada did not dictate the process for forming grand juries. The sheriff simply selected twenty-four grand jurors by considering potential jurors’ property, character, intelligence, and occupation. In practice, grand jurors at King’s Bench were usually magistrates or militia officers, while at Quarter Sessions the sheriff selected the grand jury from the more prominent householders of the district.15 There were important differences between the processes for choosing grand jurors in Upper Canada and Nova Scotia. Recall that in Nova Scotia a single grand jury was selected by ballot each year for all of the courts in a given county or district. In comparison, in Upper Canada a new grand jury formed for every court session. As well, while magistrates often sat on the grand juries of the King’s Bench in Upper Canada, in Nova Scotia the balloting process for choosing grand juries limited the role of magistrates, and by 1848 Nova Scotia would exempt magistrates from serving on juries. The greatest similarity between the two jurisdictions was that in Upper Canada until 1850, and in Nova Scotia between 1833 and 1838, the sheriff administered the selection of the grand jury. In both colonies, critics would complain vociferously about sheriffs possessing too great a role in forming juries.

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Attitudes to Jury Service in Upper Canada A diversity of opinion on the value of juries existed in Upper Canada before 1850, a diversity that appeared in commentary about juries in legislative debates, newspapers, petitions, and published tracts and journals. While the colony’s farmers, artisans, and merchants often found jury duty unpalatable, English jury ideology held a tighter grasp on the minds of many Upper Canadians than it did on the residents of Nova Scotia. This stemmed from Simcoe’s attempt to nurture a truly ‘English’ colony, the less onerous geographic challenges to jury service in Upper Canada versus Nova Scotia, Upper Canada’s relatively homogeneous ethnic population resulting from the substantial influx of British and loyalist immigrants, and Upper Canada’s jury selection procedures, which often ensured the selection of jurors who lived relatively close to the courts. In the early to mid-nineteenth century, elite Upper Canadians often celebrated the perceived ability of juries to protect against government tyranny. For example, one of the first volumes of verse published in Upper Canada was a ‘rhyming defence of the jury system’16 written by ‘A Friend to his Species’ and published in Kingston in 1822. The writer emphasized the role of the jury in standing up to oppression in British constitutional and political history: A constitution grand have we, That’s guarded by a chosen king, Of gallant stock, as e’er could be, Or ever did from Adam spring. But it hath still another guard. Of mighty import to it’s [sic] safety, Whose business is to watch and ward, ’Gainst machinations of the crafty, ’Tis jurymen, of whom I speak, That phalanx strong round liberty; As long as they do keep awake, Our constitution safe shall be.17

Charles Fothergill, a magistrate well-versed in British ideas of the rule of law who served as the King’s printer in Upper Canada, provided

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another illustration of the faith in juries when he used his press to republish a John Hawles’ 1680 tract, A Dialogue between a Barrister at Law and a Juryman. Hawles’ work was a radical statement of the jury’s right to decide whether the law an accused faced was just. In prefacing the work, Fothergill said that trial by jury was ‘the most glorious institution of our country. – It is that by which our lives, our liberties, and property are secured.’ Fothergill did sense, however, that not all Upper Canadians shared this view. ‘Yet what avails this great right,’ he asked, ‘if you continue to slumber in ignorance of its true nature and power?’ He implored Upper Canadians to read the tract, hoping that it would ‘have its place next to your Bible,’ and be ‘found in every cottage in the country.’18 Judges also often expressed faith in juries. Like many of his fellow judges, William Campbell of the King’s Bench exhibited a strong belief in the place of the jury in the British constitution. The British constitution had acquired ‘a state of perfection unrivalled in the annals of the world,’ and trial by jury and Habeas Corpus were its main pillars. Grand juries, he suggested, were ‘the most Constitutional and effectual means of protection against the efforts of public oppression or private malice.’19 Future leader of the 1837 rebellion in Upper Canada, William Lyon Mackenzie, also lauded the jury system in addressing the Toronto Mayor’s Court in July 1834. York was incorporated as the city of Toronto in 1834. Mackenzie won a seat as an alderman and his fellow councillors appointed him mayor. In his new position, Mackenzie acted as the city’s chief magistrate and presided over the Mayor’s Court, even though he had no legal training.20 In his first charge to a grand jury in July 1834, he offered an extended discussion of the jury’s valuable role in preventing oppression. Mackenzie said that it was ‘one of the most important situations that can be filled by the Citizens of a free country.’ He noted that jury duty was ‘in many respects onerous and unpleasant,’ but asked that jurors remember that ‘the services you thus perform are part of the Taxes which a free people pay for the privileges they enjoy.’21 Like Blackstone, Mackenzie believed in the constitutional value of the jury and recognized the inconvenience of jury duty. The Toronto Globe added its voice to the defenders of juries. In 1845, it listed trial by jury as one of the key institutions which the legislature could not destroy: ‘We ask, could Parliament take away the right of Petition, the Trial by Jury, or the Liberty of the Press. We say they cannot constitutionally do so,’ for ‘it would be a breach of the social compact.’22 Later, in 1856, the Globe said that trial by jury held a unique

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place in British identity. It listed habeas corpus, the Magna Carta, and trial by jury as key elements of being British.23 While the celebratory view of juries drawn from English jury ideology was often voiced by the colony’s leadership, many inhabitants eligible for jury service complained that it was expensive, time-consuming, and inconvenient. Petit jurors summoned for the trial of state prisoners in Niagara in 1838, for instance, complained of their expenses and the length of time they were away from their farms, and thus requested remuneration.24 Many Upper Canadians, like Nova Scotians, also expressed their displeasure when the location of courthouses made jury service inconvenient. Petitioners from the County of Norfolk told the assembly of the ‘severe and unmerited injury’ caused by the decision to move the courthouse. The petitioners claimed that ‘as jurors, witnesses, and suitors, we are now compelled to purchase justice at a price which few are able and all are unwilling to pay.’25 In 1835, 168 petitioners from the western parts of Midland District and the eastern part of the District of Newcastle asked that a new district be established, for, among other reasons, the convenience of jurors.26 Eighty-two petitioners from the Township of Louth in the Niagara District told the assembly in 1835 of the ‘great inconvenience and loss of time’ experienced ‘in serving as jurors and attending the District Court’ because of ‘the distance that a great part of the inhabitants have to travel.’27 Living in a colony with an agriculture-based economy,28 Upper Canadian jurors wanted to ensure that the timing of courts did not interfere with farming, and, as a result, changes to the dates of courts for reasons of convenience were relatively common.29 Such complaints existed in Upper Canada despite the fact that travel for jury duty was somewhat less onerous than in Nova Scotia. Jury service was more palatable, in part, because Upper Canada had a better transportation system, thus making travel less challenging for jurors. Upper Canada’s geology and geography made road building easier, fear of American invasion resulted in extensive road construction, and statute labour and private companies supplemented military road building.30 Even more importantly, the fact that sheriffs had the discretion to select jurors living close to the courts mitigated the complaints about travel for jury duty. As Peter Perry, a member of the assembly, noted in 1835, ‘it is the Sheriff’s interest to take the jurors from one neighbourhood, to lessen the expense of summoning them.’31 This resulted in jury panels that were often unrepresentative of the entire district or county, in contrast to Nova Scotia, where a balloting process meant that jurors

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A Trying Question

were drawn from across each county or district. For example, at each court session in Kent County between 1846 and 1850 most of the jurors came from two or three places, though the particular places changed. The most extreme example of this uneven representation was at the January 1850 Quarter Sessions. Of the twenty-four grand jurors called, eleven came from Windsor and thirteen from Sandwich. More amazingly, all of the forty-eight petit jurors hailed from Sandwich.32 As will be shown in chapter 4, such jury panels could lead to complaints that juries were, at best, geographically unrepresentative, or, at worst, intentionally packed. While this practice raised concerns over jury packing, it helped ensure that jurors were infrequently called from the most distant reaches of a county. The ability of the sheriff to select men he believed would likely attend court, in conjunction with the fines Upper Canada imposed on jurors who failed to appear and a small amount of compensation given to some jurors, helped prevent juror absenteeism. The 1794 jury act imposed fines of between twenty shillings and three pounds, unless the juror provided some reasonable cause for being absent.33 The colony also provided for payments to some jurors. The 1794 statute dictated that every juror should receive one shilling from the plaintiff in civil disputes, which was then accounted for when costs were charged to the parties.34 This was slightly increased to one shilling, three pence three years later.35 Special jurors received five shillings per case under 1808 legislation.36 Some inhabitants, of course, still avoided jury duty. The Perth Courier captured the reluctance of people to serve when it told a humorous story in which a sheriff had to find additional men to fill out a jury. The sheriff ran into the street and accosted a man who pretended to be deaf to avoid jury service.37 The records for Kent County in 1846 demonstrate that an average of 6.8 of forty-eight summoned petit jurors were absent at Quarter Sessions, District Court, or assizes. In this small sample, the proportion of grand jurors who failed to attend was similar – 2.8 out of twenty-three summoned.38 Upper Canadian jury legislation expressly excluded potential jurors because of their age, and some men cited this reason to avoid jury service.39 Inhabitants also offered other reasons why they were unable to act as jurors or why fines for their absences should be remitted. Some asked to be excused because of sickness, while at the Toronto Mayor’s Court in September 1834 a number of the jurors wanted to avoid attending court because of a cholera outbreak.40 One petitioner asked for

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the remission of a three-pound fine on the ground that he was working on a raft on the way to Quebec when the court sat.41 William Gustavus Strong, fined five pounds for missing grand jury duty, petitioned the Governor General on the ground that he had been in Montreal on important mercantile business. In considering this request, Attorney General John A. Macdonald admitted that jury service was inconvenient, but noted that if ‘applications like the present were granted, it would be difficult if not impossible to ensure the attendance of jurors at the several courts of justice.’42 The scattered evidence concerning attitudes to juries suggests that Upper Canadians generally held juries in higher esteem than did most Nova Scotians. The colony’s selection procedures, combined with a less rugged geography and better roads, made jury duty less onerous than in Nova Scotia. Despite this, absenteeism was not unknown, and farmers often resented being taken from their farms for even a short period. The inconvenience was substantial enough that legislators sought out solutions. Rather than adopt Nova Scotia’s – the abolition of a lower court and limitations on calling jurors – some Upper Canadian legislators sought to induce inhabitants to jury service by increasing juror pay, as will be shown later in this chapter. The Grand Jury and Local Governance Upper Canadians expressed slightly less annoyance at the challenges of jury duty than did Nova Scotians. As well, because the grand jury played a smaller role in the governance of Upper Canada in the nineteenth century, fewer inhabitants of Upper Canada than of Nova Scotia expressed intense concern over the body’s membership. In Nova Scotia, magistrates and grand juries appointed all local officers. In Upper Canada before 1841, the grand jurors and magistrates in sessions levied local taxes, oversaw public institutions like the jail, and took care of roads and bridges, but played no role in the appointment of officers such as assessors, collectors, and overseers. Instead, the annual township meetings elected local officials. During the 1840s, there were important reforms to municipal government that reduced the role of grand juries in the local governance of Upper Canada. Governor General Charles Poulett Thomson (later Lord Sydenham) encouraged administrative reforms in the colony, and in 1841 the government passed the District Councils Act.43 This established councils composed of elected property holders that took over

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much of the administrative work of the Quarter Sessions. A warden appointed by the governor oversaw the council, and selected a number of important district officers, such as the district surveyor. The governor chose the district treasurers and clerks from a shortlist created by the local council. The councils had several benefits in Thomson’s eyes. First, they ensured that purely local matters did not consume the time of the assembly, which was poorly equipped to evaluate the needs of local areas and was prone to getting mired in considerations of local patronage. Second, district councils would help train aspiring politicians in representative government. Third, the councils would serve as more effective instruments for carrying out the policies of the governor and his council. Municipal reform thus constituted an important means of centralizing state power in Upper Canada. In 1849, the Municipal Corporations Act furthered these goals by creating a more complete system of local government for both rural and urban areas.44 These legislative efforts to centralize authority in Upper Canada had a direct bearing on the traditional role of grand juries. Grand juries retained only two roles after these reforms. First, they inspected public institutions and reported on them in their presentments, although there was no guarantee anyone would take notice of their conclusions. Second, they continued, for the time being, to evaluate criminal charges to determine whether cases should be heard by a petit jury.45 Because Upper Canadian grand juries had fewer responsibilities in local government, there was less concern than in Nova Scotia over ensuring that grand juries were geographically representative. Municipal reforms also proved important for future jury legislation, as the creation of a colony-wide system of local administration ensured the smoother implementation of central government policies, including the new jury selection procedures that would be created in 1850. In Nova Scotia, in comparison, attempts in the 1850s to institute incorporated municipal government beyond Halifax would fail, and the state would rely on older tools – magistrates and sheriffs – to implement jury legislation. Responding to Complaints about Jury Service: Juror Pay The aggravation of jury service meant that the assembly was asked repeatedly to consider bills that would provide jurors adequate compensation. Several such bills were introduced in the 1830s, many by Ogle Robert Gowan. Born in Ireland in 1803, Gowan was the son of an important Wexford Orangeman. Gowan himself became an Orangeman

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in 1818, then moved to Upper Canada in 1829, settling in Leeds County where he emerged as a substantial farmer and the first Canadian grand master of the Grand Orange Lodge of British North America. Politics was his real interest, however. In 1834 and 1835, he won a seat in the assembly from Leeds County, though both times his election victories were declared void because of Orange violence at the polls. In the summer of 1836, he finally took a seat.46 Gowan’s residence in a rural part of Upper Canada and his agricultural pursuits may have motivated him to pursue more compensation for jurors. An act of 1797 provided only fifteen pence for each juror who served in civil cases.47 Gowan was likely aware of the difficulties of jury service for farmers, and that fifteen pence was wholly inadequate compensation for travel, board, and time lost from crops during certain seasons. Gowan made several attempts in the legislature to have jurors compensated fairly. Before the voiding of his election victory in 1835, Gowan announced his intention to introduce a bill in the assembly to provide jurors with fair compensation.48 In December 1837, Gowan introduced such a bill, but it failed to become law.49 In 1839, Gowan declared his intention to try again, maintaining that the jurors who left their business ought to be indemnified.50 He subsequently expressed his desire to see a select committee appointed to consider whether jurors should receive more pay.51 Such measures had some popular support. For example, in 1841 jurors from the Home District asked the assembly for remuneration for jury duty.52 Gowan’s efforts led to extended debates in the assembly that typically highlighted an important problem with attempts to have jurors paid: an inability to decide how the needed funds would be raised. Such doubts were expressed in a debate in December 1844 when Gowan introduced another bill to pay jurors.53 For example, legislators criticized Gowan’s 1844 bill on this ground. Louis-Hippolyte La Fontaine castigated the house for considering a measure ‘involving an immense expenditure of public money without being able to say how it was to be raised.’54 William Hamilton Merritt and George Sherwood also argued against the bill, suggesting that the statute labour principle was the cheapest method of taxing for jurors – that is, making the jurors perform the duty without pay. Sherwood estimated that the probable expense of Gowan’s proposal would be 12,000 pounds annually.55 Gowan’s 1844 bill failed, but there were more efforts to have jurors paid in 1847 and 1849. Gowan was unsuccessful in his attempts to win re-election to the assembly in the late 1840s. In his stead, John Wilson

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introduced a motion that the assembly consider paying petit jurors in criminal cases in Upper Canada out of the colony’s consolidated revenue fund.56 Wilson, a Scottish-born lawyer representing London as a Tory, promised to bring in a bill if the assembly agreed with his motion.57 He argued that it was expedient to pay petit jurors five shillings for every twenty miles they travelled to court. Gowan’s earlier efforts had failed to suggest where this money would come from, and Wilson did not entirely solve this issue. He calculated that the measure’s cost would be 2,000 pounds or less per year.58 After the motion received a mixed reception, Tory Attorney General William Badgley recommended that Wilson withdraw his resolution in return for a promise that the government would bring in a general jury law in the next session of the assembly.59 Wilson agreed and withdrew his motion. In the 1848 elections, however, the reformers became a majority in the assembly for both Upper and Lower Canada, and responsible government was finally achieved when Governor General Lord Elgin invited La Fontaine and Robert Baldwin to form a ministry, the latter becoming Attorney General of Canada West for the second time.60 The governor handed over power to dispense patronage to the cabinet of the party possessing a majority in the assembly. The 1848 transition in government meant that Attorney General Badgley’s promise to introduce a jury bill went unfulfilled, so in 1849 Wilson again asked the assembly to pass a resolution calling for the payment of petit jurors in Upper Canada.61 The long debate over Wilson’s resolution provides insights into the challenges experienced by jurors in Upper Canada and demonstrates the extent to which legislators seriously considered an important new state initiative with little sense of how much it would cost. Wilson wanted to provide jurors five shillings per day for their attendance, and six pence per mile travelled. He also offered a three-part plan for how this could be paid for. He noted that litigants currently paid fifteen shillings at the assizes (or seven shillings, six pence at Quarter Sessions) for every civil case that went to trial. He suggested that this should continue, except that the fees would be collected for jurors regardless of whether the cases settled before trial. The second fund would be costs paid by defendants in assault cases, and the third would come from the district, which would provide any additional funds needed.62 Supporters of the resolution emphasized the difficulties of jury service in Upper Canada. Reformer and lawyer William Buell Richards asserted that every person in the justice system was paid, and the jurors should not be the only

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parties neglected. Richards had defeated the Tory Gowan in the 1848 election in Leeds, and his support for the payment of jurors suggests that this was a popular cause in eastern Upper Canada.63 John Sandfield Macdonald from Cornwall spoke of the ‘paltry pittance’ doled out to petit jurors. He said that many jurors had to ‘leave large families in danger of starvation during their absence’; if they were not properly remunerated, ‘a general burst of dissatisfaction would be heard from one end of Upper Canada to the other.’64 Opponents expressed concern over the cost of the proposal; they suggested that taxes would have to be raised to pay for it, and noted the extent to which municipalities would dislike compensating jurors. John Scott objected to the proposal because it would lay additional financial burdens on the people of the province.65 He questioned the need for jury pay, claiming that he had not seen petitions asking for it. This led Billa Flint of Hastings, a merchant and strong temperance advocate, to say that he could produce persons for whom jury duty had left a debt ‘which they had contracted in the taverns where they stopped, not having received a single dollar for their attendance.’66 George Sherwood, a lawyer representing Brockville, believed that the proposed plan for raising money to pay jurors would not, in his district, compensate the jurors for one day, and thus provincial funds ought to be tapped.67 Attorney General Baldwin eventually voted in favour of the resolution, though he also expressed concern about the cost of the proposal. Baldwin then told the assembly that he wished to bring forward new comprehensive jury legislation, but that he was too busy to act in the current session.68 The assembly passed Wilson’s resolution that juries should be paid from local sources by a healthy fifty-six to nine margin.69 It then passed a bill to pay petit jurors and to reduce the number of such jurors to be called from forty-eight to no more than forty.70 In the debate over the bill, proponents again emphasized that juror pay was a popular cause,71 while opponents worried about raising the necessary money and expressed doubts that people would laud the bill because of the potential for increased taxation.72 One opponent, Henry John Boulton thought it should be left to the different localities to decide whether to pay jurors. He hinted at the extent to which responsible government was thought to mean local control, not just on the colonial level, but by municipal governments. The district councils, he argued, were deliberative bodies, and ought to be left to decide this matter without being coerced by the legislature by a measure that was ‘unjust, and contrary

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to the principles of Responsible Government.’73 The bill passed the assembly, but the council refused to pass it into law.74 As will be shown in chapter 6, the legislature did eventually provide more pay to Upper Canada’s jurors, although the critics of the measure would be proven correct. The cost of paying jurors would be much larger than anticipated with the result that the movement to pay jurors would ultimately undermine the jury system by greatly increasing the expense of using juries. Conclusion As a key pillar of ‘British Justice,’ the jury was quickly introduced to Upper Canada, and Upper Canadian politicians and judges repeated the language of English jury ideology. However, those eligible for jury duty in Upper Canada, like those of Nova Scotia, expressed less mythic views of the jury and complained about the location of courthouses and the resulting travel. Travel, however, was easier in Upper Canada than in Nova Scotia, and Upper Canada sheriffs could choose jurors who lived close to the courts. As well, the decreased role of grand jurors in local governance in Upper Canada lowered the level of concern over the representativeness of grand juries. Despite this, there were enough complaints about the challenges of jury service in Upper Canada that rural legislators sought to provide compensation to jurors for their travel and lost time. Despite numerous attempts, no such bill became law during the 1830s and 1840s. In time, jurors would be paid, though these payments would increase the cost of the jury system, which then contributed to calls for the reduced use of juries.

3 ‘The Bean Box’: Reformers and the Politicization of the Jury System in Nova Scotia

As shown in chapter 1, before responsible government, many Nova Scotians found jury service distasteful. This attitude resulted in the decreased use of juries. The jury system would also come under pressure because it became entwined in the political, religious, and ethnic struggles of the pre-responsible government period. Proponents of responsible government expressed concerns that Tories packed juries. Several high profile libel cases emphasized the role of the jury in protecting freedom of the press (and therefore reformers’ ability to challenge the Tory leadership of the colony). In response to these challenges, politicians issued homages to the jury’s role as a defender against oppression, and passed legislation aimed at preventing jury packing. Worry over the sheriff’s discretion to select juries led Nova Scotia to create a more complex jury selection system that relied on committees composed of magistrates and sheriffs. Complaints thus resulted in modest reforms to the jury system of Nova Scotia prior to responsible government, but political disputes (which were often entwined with ethnic and religious tensions) remained embedded in the jury selection system, eroding Nova Scotians’ faith that the jury could impartially administer legal and municipal affairs. Also, as the jury selection system became more complex, in part to avoid allegations of jury packing, it became more difficult and expensive to administer. Over time, increased complexity and cost contributed to the reduced use of juries in Nova Scotia, as it would also in Upper Canada.

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Jury Reform and State Formation In the heated election of 1836, Nova Scotians selected a number of reform-minded persons to the assembly, and in 1838 reformers received seats on the newly formed executive council.1 These reformers helped usher in a major revision of Nova Scotia’s jury laws. The 1838 act responded to at least two broad concerns about juries. The first was a belief held by many reformers that grand juries should elect their own foremen. The debate over the selection of grand jury foremen appeared as early as 1835. At the opening of the Supreme Court in Halifax in February of that year, the grand jurors inquired about the law regarding the appointment of their foreman, as some of the grand jurors believed that this privilege belonged to the jury, not to the court. Chief Justice Brenton Halliburton replied that there was no statute dictating who selected the foreman, but that it had been the practice during his years on the bench for the judges to make the choice, though he did note that the judges usually gave deference to the wishes of the jury unless they made a very objectionable recommendation.2 The reason for reformers’ concern about the selection of the foremen was twofold. First, the election of the foremen reflected the emerging responsible government notion that people should only hold positions of authority with the approval of those affected. The presentment of the Halifax Court of Sessions grand jury in December 1837 made clear the second reason grand jurors wished to elect foremen. As the grand jury’s administrative head, the foreman played a key role in ensuring that the jury quickly completed its civic responsibilities. The Halifax grand jury believed that ‘the public service may be expedited, and the comfort of the jury promoted’ by allowing the grand jurors to select their foreman.3 The second motivation for a new jury bill was the continued dissatisfaction with the selection procedures for grand jurors. As noted in chapter 1, the legislature received three petitions between 1834 and 1837 criticizing the prominent role given to sheriffs in selecting grand juries. In 1837, Thomas Forrester added to the petitioners’ complaints by claiming that Halifax’s jury lists were innacurate. A prosperous Halifax merchant, Forrester was a radical member of the reform movement who would eventually alienate himself from the moderate reform caucus that would assume control of the assembly.4 He asserted that the jury system was ‘a part and a very important part of the British Constitution,’ but he was concerned that ‘wilful omission of the names of persons qualified to serve on Juries,’ or any ‘undue interference’ with

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the making up of jury lists would ‘disturb the very roots of Justice.’5 Forrester’s allegation would be echoed by other reformers during the 1840s. The concern with the selection process for grand jury foremen and the membership of grand juries led reformers Perez Benjamin and Joseph Howe to introduce bills in the assembly that would have respectively tackled each issue.6 The bills caused considerable debate within the legislative council, with several Tory members attacking some of the provisions, especially the proposal to allow grand jurors to elect foremen. Staunch conservative Alexander Stewart objected to the idea that grand jurors should elect foremen. Stewart had joined the assembly from Cumberland County as a reformer, but by 1836 he had become uneasy about the popular movement for reform, and he began opposing efforts to introduce any measure that he believed deviated from British principles or smacked of American republicanism.7 Stewart expressed his full faith in the ability of the judges of the Supreme Court to choose foremen, and asserted that, as the judges had to work with the juries, it was important that they should make the appointment. In keeping with his concern about republicanism, he warned against the ‘democratic and elective principles’ of the bill, ‘which ought to be kept at least out of our courts of Justice, and indeed ought not to be encouraged in the country.’ Prominent Halifax business person William Lawson opposed the bill on similar grounds; he ‘did not like to see the elective principle introduced into our Courts,’ for he ‘had seen enough of elections, and did not wish to see any more of them.’8 The bill had touched a nerve in those who believed deference, not debate, was the key to successful governance. Despite these objections, a major restatement of the colony’s jury laws was passed in 1838 that created a more complex system of grand jury selection. The selection of the grand jury foreman was left to the grand jurors themselves, subject to the approval of the presiding judge.9 The legislation also responded to fears that the 1833 grand jury act had given sheriffs too much power in grand jury selection by establishing a new, more complicated method for choosing grand jurors using jury ‘committees.’10 In each county, the General Sessions was to select three magistrates representing different parts of the county. These three magistrates, along with the sheriff or his deputy, were to prepare lists of all people eligible to be grand jurors. The committee was to update the list at least every three years. The General Sessions then determined the number of grand jurors that should come from each of the townships

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and settlements of the county, and the sheriff and prothonotary balloted from boxes representing each community to determine the grand jury that would serve for the full year. The use of committees of magistrates and sheriffs to identify eligible grand jurors would prove to be a very troublesome practice from the start. A major problem was that magistrates simply failed to fulfil the requirements of the act. The difficulty in implementing this new selection system illustrates the challenges facing ambitious state initiatives in Nova Scotia in this period. Upper Canadians, in comparison, would have more success implementing complex jury selection systems. The reluctance of the jury committees to complete their assigned tasks first became evident in October 1839 in the trial of Smith Douglas Clarke and John Elexon at the Supreme Court in Halifax. Clarke faced an indictment for murder, and Elexon was charged as an accessory before the fact. A day before the trial was to begin, Attorney General Samuel George William Archibald learned that the Halifax grand jury had been drawn and summoned improperly. The problem arose from the 1838 jury act’s requirement that three magistrates be appointed at the first General Sessions to make lists of the qualified jurors. According to the Novascotian, the magistrates ‘had made no appointment in the June Sessions – nor in September – nor until December.’11 As a result, the grand jury had been selected under the old law. After becoming aware of the problem, Attorney General Archibald recommended that the trial be postponed. The case attracted plenty of attention when it finally went to trial in January 1840, partly because it was a murder trial, which usually attracted large crowds, and partly, as the Novascotian noted, because of the delay caused by the failure to comply with the jury act which had ‘excited some curiosity.’12 The jury ultimately found Clarke guilty and Elexon not guilty. The jury problem in the Clarke and Elexon trial was important enough to attract the attention of the colony’s leadership. Archibald and Solicitor General James W. Johnston brought the problems in Halifax jury selection to the executive council’s attention. In October 1839, they told the council that the defective state of the grand jury lists of Halifax County had forced them to delay the trial of Clarke and Elexon. Since the grand jury sitting for the year had been improperly constituted, Archibald and Johnston had not considered themselves ‘warranted in proceeding upon an indictment’ found by such a jury. They believed that the problem could only be remedied by an act of the assembly, without which, in their opinion, the Supreme Court and the

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General Sessions would not ‘have the aid of a legal Grand Jury at the next term.’13 Informed of the problem, Lieutenant Governor Colin Campbell responded by calling together the assembly to have it address the issue. On New Year’s Eve 1839, he told the legislators that he had been ‘principally induced to call you together’ because the 1838 jury act’s provisions ‘have not been duly attended to.’ As a result, ‘important criminal proceedings have been already delayed for the want of legal Grand Juries.’14 He thus demanded that the legislature speedily adopt a measure to fix the problem. The assembly appointed a select committee to inquire if (and if not, why) magistrates and sheriffs had complied with the 1838 jury act.15 The committee reported back in March 1840. Officials in the Counties of Lunenburg, Hants, Annapolis, Digby, Cumberland, Guysborough, Pictou, Colchester, Sydney, Kings, Queens, and Yarmouth claimed that they had complied with the 1838 statute. However, Robert Roberts, the sheriff of Cape Breton, said that the act had arrived too late in the year for its provisions to be met.16 In two other Cape Breton counties, Richmond and Inverness, the sheriffs and magistrates, despite being notified of the new act, did not follow it; instead, they drew grand jurors under the old law. There were other problems. In Shelburne County, three magistrates were appointed, but they were not sworn in as the law directed. Halifax experienced an egregious failure. The clerk of the peace for the county acknowledged that he saw the act published in the Royal Gazette, yet the committee of the assembly reported that ‘the June Term (the first after the passing of the Act,) passed over without the legal nomination of Justices – and a loose and unsatisfactory reason is given by the Clerk of the Peace for this most culpable neglect of the Law.’17 Whatever the reason offered by the clerk of the peace, the failure to comply may have resulted from the fact that the magistrates and the sheriff did not receive any additional compensation for their work on the jury selection committees. Even before the select committee had made its report, the legislature decided to address the issue. William Young introduced legislation that validated the decisions of grand juries, even if not formed under the 1838 act.18 Young rationalized the move by saying that something had to be done to stop the embarrassment to the country.19 The government in Halifax had few tools at its disposal to ensure that magistrates completed their assigned tasks. The most dependable state actors in the 1830s were the judges of the Supreme Court, who travelled throughout Nova Scotia on circuit, carrying with them the knowledge of govern-

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ment policy decisions in Halifax, and bringing back to Halifax opinions of the inhabitants living in the periphery of the colony. Perhaps unsurprisingly, then, the legislature attempted to ensure future compliance with its legislation by requiring that the judges of the Supreme Court determine if the General Sessions had formed jury selection committees, and whether the jury lists had been made out properly. If these tasks were incomplete, then the justice(s) were to nominate and appoint three magistrates from the county and swear them to discharge their duty. Somewhat surprisingly, given the problems of implementing the 1838 statute, the 1840 amendment extended the use of jury committees to the formation of the lists of eligible trial jurors as well.20 The failure of some magistrates to fulfill their statutory duties under the 1838 jury act demonstrated the weakness of the state in Nova Scotia in the late 1830s and early 1840s. In discussing the governance of Nova Scotia, Lieutenant Governor Campbell said in 1840 that ‘by far the most serious defect in the Government’ was the utter lack ‘of power in the Executive and its total want of energy to attempt to occupy the attention of the Country upon real improvements or to lead the Legislature in the preparation and adoption of measures for the benefit of the colony.’21 It was not just a lack of will that hindered new initiatives, however. Nova Scotia also lacked effective administrative instruments to implement programs, including more ambitious jury legislation. Magistrates were dispersed across the colony, often in rather remote locations, and were thus clumsy tools for implementing a new jury selection program. The vast majority of the colony’s magistrates had little or no legal education, and rarely possessed the social status of justices of the peace in England. English magistrates were chosen from the leisure class, but no such class existed in rural Nova Scotia.22 The magistrates thus preferred duties that brought them the spoils of patronage.23 Magistrates situated far from the capital also possessed considerable power in their localities because they could act with substantial independence. A reader of works by Judith Fingard and Jim Phillips on the criminal justice system in Halifax might assume a strong state apparatus throughout Nova Scotia.24 Historians, however, have paid less attention to the justice system in the rural areas of the colony, and the literature they have produced suggests that a high level of state control did not exist outside the metropolis before Confederation. Local resistance to the extension of centralized legal systems was not unknown in the British North American colonies in the mid-nineteenth century,25 and any changes to the legal system that increased the bur-

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den on the colony’s magistrates was probably unappreciated. Even in Halifax County, where the state was presumably strongest, the magistrates failed to comply with the 1838 legislation. In the debates over the 1840 jury legislation, several members of the assembly thus expressed frustration at the unwillingness or inability of magistrates to follow the directives of the legislature. James Boyle Uniacke, a lawyer and member of one of the most esteemed families in the colony, laid the blame for the failure to administer the act on the magistrates, who, he said, ‘were themselves entirely irresponsible.’26 For his part, Thomas Forrester believed that the magistrates should have attempted to abide by the act as soon as possible, rather than simply disregard it. He criticized the magistrates, saying that, although many were respectable in private life, they often lacked the energy or talent required for public affairs.27 Thus, as Graeme Wynne concludes, magistrates ‘were tentacles of the “state,”’ but ‘their strength in that capacity should not be overestimated’ since ‘most justices enjoyed a great deal of freedom in their conduct of local business; many indeed fell sorely short of the demands of their offices.’28 Legislative reforms in the late 1830s highlighted the challenges of creating a more complex jury selection system in Nova Scotia. Magistrates were reluctant to undertake more work without remuneration, the cost of which would make the jury system more expensive. As will be shown in chapter 6, Upper Canada solved this problem in the 1850s by using the new administrative structure provided by the 1840s municipal reforms and by paying and closely supervising officials. Nova Scotia in 1840, however, lacked the resources and governance structure to uniformly carry out new jury acts. The Jury, Responsible Government, and the Public Sphere The ink was barely dry on the 1840 legislation responding to the failure to execute the 1838 act when new criticisms began to emerge. Whereas complaints about the early difficulties of implementing the 1838 statute reflected the weakness of the state in Nova Scotia, the criticisms that appeared after 1840 stemmed from ethnic animosities, the movement for responsible government, changing ideas about the propriety of political ‘parties,’ libel law, and the press. As was shown in chapter 1, the jury’s role as a protector of liberty in the face of government oppression was not the stuff of everyday life in Nova Scotia. The rhetoric emphasizing the jury as the defender of the rights of Englishmen was

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typically voiced only during politicized trials. In the 1830s and especially in the 1840s, a number of trials resulted in a reappearance of the rhetoric of English jury ideology in Nova Scotia. Reformers charged that magistrates and sheriffs were intentionally selecting biased jurors – that they were attempting to pack juries with Tories and Protestants. The roots of this challenge to the representativeness of juries frequently stretched from Nova Scotia across the Atlantic to Ireland. Many of the almost 13,000 Irish who arrived in Halifax between 1815 and 1839 passed through Nova Scotia and settled in New Brunswick. Of those that remained before 1840, most established themselves along the eastern shore of Nova Scotia, in the Arichat-St Peter’s area of Cape Breton, or in Halifax, where they found work as labourers on the construction of wharves and warehouses along the waterfront and on the new Citadel Hill fortifications. During the second half of the 1840s, as the potato famine ravaged Ireland, an increasing number of Irish Catholics came to Nova Scotia. More likely to settle in towns than the previous Irish immigrants, the new wave soon constituted a substantial proportion of the urban labour force. The Irish brought with them a history of religious and ethnic mistrust and conflict. Halifax had the greatest concentration of Irish in Nova Scotia, and the amount of ethno-religious tension soon rose dramatically.29 A few of the Irish immigrants prospered, such as Laurence Kavanagh, who in 1823 became the first Catholic to take a seat in the assembly. Another Irish Catholic, Lawrence O’Connor Doyle, joined Kavanagh, representing Arichat, Cape Breton County in the assembly in 1832. Doyle teamed with Joseph Howe to provide leadership in the 1830s to the inexperienced cast of reformers in the assembly. Born in Halifax in 1804 to a Roman Catholic merchant, Doyle received his education at Stoneyhurst College in Lancashire, England. Returning to Nova Scotia in 1823, Doyle studied law under Richard John Uniacke and became the first Catholic lawyer in the colony when he received his call to the bar in 1828. Soon after entering the assembly in 1832, he became an avowed reformer, and, along with William Young, served as a source of legal expertise for the reformers. Doyle also joined the non-sectarian Charitable Irish Society, whose membership included Joseph Howe and Thomas Chandler Haliburton.30 The close connection between Doyle and Howe mirrored the larger relationship between the reform movement and Irish Catholics in Nova Scotia. Many Irish Catholic immigrants felt that the Nova Scotia political system failed to support their interests or provide opportunities for advancement.31

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The Irish thus supported the reformers’ goal of removing the oligarchy controlling much of Nova Scotia. Historians have noted that tensions eventually emerged between the reform movement and the Irish. Friction grew because of the continued poor representation of Irish in elected and appointed positions, despite the successes of a few prominent men such as Doyle.32 Another source of tension was the extent to which many Irish Catholics came to support the Repeal Association in Ireland. The Act of Union of 1801 had formally combined England and all of Ireland. Daniel O’Connell, the most prominent voice of Irish independence during the first half of the nineteenth century, led the movement in Ireland for repeal.33 In Nova Scotia, Doyle increased his interest in Irish affairs during the 1840s. He supported Irish repeal, as did many members of the Charitable Irish Society. This support, however, threatened to create a cleavage with Anglophile reformers, many of whom deemed the repeal movement disloyal.34 These problems contributed to the 1843 collapse of a coalition government between moderate Tories and reformers that had formed in 1840. The subsequent election placed in power a Tory ministry with a slim majority headed by James W. Johnston, who became Attorney General.35 Despite these tensions, until at least 1845, Irish Catholics and reformers found common cause in criticizing the justice system, and in particular, jury selection. Some of the early criticism was levelled at sheriffs. In January 1841 ‘Darby O’Toole’ complained in the Novascotian about sheriffs and their partiality in the jury selection process. O’Toole began by reminding readers that every person discharging important judicial duties should ‘so comport himself in the eyes of the public that not even a suspicion of partiality in the exercise of his official functions, could be reasonably entertained.’ The sheriff should be held to the same standard. ‘Such, however, is the constitution of frail human nature that it is morally impossible for a Sheriff, who is a violent political partizan [sic], to perform the duties of his office without incurring (and indeed deserving) the imputation of partiality.’ ‘Not a writ can be served,’ O’Toole continued, ‘not a Sheriff’s Jury impanelled – without a manifest token of either forbearance or severity that may be fairly attributed to peculiar political views.’36 O’Toole’s complaint highlighted the fear that Tory sheriffs would manipulate juries to protect Tory interests. Reformers also frequently aimed their attacks at the magistrates, who, along with the sheriff, constituted the committees responsible for selecting eligible jurors. For example, in December 1842, ‘Morgan

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Dillyham’ asserted that partisan Tory magistrates filled the General Sessions. These magistrates, Dillyham said, did ‘not always conceal their party predilections, prepossessions, and prejudices, in the discharge of duties which are of the most grave and important character.’ Dillyham asserted that because of Tory magistrates there was ‘not a legal Grand Jury in the County.’ His charge was that the jury law required that a committee of three magistrates work with the sheriff to help identify the potential grand jurors, but that only two magistrates had acted in that capacity. This was not an innocent oversight, claimed Dillyham. He said that at least three-quarters of the county’s freeholders were friends of responsible government, but the biased committee meant that the grand jury consisted almost wholly of Tories.37 To understand why reformers expressed fierce views about jury composition, it is necessary to appreciate the connection between the Nova Scotia press, libel law, the debate about ‘party’ government, and Jeffrey McNairn’s thesis that reformers were concerned with creating outlets for informed public debate. McNairn demonstrates the growth of a ‘bourgeois public sphere’ in Upper Canada through the growth of the press, voluntary associations, and taverns. In early nineteenthcentury British North America, there were few regularly published newspapers. Those that were published had a limited readership, and aimed at a genteel audience. They shaped their content accordingly to include, for example, commercial and foreign news, and essays on morals, history, and literature. Most newspapers were reluctant to comment on provincial politics. This changed in the 1820s and 1830s. The number of communities in Upper Canada (and Nova Scotia)38 with local newspapers rose dramatically, and McNairn suggests that most of these Upper Canada newspapers ‘became political weapons to create and reflect public opinion.’39 Newspapers increasingly published legislative debates and political commentary. Readers participated in this new forum of political dialogue by subscribing to papers reflecting their political orientation and by writing letters to the editor. As newspapers became more interested in local politics and political dialogue, the reform press pushed traditional boundaries of journalistic decorum in challenging the colonial Tory oligarchies. Politicians of all political stripes celebrated the idea of freedom of the press, but opinion differed as to whether the law should regulate civility in newspapers. The Family Compact in Upper Canada (as will be shown in chapter 4) employed the law to rein in opposition publishers. Sometimes this occurred through government prosecutions in the form of criminal

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seditious libel charges. At other times, individual Tories privately sued newspaper proprietors for libel in the civil courts.40 The success of libel proceedings depended upon the willingness of jurors to find against newspaper proprietors. Jury composition thus became a key concern. The trends McNairn identifies in Upper Canada occurred in Nova Scotia as well, where Tories argued that the reform press divided the colony into political camps by misrepresenting the truth and demonizing those branded ‘Tories.’ Many Nova Scotians in the 1830s and early 1840s had yet to accept the idea of political parties; they instead expressed faith in the ability of independent and public-spirited men to represent the interests of all Nova Scotians. Many Tories believed that checks were needed to limit power, and stressed the independence of elected legislators. Thus the Tory James W. Johnston feared parties, believing that they encouraged patronage, while Beamish Murdoch resisted the reformers’ view that patronage should be dispensed according to the wishes of the party with a majority in the assembly. Murdoch believed that reason in politics, not opposition, achieved the best results.41 From the perspective of many Tories, libel proceedings constituted a legitimate means of forcing aggressive reformer party-builders to refrain from using their presses to express extreme rhetoric of questionable veracity. The Tory Morning Post captured this view in 1844, writing that Nova Scotia’s newspapers ‘now teem with falsehoods innumerable.’ They ‘insert anything that will have an apparent tendency to advance the interests of a party, or gain supporters to a few interested individuals, who hold several presses under their thumb, as the instruments of gaining power, by cajoling the people with sophistry, or misleading them with untruths.’42 This perception of the reform press easily led to libel suits with the goal of reining in what was deemed unacceptable political speech. The reform press, of course, perceived things differently. Many reformers believed that two parties were already in de facto existence, and that an active and critical press needed to inform Nova Scotians of the decisions of the Tory ‘party’ that had come to power with the collapse in 1843 of the 1840 coalition government.43 In August 1844, the Yarmouth Herald, a reform newspaper, suggested that the Tories had the support of just two of the colony’s fourteen or fifteen newspapers, which meant that they were ‘beginning to feel the estimation in which they are held by the intelligent yeomanry.’ But, if ‘the Liberal press could be silenced,’ warned the Herald, ‘and the constituency be unin-

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formed of what is transpiring, or informed only through official and subservient channels, certain personages might feel perhaps more secure than they do at present.’44 As a result, the reform press watched political libel cases in other colonies and frequently paid tribute to the idea of freedom of press in introducing articles on political affairs as a means of affirming their right to publish contentious commentary.45 Competing attitudes towards political criticism in the press had contributed to the attempt to convict Joseph Howe for seditious libel in 1835. Unlike libel cases that followed in the 1840s, however, Howe’s successful defence against the charge did not raise questions about jury composition. The facts of the Howe case are well known. It began when Howe served as a grand juror in Halifax in 1832 and found many examples of corruption by the magistrates. Previous Halifax grand juries had sometimes offered presentments outlining failures in the city’s administration, but little action had been taken. The 1832 grand jury consisted of several reformers, however, and it criticized William Cleaveland, the clerk of licenses and county treasurer, for peculiarities in his accounts. The grand jury attempted to have Cleaveland removed and replaced by Edward Pryor Jr, but the magistrates in Sessions refused to approve the change. The grand jury also noted that many back taxes remained unpaid, and it refused to levy an assessment for 1833. A less reformist grand jury served in 1833, but the next year a more aggressive grand jury again charged that some wealthy property-holders in Halifax had escaped paying their taxes, while several officials had used their positions to garner personal profits. Howe, as editor of the Novascotian, published two letters signed ‘The People’ that called for the reform of local government and charged corruption on the part of public officials.46 The magistrates of Halifax, angered by the letters, complained to Lieutenant Governor Sir Colin Campbell, who told Attorney General Samuel George William Archibald to prosecute those responsible for the letters. In February 1834, Howe was charged with seditious libel, resulting in a ‘political show trial’47 of the first magnitude. Howe defended himself, Chief Justice Brenton Halliburton presided over the trial, and Attorney General Archibald prosecuted, although Archibald was probably unenthused about the prospects of prosecuting Howe and may have hoped that the grand jury would not endorse the indictment. The grand jury, however, allowed the case to go to trial.48 The Crown, to establish its charge, had the letter signed ‘The People’ read in the courtroom. Howe had the advantage of a friendly jury. On the jury composed

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of one butcher, six merchants, one ship chandler, one ‘gentleman,’ and three trades people,49 sat five men who had been members of the 1832 grand jury that had criticized the government, and a sixth was Edward Pryor, the man the grand jury had nominated to replace Cleaveland as county treasurer. Since Howe was defending himself, Chief Justice Halliburton gave him considerable leeway. He rose and delivered a six and a half hour address to the jury. He repeated complaints made by grand juries about the unfairness of the assessment system, which allowed many ratepayers to escape their tax burden, and he criticized specific officials for taking personal pecuniary advantage of their positions.50 Howe ended his address by asking the jury to remember its constitutional role as the defender of liberty against government oppression. ‘An English jury will do justice to the poorest wretch on earth, though menaced by the proudest oppressor,’ he suggested. ‘The victim may be bound, and prepared for sacrifice, but an English jury will cast around him the impenetrable shield of the British law.’ He told the jurors to think about how English jurors had stood against political oppression in the past. ‘Will you, my countrymen,’ he continued, ‘the descendants of these men; warmed by their blood; inheriting their language; and having the principles for which they struggled confided to your care, allow them to be violated in your hands?’51 Howe thus called upon traditional jury ideology to encourage his jury to protect his right to critique those governing Nova Scotia. The jury took little time to find Howe innocent, reporting back to the court in ten minutes. The crowd in and around the courthouse began to celebrate, and Halifax’s newspapers welcomed the jury’s decision. Word of the case’s outcome soon spread across the province through the press, and through the sale of a popular pamphlet.52 A consistent theme of these reports was the valiant decision of the jury.53 Despite the contemporary reaction to the decision and the popular legacy of the case, the Howe trial did not secure freedom of the press in Nova Scotia for all time. Whether public debate in the growing Nova Scotian press was free depended upon the decisions of Nova Scotia juries in the many subsequent libel suits launched against colonial newspaper publishers. The Howe case, unlike many libel cases that followed, did not raise concerns over packed juries. The trial thus did not motivate reformers in Nova Scotia to pass legislation that would prevent jury packing. Reformers would, however, find motivation in other prominent, though less famous, nineteenth-century libel cases in Nova Scotia. In the libel cases of Richard Nugent and William Annand (to be discussed in a

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moment), reformers were less fortunate than Howe, and charges of jury packing flew furiously. Law and politics collided in these spectacular cases, which damaged popular faith in the jury and became symbols for the necessity of jury reform to protect press freedom. In complaining of partiality in the justice system, especially bias in jury selection, reformers, and especially the Irish Catholics among them, tapped into the long history of jury packing in Ireland. Charges of jury packing marred trials in Ireland throughout the nineteenth century as Irish Catholics asserted that juries were full of biased Protestants.54 Despite attempts to rig juries, however, nineteenth-century Irish jurors were notorious for their willingness to acquit defendants; Irish juries convicted defendants at considerably lower rates than their counterparts in England. Several factors led to lower conviction rates, including a more tolerant attitude towards violent crime, and juror sympathy with defendants accused of ‘agrarian’ crimes, such as cattle mutilation and assaults stemming from landlord and tenant disputes. Jury intimidation was also sometimes a factor, as jurors feared reprisals for finding guilty verdicts.55 Popular resistance to the implementation of central authority thus marked Ireland, as did a desire by officials to reduce the number of acquittals by packing juries, especially in high profile, political cases. Jury selection therefore became contentious. This issue burst onto the public consciousness in 1844 with the O’Connell trial. In O’Connell, eight Irish Catholic defendants were charged and convicted of sedition. The key defendant was Daniel O’Connell, who in 1843 had begun to organize massive meetings throughout Ireland to call for the repeal of the Act of Union. The British government sought to silence him, and in October 1843 he and several of his supporters were arrested and charged with sedition. This led to concerns that a packed jury would judge O’Connell. The defendants objected to the special jury on several grounds, including that the jury book for Dublin had been fraudulently prepared. Ostensibly, the jury book was to contain the names of all eligible jurors, but the defendants charged that it did not contain the names of fifty-nine eligible Catholic jurors.56 The Court dismissed the defendants’ objection, and O’Connell was found guilty and sentenced to a year in jail. The defendants grounded an appeal to the House of Lords on several claims, including the failure of the trial court to substantiate their complaint regarding the jury selection process.57 The House of Lords divided three to two in the appeal in overturning the conviction. The most famous of the majority judgments was that of Lord Denman. He believed that if the House of

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Lords did not grant a remedy for the trial court’s failure to uphold the challenge to the jury panel, then trial by jury, he declared in a famous quip, ‘instead of being a security to persons who are accused,’ would be ‘a delusion, a mockery, and a snare.’58 Denman’s assertion soon influenced developments in Nova Scotia. The trial of O’Connell received extensive newspaper coverage, not only in England and Ireland, but also in British North America, including in Nova Scotia.59 It had an immediate impact in Nova Scotia, where many reformers invoked it in substantiating their complaints about jury selection. An early instance of O’Connell’s trial permeating discourse about juries in the Nova Scotia appeared in May 1844 when Richard Nugent charged that a partial jury selected by Tory magistrates had convicted him of libel. Nugent had learned the newspaper trade under the tutelage of Howe. As Howe became more interested in politics, Nugent increased his role at the Novascotian, ultimately becoming its sole owner in 1842. His time as proprietor would be short lived, however. A strong defender of reformers, his criticisms of Tories led to a series of libel proceedings. In August 1842 he published a letter that criticized the Halifax city recorder, William Q. Sawers. The letter said, among other things, that Sawers was ‘a rapacious attorney, doing a small business.’ In November of the same year, the Novascotian printed another letter attacking a ‘Councellor Skunkfeet,’ a reference that Silas Livingston Morse of Annapolis County identified as himself. Sawers and Morse, with the assistance of Attorney General Johnston, sued Nugent for libel and in both cases juries found against Nugent. As a result, Nugent faced damages totaling 150 pounds, plus costs. New libel suits and the threat of bankruptcy forced Nugent to sell the Novascotian in the fall of 1843. Unable to pay his debts, Nugent was sent to the county jail for twelve months.60 Nugent, however, did not sit quietly in his jail cell. He challenged the fairness of his trial by asserting that he had been tried by a packed jury. He wrote to the Novascotian to argue that the justice system was biased against reformers. ‘Circumstances have given my enemies a triumph, but it is the triumph of the strong over the weak – of the wealthy and powerful over the poor and humble,’ he asserted; it was ‘not the triumph of justice, but of power.’ He focused on special juries, calling them ‘admirable contrivances to punish the conductors of Liberal Journals, especially when the Grand Jury list from which they are drawn is made up almost exclusively of violent and uncompromising Tories!’ Nugent was a Roman Catholic, and he compared

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how his opponents secured legal victories with how Daniel O’Connell had been convicted: ‘Verdicts have been secured against me precisely as the Tory Ministry of England secured a verdict against the patriotic O’Connell.’61 Allegations of a packed jury in an 1844 Amherst libel case against William Annand further evidenced the significance of jury composition in the context of debates over party politics and freedom of the press.62 The publisher of the Pictou Observer sued Annand, who had taken control of the Novascotian after Nugent’s financial collapse. An article in the Novascotian in September 1844, later attributed to Joseph Howe,63 asserted that the prothonotary had failed to keep the ballot box in his possession before the jury had been selected. Instead, the sheriff of Cumberland County, Joshua Chandler, transported the jury box from the courthouse to the deputy prothonotary’s office. Chandler claimed that the weight of the box forced him to pause at the business of James Delaney,64 where it was alleged that those who were ‘interested in obtaining verdicts against the Liberal Press’ tampered with it.65 Of 312 potential jurors, 226 lived in rural Cumberland County (where Tories held sway), while 86 lived in Amherst (a stronghold of reformers). The fortyeight member jury panel, however, contained only two inhabitants of Amherst. Howe mocked the composition of the panel by keeping a box in his office containing 226 black beans and 86 white beans, suggesting that no one who blindly drew from the box could match the division of jurors in Annand’s libel case.66 Howe publicized his bean experiment in probabilities to prove that the jury selection process had somehow resulted in the drawing of an inordinate number of Tories: The Bean Box proves, that, in 99 cases out of 100, at least 10 white beans will be drawn out of 48 – that in half the cases there will be 15 or 16; and that although such a thing as but one or two being drawn is barely possible, it is so improbable, that, if it were to happen … the presumption would almost amount to a moral certainty that the proportions in the box had been changed.67

The jury found against Annand and awarded fifty pounds in damages. The defence waited until after the trial to point out the selection irregularities to prevent prejudicial treatment from the jury. Delaney and Chandler then publicly proclaimed their innocence,68 and Annand failed to get a new trial, the Supreme Court pointing out that a loose practice had developed of allowing the sheriff to retain the ballot box.69 From the perspective of reformers, the jury system had again failed to protect a critical voice.

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Annand’s libel case in Amherst resulted in especially fierce verbal sparring in the assembly between Howe and Attorney General Johnston that again demonstrated the important differences in the views of reformers and Tories regarding political parties and the role of the press. Johnston admitted that he held the reform press in contempt: ‘I feel for it a contempt so perfect – so entire – that language cannot express its fullness.’ He said that the country parts of the colony desired news and knowledge, but that the reform press only supported its own political position. ‘You who pretend to be the friends of the people,’ Johnston told the reformers in the assembly, ‘with the cry of patriotism on your lips – in your hearts, as proved by your acts, are traitors to your trust, and abuse the confidence which has been reposed in you.’70 Howe responded by detailing the allegations of jury packing in Annand’s case and charging that the silencing of the reform press stemmed from Johnston’s desire to defend his own party’s indefensible political positions.71 The reform press argued that the trials of Nugent and Annand demonstrated that the Tories constituted a ‘party,’ despite their claims to the contrary, and were willing to use packed juries and libel law to silence opposition reformers. The Morning Chronicle, also published by Annand, mocked the ‘No-party Government’ in September 1844, saying that the Tories were ‘never ungrateful to unscrupulous partizans [sic],’ and had thus rewarded Delaney for his assistance in pursuing the reform press with an appointment to the magistracy.72 In its next edition, the Chronicle asserted that Attorney General Johnston had sought to use the law to suppress the press. These efforts, the Chronicle hoped, would fail, ‘though every jury-box in the country be deposited, unlocked, and unprotected, in the hands of their own subservient partisans.’73 The reform press tapped into the events in Ireland to buttress their assertions of jury packing and to encourage support for the reform party. Following the libel proceedings against Annand, the Novascotian noted how, in England, judges were ‘checked and counter checked by appeal,’ a point made clear by the ‘late trial of O’Connell.’ The newspaper called for a revision of the jury law, for though it was unclear if there was ‘an augean stable to sweep out,’ there were clearly ‘filthy corners’ apparent from, among other incidents, the drawing of the special jury in Nugent’s case, and the jury lists in Halifax, where it was notorious that the majority of reformers were ‘excluded both from the Grand and Special Juries.’74 Reformers also explored the possible exclusion of Irish Catholics from juries in Halifax to substantiate their claims of politically moti-

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vated procedural skullduggery.75 In January 1845, the Novascotian began printing excerpts from the Halifax Register, an Irish reform newspaper, attacking the selection of grand jurors. According to the Novascotian, the Register ‘merely says in civil language what every Irishman has been saying to himself for the last month – that there is nearly as much fairness in the system here, as there is in Ireland.’ The Register complained that special juries were drawn from the grand jury lists, which were incomplete and inaccurate. An inspection of the jury lists would show them to have defects and omissions, providing ‘abundant cause to complain.’76 The reform press connected politics, ethnicity, religion, and jury selection. According to the Novascotian, the unfairness of the grand jury had been denied, but, ‘[w]ho will deny it now, the Conservatives have 2/3 of the Jury – In a city with many thousands of respectable Irish Catholics in it, not one comes out of the Box, whatever proportion may have been inside?’77 The Register argued that Irish Catholics had been removed from the Halifax jury list in the same way that Catholic names were removed from the Dublin jury rolls.78 The Register continued to press its criticisms of jury selection. It charged that Halifax had three hundred reformers who possessed the proper qualifications to serve as grand jurors, yet only one hundred of their names had made their way onto the list of eligible men. Similarly, the paper suggested that Catholics represented one-third of the Halifax population and that one hundred Catholics could act as grand jurors. Nevertheless, there was not a single Catholic on the jury list.79 For Nova Scotia’s Irish Catholics, grand jury membership was important because of the grand jury’s traditional roles in the administration of justice and in local governance. Irish immigrants also desired membership on the grand jury because it bestowed one of the honours of respectability and citizenship. As David Neal argues in the context of early nineteenth-century Australia, the ‘day-to-day operation of juries, politically important though it was in some cases, was not as important as the mark of political status conferred by enrolment on the jury lists.’80 The jury acts of Nova Scotia did not list ethnicity or race as reasons for exclusion from juries, but the Irish wanted to ensure that this factor did not surreptitiously play a role in jury selection, particularly given the context of rising ethnic tensions in the 1840s. The complaints over jury selection culminated in a large public meeting at Mason’s Hall in Halifax on 6 February 1845.81 The tory press criticized the meeting, arguing that the reform leaders were injecting juries with party feelings where none previously existed. The Morning

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Post argued that Howe and the reformers were intent on manipulating the Irish in attendance simply to further their own political agendas.82 The Times expressed concern over the alleged omissions from the jury lists, though it also questioned whether reformers had raised the issue simply because it was ‘a profitable topic upon which to descant in the Legislature.’83 The prominent speakers at the Mason’s Hall meeting – including reformers Lawrence O’Connor Doyle, Joseph Howe, and George Renny Young – often pointed to discrimination in jury selection and ground their complaints in the language of English jury ideology.84 Doyle was the first to address the meeting. He told the crowd that he would not sit while harm was done to his religious denomination. To prove harm, he provided statistics on the composition of jury panels and juries to establish that Catholics had been systematically excluded. He said there were at least 100 Catholic men qualified to act as grand jurors in Halifax, yet almost all had been excluded. The jury list should contain all eligible names, said Doyle, leading someone to exclaim, ‘Was it not so in Dublin?’85 a clear reference to O’Connell’s trial. Howe expressed his awareness that the Irish were especially sensitive to such charges, as the Irish had been so ‘long used to packed Juries and injustice, at home.’ He told the audience that Richard Nugent had asked him for advice before his libel trial. Howe initially told Nugent that he should face his accusers – that he should go before the jury, tell them the truth, and let their consciences lead them to a verdict. After Nugent showed him the jury list for the case, however, Howe said he concluded that no reformer could have a fair trial.86 Howe also offered statistical proof of bias in the system. He asserted that of the 163 names on the grand jury list for Halifax, there were 56 reformers and 107 conservatives. Howe also analysed twelve special jury panels drawn from the Halifax grand jury list. Although conservatives were only one-third of the population, he charged that out of 576 names, 426 were conservatives and 150 were reformers. He concluded by drawing upon the role of the jury in British constitutional rhetoric. European history told him that among the worst abuses of power, ‘none were so appalling as those which sprung out of an abuse of the Executive Power, in the packing of Juries.’ His message was clear: ‘Let us be careful, then, in this country, to check the beginnings of evil – that the dearest right of British subjects, the highest safeguard of our liberties, may be religiously preserved.’87 Young, a lawyer who had become a potent spokesman for the reformers after entering the assembly in 1843, focused on the constitu-

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tional aspects of the jury.88 He said that he needed scarcely to say that trial by jury was ‘an essential element of liberty.’ To Young, the elective franchise, trial by jury, and freedom of the press, were ‘the three pillars on which the safety of the subject and the state alike depended – the very essence of constitutional freedom.’ The jury, he explained, was important because it ensured that the press could not be dragged before the courts unfairly. Young lauded Howe, whose story of the box of beans was ‘known from one end of the Province to the other,’ and had ‘directed public inquiry to the subject.’ He also referred to O’Connell’s case, and Lord Denman’s claim that ‘trial by jury, if not conducted free from political influence, could be regarded as nothing else than “a delusion, a mockery, and a snare.”’89 The meeting culminated in resolutions that would lead to a legislative response. The resolutions stated that juries should equitably represent all classes of people. A committee formed to carry forward the resolutions. Thomas Donovan then called for three cheers to be given for Lord Denman, ‘and fair trial by jury all over the world.’ Cheers, ‘loud and deafening,’ followed.90 The committee appointed at the meeting drafted a petition and sent it to the assembly; the petitioners reported ‘with deep regret’ that, owing to the non-observance of the jury act, the list of grand jurors for Halifax County was ‘very deficient, rendering the list defective and highly objectionable.’91 In February 1845 Doyle introduced a bill to amend the jury act and repair the grand jury lists.92 The bill passed, despite the Tories’ control of the assembly, possibly because some Tories were interested in draining off some Irish Catholic support from the reformers.93 The act tried to force the Halifax magistrates to perform their duties fairly.94 It required that the March General Sessions in Halifax appoint five magistrates (rather than three under the previous jury law) to create, with the assistance of the sheriff, a list of eligible jurors. While the 1838 jury act allowed the sheriff and prothonotary to jointly ballot for the grand jurors, the new act required one of the justices of the Supreme Court to draw the names. Borrowing from English practice, a new provision also required that the grand jury list be posted on the door of the county courthouse for at least ten days to allow people to notice and report omissions or errors. As a further check, a newspaper advertisement was to indicate publicly the time and place of a special sessions to examine and, if necessary, amend the grand jury list. The five selecting magistrates and the sheriff had to attend this special sessions and answer under oath any questions posed to them by other magistrates.95

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The public outcry and the new act resulted in the careful creation of a new, and greatly expanded, grand jury list for Halifax in 1845.96 Included in this expanded list of potential jurors were not only more Irish Catholics and reformers, but also some black Nova Scotians; indeed, over the next several years a number of blacks served as jurors in Halifax. Reformers took credit for this. In a January 1846 debate in the assembly, Joseph Howe reported that some people had objected ‘to coloured people appearing on the juries,’ though he personally said that ‘he was glad of it,’ for he believed that some blacks ‘not only possessed the property qualification, but the intelligence and moral conduct a juror should possess.’ William Young also supported the practice. He told the assembly that he ‘rejoiced to see that in these Colonies we had risen above the common prejudices by allowing men of colour to remain upon the list, and he was perfectly satisfied there was not a man in the House who would oppose that privilege.’97 These public pronouncements reflected the peculiar position of blacks in the colony at mid century. Nova Scotia’s black community made concerted efforts to engage the political system in the 1840s. Although only a small voting block, black Nova Scotians had both Tories and reformers pursuing their ballots. Tory leader James W. Johnston claimed to be a friend of the black community, and indeed, it was under his government that the 1845 act passed. On the other hand, reformers tried to ensure that black Nova Scotians understood that it was their calls for reform which had resulted in the 1845 legislation.98 The legislature chose to extend many of the innovations in the 1845 Halifax jury law to the rest of the colony in 1846. Attorney General Johnston expressed concern over the special treatment Halifax had received in the 1845 act. He believed that every county should have the right to implement similar provisions.99 The 1846 act included several changes to jury selection outside Halifax. The committees of magistrates in each county or district increased from three members to between five and ten – the General Sessions in each county or district determined the exact number. A copy of the jury list was to be posted in the office of the clerk of the peace to allow for inspection by any person. The lists could then be corrected at any General Sessions. As in Halifax, the jury lists had to be updated once every three years, or sooner, as directed by the General Sessions.100 The new act still did not compensate magistrates. The battle over jury selection in the first half of the 1840s fought between reformers and Tories reflected the extent to which the jury became entwined in mid-nineteenth-century political blood sport. It was

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more than ‘sport,’ however, for reputations, political power, and careers hung in the balance. Faced by fierce public criticism of the jury system, political leaders sought to repair the reputation of juries by amending jury selection procedures, for, when combined with the general distaste for jury service, the politicization of juries risked permanently weakening the place of juries in the legal culture of Nova Scotia. Conclusion Historian Allan Greer lamented in 1999 that it was ‘difficult today to get anyone interested in the history of democracy.’101 Historians, said Greer, have generally abandoned the study of the nineteenth-century democratic movements. The debates over juries in Nova Scotia preceding the granting of responsible government, however, demonstrate that political and legal events can still teach us much about the operation of the justice system, ideas concerning independence and political parties, state formation, free speech, and the transfer of ethnic tensions across the Atlantic. The jury system came under pressure in this period because of the inability of the Nova Scotia government to implement uniformly more complex jury selection procedures. Nova Scotia’s attempt to have committees of the sheriff and magistrates choose eligible jurors was a well-intentioned attempt to employ traditional administrative tools – magistrates and sheriffs – in a process that would select jurors in a new, more systematic, and comprehensive way. But, as legislators in Halifax soon found out, unsalaried magistrates and sheriffs could not be trusted to complete these responsibilities. If the state wished to implement a more systematic method of jury selection, more thorough solutions had to be developed. In the short term, legislators solved the problem in 1840 by simply legalizing juries regardless of whether they had been formed properly. These administrative difficulties were quickly followed by complaints of jury packing in Nova Scotia, complaints that risked politicizing the jury. In the first half of the 1840s, the libel trials of William Annand and Richard Nugent became subjects of intense debate, largely because such libel trials helped shape the contours of freedom of the press, and were thus important to whether public opinion would determine government policy. Reformers in Nova Scotia took a special interest in jury selection, and screamed foul when they believed reform newspaper publishers faced packed juries. The jury system thus became

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deeply entwined in politics. Irish Catholic Nova Scotians, aware of the long history of packed juries in Ireland and the recent trial of Daniel O’Connell, felt sure that officials excluded them from the grand jury lists. The 1845 and 1846 jury acts responded to these protests by tinkering with the jury selection process. With the colony increasingly dividing into political camps, however, patronage encouraged men to fight fiercely for one side or the other. Every office would eventually become a spoil for the winner of provincial elections. As a result, the tweaking of the jury system was not a final solution to complaints of bias in the jury system. As will be shown in chapter 5, the jury remained infused with politics in Nova Scotia following the establishment of responsible government, and this would play an important role in the decline of the jury system.

4 Reformers, Rebellion, and the Jury System of Upper Canada

Debates about political parties, the press, the public sphere, responsible government, and jury packing also influenced perceptions of the jury in Upper Canada in the decades before responsible government. In fact, these issues gained prominence even earlier in Upper Canada than they did in Nova Scotia. How juries should be composed became a heated dispute almost as soon as the Upper Canadian reform movement began to take shape in the 1820s. Reformers alleged that Tory sheriffs packed juries to silence opposition. The legal response to the 1837 rebellion, reformers alleged, further demonstrated the willingness of Tories to make the jury a tool of oppression rather than a palladium of liberty. By the late 1820s, rarely a year passed in which a reformminded legislator did not introduce a new bill designed to end jury packing. Tories steadfastly rejected such measures, and debates often spiralled into charges of disloyalty. The prominence of the jury question made some doubt whether juries could serve as impartial decisionmakers. The Jury, Reformers, and the Public Sphere The discretion of sheriffs in determining the composition of the petit jury panels and the grand jury led to many complaints about packed juries in Upper Canada. As noted in chapter 2, Upper Canada’s sheriffs often chose jurors residing in one area for their own convenience.

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Even if the sheriff meant no harm to any party, choosing jurors from one locale (or even a few) could spark anxieties for litigants facing a jury composed of inhabitants of another area. Commentators also expressed concerns that sheriffs intentionally and maliciously packed juries against specific parties. The appointment and tenure of sheriffs in Upper Canada fed these fears. Each district of Upper Canada had one sheriff, though deputy sheriffs could also be appointed. Unlike in England and Nova Scotia, where sheriffs received one-year appointments that could be renewed, sheriffs in Upper Canada held their positions at the pleasure of the Crown, meaning that they held their positions indefinitely, unless dismissed. As a result, they often served for extended periods. For example, only four men served as the sheriff of the Niagara District between 1800 and 1839.1 In Nova Scotia, the judiciary nominated, or helped to nominate, candidates for sheriff in each county, and from this list the lieutenant governor selected one. In Upper Canada, however, the lieutenant governors prized their right to select sheriffs. Sheriffs had to be extremely loyal; if not, they could be quickly removed. According to David Murray, sheriffs ‘had to be solidly on the side of the British colonial government, maintaining order and avoiding any action that might undermine the established social and political structure of the colony.’2 In 1836, a special committee of the assembly appointed to study the state of the administration of justice made clear the problem with the tenure of sheriffs and jury selection. ‘The Sheriffs are chosen during the pleasure of the Governors of Upper Canada,’ reported the committee, ‘and have very extensive powers entrusted to them by the laws and usage of the Colony, some of which, especially the latitude allowed them in practice in the choosing of Juries,’ were ‘very dangerous to the liberty of the subject.’3 For their part, sheriffs were usually keen to hold the position for as long as possible because of its financial benefits, as noted by an 1840 committee of the assembly appointed to inquire into public departments. It noted that in Upper Canada ‘the appointment is eagerly sought after, and when gained, is considered as a permanent provision for the incumbent.’4 The role of the sheriff in the legal and political structure of the colony led to complaints that sheriffs could, and did, manipulate the composition of juries. Efforts to reform jury selection processes in Upper Canada began in earnest in the mid 1820s, although two legislators made failed attempts to reform juries in the early 1810s. In 1811 and 1812, Benajah Mallory introduced special jury bills,5 and in 1812 Irish-born

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Joseph Willcocks introduced a bill to prevent jury packing in response to several petitions from the Niagara District relating ‘to the dangerous conduct pursued by the Sheriff at that District.’6 After these bills failed, the legislature did not consider another piece of jury legislation until the mid-1820s. Not coincidentally, this renewed interest in jury legislation correlated with the growth of a political reform movement in Upper Canada. In 1824, a considerable number of reform-minded members entered the assembly, and in 1828 a provincial election returned a majority of ‘malcontents and oppositionists’ to the assembly.7 The leaders of the early reform movement possessed diverse backgrounds. John Rolph, a lawyer and physician, represented the mostly American-born population of the western part of the colony. Barnabas Bidwell, a Yale-educated lawyer, had moved to Upper Canada after being accused of misappropriating public funds in Massachusetts. William Warren Baldwin, another lawyer and physician, who had emigrated from Ireland, also became a critic of the Family Compact. His son, Robert Baldwin, shared many of his father’s complaints. These four men frequently consulted with one another in the late 1820s. Another young reformer was William Lyon Mackenzie, a fiery newspaper editor from York.8 Not a party in the modern sense, this disparate group of legislators challenged the Tory leadership of Upper Canada. They sought to break the stranglehold of the ruling elite on patronage appointments and to ensure that the assembly had greater control over spending. They criticized the lieutenant governor’s executive council on the ground that it was not responsible to the assembly, and attacked the legislative council, many members of which came from the executive council. Reformers called for ‘responsible government,’ and were motivated by a strong desire for local self-government. Those who opposed the reformers, Tories (or ‘Conservatives’ as they became known), tended to defend traditional English cultural, political, and legal institutions. They publicly opposed the establishment of political parties because, as Carol Wilton notes, they ‘were accustomed to equating domestic opposition with rebellion and revolution.’9 However, in truth, the Tories acted much like a party, all the while asserting themselves to be above politics. They pursued their own political goals while claiming to function as impartial administers in the King’s government.10 The revision of the colony’s jury laws became a consistent demand of the advocates of responsible government. Controversy and charges of political partiality scarred the justice system during the 1820s.11 Re-

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formers thus called for a variety of reforms, such as abolishing imprisonment for debt, making the administration of justice cheaper and less partial, and altering the colony’s jury laws. In 1828, over 1,600 people signed a petition concerning the misrule of the provincial administration; they urged that ‘our present jury system be amended by a new law, whereby the jurors to be impanneled [sic] may be more equally selected from the country and less at the mere nomination of the sheriff or his officers.’12 As the petition suggested, jury selection was intertwined with the growing assumption that the people, not cliques, should hold power.13 A further illustration of the emphasis placed on jury reform by reformers was provided by the Canadian Alliance Society. Founded in York in 1834, the Alliance Society had William Lyon Mackenzie as its secretary.14 This group demanded responsible government, and, among its list of demands, was the reform of the jury laws. The Society established branch societies, so when a new branch was formed in Lloydtown, in the Township of King in 1835, it immediately passed ten resolutions, including a resolution that ‘trial by jury, our dearest right, should never be contaminated by undue influence.’15 Mackenzie, in fact, consistently mentioned jury reform as an important plank of the reform platform.16 In the late 1840s, the reform-minded Toronto Globe also emphasized the importance of jury reform by listing it among the ‘questions of urgent importance to the body politic’ that also included free trade, post office reform, the clergy reserves, charters for railroad, mining, and telegraph companies, judicial reform, and assessment reform.17 As in Nova Scotia, the reformers’ motivation for revising the jury laws was to secure freedom for their presses so that they could criticize the colony’s Tory leadership.18 Tories responded to reformers by branding them advocates of party government.19 Reformers pointed to several famous trials as evidence of the need for the revision of jury selection procedures in Upper Canada. Particularly important were the trials of Robert Gourlay and Francis Collins. Gourlay, a Scottish radical active in England, arrived in Upper Canada in 1817, and soon began attacking the Family Compact. In August 1818, two juries considered seditious libel charges levelled against Gourlay for comments he had made in the press and in public speeches. In his first trial, Gourlay complained that the sheriff had selected jurors only from Kingston, rather than from the entire district. Despite this, the jury acquitted Gourlay. He was tried again in Brockville on slightly different grounds, and was again acquitted. The government was intent on silencing Gourlay, how-

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ever, and it therefore used the Sedition Act of 1804. This statute allowed for the summary trial and then deportation of anyone who engaged in seditious activity or tried to alienate subjects from the government if the accused had not taken an oath of allegiance or had been a resident in the colony for six months. Anyone convicted who refused to leave the colony could be arrested and charged for breach of the deportation order. After his summary conviction, Gourlay refused to leave on the basis of his two earlier acquittals and his belief that he was innocent until determined otherwise by a jury. The government jailed him for eight months in very bad conditions, during which time his health deteriorated. The issue at his third trial was whether Gourlay had failed to comply with the deportation order (Gourlay thought it was whether he had made seditiously libel comments). Heard by a carefully picked jury, Gourlay made a poor defence, and this time the jury found him guilty. He returned to Britain via the United States, and began a lifelong campaign for vindication.20 The Francis Collins affair of 1828 was even more important in shaping attitudes towards juries in Upper Canada. As editor of the reformist Canadian Freeman, Collins had criticized several colonial officials, leading Attorney General John Beverley Robinson to launch four libel proceedings against Collins, two on behalf of Solicitor General Henry John Boulton, one on behalf of Samuel Peters Jarvis, and a fourth responding to an alleged attack on Lieutenant Governor Peregrine Maitland. Collins was acquitted of these charges, but Robinson immediately arraigned him on a criminal libel charge because of comments made by Collins in the course of the preceding cases. This time the jury found Collins guilty of a libel against Robinson, and Collins received a particularly harsh sentence that included one year in jail, a fifty pound fine, and the payment of two sureties totalling 200 pounds to ensure his good behaviour for three years after the end of his sentence.21 Although the British government would ultimately grant Collins clemency, his tribulations became a rallying point for reformers who charged that Attorney General Robinson had maliciously pursued Collins, while leaving unpunished the publishers of Tory newspapers. Collins’ newspaper, the Canadian Freeman, thus asked why it had been ‘the first victim singled out for sacrifice.’22 In comparison to Joseph Howe’s trial in Nova Scotia, the Collins case led commentators to suggest that juries could not be trusted to guarantee the freedom of the press. According to the Canadian Freeman, oppression was only stopped ‘in those happy countries where the Press is free, and

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where juries have virtue and courage enough to keep it so.’23 The newspaper attacked sheriffs and the selection process for juries. The sheriffs, ‘instead of holding their offices as Sheriffs in England do,’ were ‘dependant upon the mere will of the Executive, for the continuance of their emoluments, and must, therefore be devoted to the wishes of the administration. They will, of course, select such Grand and Petty Jurors as the organs of the administration may wish.’ Under this system, an editor of an opposition newspaper ‘stands very little chance for a fair and unprejudiced trial.’24 McNairn argues that the Tories’ instrumental use of seditious libel law, especially in the Collins case, meant that the ‘legal mechanisms regulating the press were brought into irreparable disrepute,’ and that the selective, partisan use of the law undermined its credibility. Tories came to believe, McNairn asserts, that ‘the law’s inability to impose standards of accuracy and civility was all too apparent.’25 For reformers, however, the inability of the law to stifle political debate and opposition was far less obvious. While Francis Collins was the last person to face a criminal charge of libel in Upper Canada, allegations continued that Tories used libel suits in the civil courts to silence critics. In 1837, for example, William Lyon Mackenzie claimed to have thwarted an attempt to pack a trial jury in a libel case in Niagara,26 and in November 1841, the Toronto Examiner warned that there were ‘several indications that at the next Assizes an attempt will be made to get a packed jury, in order to obtain verdicts against the Press.’27 Preventing sheriffs from packing juries thus became a key part of the reform platform. The prosecutions of Gourlay and Collins became powerful symbols that grafted Upper Canadian experience onto the received English jury ideology.28 The reformers, however, accomplished little in the late 1820s and early 1830s, partly because they suffered an electoral defeat in 1830 and partly because the Tory-dominated legislative council refused to approve many jury reform bills. In 1825, for example, Bartholemew Crannell Beardsley brought forward a bill to guard against the corrupt selection of jurors. Elected to the assembly in 1824, Beardsley was a lawyer who had defended War of 1812 prisoners at the Ancaster ‘Bloody Assize’ in the spring of 1814, and had developed a close acquaintance with Mackenzie, with whom he shared a reform impulse. The assembly, however, still lacking a reform majority, refused to pass Beardsley’s bill.29 Assemblyman William Morris, who generally voted along with members of the Family Compact but who never became a member of the group’s inner circle because of his intense Scottish

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nationalism, moved for the appointment of a select committee to consider the laws for summoning jurors. Another jury bill was introduced, though it, too, failed to become law.30 In 1828, the assembly considered additional jury reform bills, but the legislative council prevented them from becoming law.31 What emerged in Upper Canada was an argument between Tories and reformers, in which both groups claimed that their proposals to alter the jury system, or leave it alone, best fulfilled British constitutional traditions. Tories argued that procedural similarities between Upper Canadian and English jury systems meant that the law of Upper Canada reflected English traditions. For example, Attorney General John Beverley Robinson expressed his belief that the Upper Canadian jury selection process was acceptable because it closely mirrored English practice. ‘Our Juries are taken in a manner prescribed by a Statute of the Provincial Legislature, which has existed, without complaint, for 35 years,’ he wrote in 1828. ‘It is the same in principle as that which prevailed in England, under a comparatively modern Statute up to the time of Mr. Peel’s act.’32 Robinson was bending the truth in saying that the jury selection procedures of England and Upper Canada were the ‘same in principle.’ In England before 1825, constables identified eligible jurors. In Upper Canada, this role fell to the district clerk of the peace. Upper Canadian law also lacked many of the procedural protections dictated by English statutes, such as the requirement that jury lists be posted on church doors for three weeks to permit people to notice omissions or errors. The procedures were the same in that the sheriff used his discretion to choose the grand jury and the panel of petit jurors, from which trial jurors would then be drawn. Robert Peel’s 1825 English legislation shifted the role of identifying potential jurors from constable to churchwardens and local overseers of every parish or township in each county, but left the discretion to choose the grand jury and the petit jury panel in the hands of the sheriff.33 Reformers, on the other hand, argued that only truly impartial and representative juries could protect against state oppression. This required new procedures that would remove discretion, improve the quality of jurors, and ensure that jurors were drawn from all parts of each county or district. William Warren Baldwin voiced the reform position in January 1829 by introducing a jury bill.34 Baldwin’s 1829 bill would have introduced a new model of township meetings, and a new way of selecting parish officers and jurors. He advocated the appointment of an officer called the ‘headborough of the Township.’ The most

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novel aspect of the bill was that it would have given townships, under the supervision of their headboroughs, the right to elect jurors to serve each year. Baldwin argued for the necessity of his proposal by pointing to the complaints that officials packed juries. His plan would have allowed inhabitants at township meetings to elect petit jurors – one for every 100 persons in the population. The sheriff would then draw trial jurors from these names. Grand jurors would be elected directly – two grand jurors from each township.35 Baldwin’s 1829 bill thus represented a radical effort to transform juries into more democratically representative bodies. Robinson was less than impressed by Baldwin’s proposal. In fact, he positively hated the idea. Robinson perceived the natural order of society as being unequal and hierarchal, and he feared democratic tyranny.36 He called Baldwin’s plans ‘most novel and extraordinary.’ If changes had to be made to the jury system, he suggested that it would be better to fully imitate Peel’s 1825 jury act. The election of jurors, according to Robinson, was fraught with problems. Robinson argued that Baldwin was a political partisan intent on infecting the court system with politics. The result would be that any artful man – any bar-room orator – any man who from his riches, his politics, or his intrigues, could exercise an influence in his District, over his less intelligent neighbors, if he had an action depending, or if he intended to bring one, would be induced to set in motion the same kind of machinery we see employed in some other cases – he would canvass for Jury men, and circulate his ticket and play the same game in half a dozen Townships, and we should see his friends setting up for Jurymen – a novel sort of election certainly.37

Robinson repeated, this time in public, the claim he had made in 1828, that the Upper Canada jury act had been in place for more than thirty years, and that it was basically the same as the law of England until Peel’s bill. Thus, ‘to talk of it therefore as a monstrous grievance or abuse was nonsense.’38 Despite Robinson’s open opposition to altering the jury system, reformers continued to introduce new jury bills into the 1830s. In 1831, Beardsley brought in another jury bill, but the effort went nowhere, and he moved to New Brunswick in 1832.39 William Lyon Mackenzie kept up the pressure in 1832 in the course of offering arguments to show the expediency of dissolving the legislature. Mackenzie listed various reasons for dissolution, including the operation of juries. He said that the

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legislators had ‘absolutely rejected bills loudly called for by the public voice,’ including proposals ‘for the amendment of the laws under which grand and petit jurors are now returned, the present mode affording ground for suspicion of improper practice and neglect.’40 By the early 1830s, another reformer, Peter Perry, took the lead in efforts to revise Upper Canada’s jury laws. Son of a Loyalist, and an advocate of local control over local affairs, Perry was described as a ‘Parliamentary Bull Dog.’41 Historians have defined him as an egalitarian democrat who expressed loyalty to the British constitution, but who was not adverse to drawing from American legislative models.42 Perry introduced his first jury bill in November 1832.43 His proposal would have ended the sheriff’s discretion in choosing panels of petit jurors, and instead would have given ‘committees’ of local officials responsibility for creating jury lists. Further, it would have required that juries be formed from these lists by balloting.44 Perry seems to have borrowed from the United States the idea that committees of local officials be used to create jury lists.45 The methods developed by the various American states to select potential jurors varied substantially in the nineteenth century, but typically the compilation of jury lists was entrusted to officials other than sheriffs, such as county canvassers, the trustees of townships, council members of wards, other town officials, special boards, county courts, or even specially appointed jury commissioners.46 The practice in New York is illustrative. There, several officials, including the town clerk and assessors of each town, met and created a list of all persons qualified to act as jurors. Clerks of the county drew by ballot jury panels from the jury lists created by the local officials. The clerk certified the names drawn, and gave the panel to the sheriff, who then summoned the jury. At trial, the clerk balloted from the panel for the petit jury.47 In a furious debate in the assembly, opponents and proponents of Perry’s bill considered whether the measure would create impartial and competent jurors. Perry offered several arguments in support of his proposal. He emphasized that the bill would take the discretion for jury selection out of the hands of unelected sheriffs and place it in the hands of the people. Sheriffs would also benefit because the bill would protect against suspicion and critique of their actions. Perry explained that the local assessor and collector should serve on the jury selection committee because in the course of each year they were expected to visit every house in the township, and thus had opportunities to know every person and whether or not they could serve. He argued that his

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bill would ensure that jurors were drawn from all parts of the district, so that no single, well-connected person could dominate his friends and neighbours in the jury room. Perry warned against adopting a system that simply balloted jurors from the whole assessment roll because this would remove all discretion from the selection process. By using local knowledge in combination with a system of balloting, the proposed act would fulfill two goals: it would avoid charges of jury packing and ensure the selection of competent jurors.48 Opponents of Perry’s measure expressed concern over whether the bill proposed a workable system and warned that it endangered the English constitution. William Botsford Jarvis, the Tory sheriff of the Home District, opposed the bill,49 as did Tory Solicitor General Christopher Alexander Hagerman, who believed that township officers were not capable of carrying out jury selection, and could, after all, pack juries just as sheriffs were accused of doing. Attorney General Henry John Boulton also said that the bill violated the spirit of the constitution.50 Lacking sufficient support, the bill failed. Despite the bill’s lack of success, colonial officials acknowledged the wisdom of reform. In February 1833, colonial secretary Lord Goderich commented on the arguments of William Lyon Mackenzie respecting the appointment of grand and petit jurors. Goderich believed that the existing system in Upper Canada was unsatisfactory, and it was thus plain that new legislation was required. He noted that the English jury laws had been altered since the framing of Upper Canada’s jury acts. While the 1825 English act might not fulfill the needs of Upper Canada, he believed that it should be examined.51 Goderich’s suggestion failed to ensure the passage of a new jury act in Upper Canada, however. In December 1833, Perry once again introduced a doomed jury reform bill in the assembly, and Donald Fraser followed with another in early 1834.52 In the 1834 provincial elections, reformers succeeded in wrestling back the control of the assembly they had lost in 1830.53 Perry made another attempt at jury reform in early 1835.54 His bill, like those introduced earlier, would have divested the sheriff of responsibility for selecting jurors, and would have employed township officers to select potential jurors in each township.55 The bill proposed several other innovations to the jury laws, including detailed jury returns, new rules limiting the availability of special juries, and fees for officials burdened with jury selection duties. In debate, Perry pleaded with the assembly to approve his bill despite

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the small chance that the Tory-dominated legislative council would also pass it. He said that if someone wished to claim that the justice system was beyond the suspicion of partiality, then one ‘might as well tell us the moon is made out of green cheese.’ He claimed that nothing compared in importance to passing a new jury bill, a point he attempted to substantiate by pointing to several notorious cases, including those of Gourlay and Collins. While he admitted that officials might still attempt to influence the composition of juries under his scheme, he noted that his bill sought to prevent this by allowing committees to choose potential jurors for the entire year, not just for the next sitting of the court. Another protection was that the jurors would come from all parts of the district. Each township committee would send in a list of men, but the balloting would ultimately take jurors from all the townships in each district. In that way, jurors representing all political stripes would be assured.56 Solicitor General Hagerman responded to Perry by warning that drawing jurors from all parts of a district would force some jurors to travel long distances at substantial cost. He also claimed that the existing Upper Canada jury selection procedure was similar to England’s, a factor recommending that it be maintained.57 Perry’s bill also did not impress the Tory Kingston Chronicle and Gazette, which argued that the ‘whole machinery of the bill is complicated and objectionable.’ The newspaper suggested that the local officials who would administer the jury laws under the statute were ‘frequently the worst qualified’ and susceptible to party influence: ‘If such men are chosen from party motives, either political, religious, or national, will not the same motives influence these men in the selection of Jurors, and what can we expect but the return of men of their own stamp.’58 Despite the criticisms, the 1835 jury bill passed in the assembly by a wide majority – thirty-two to thirteen. As expected, however, the legislative council refused to pass it.59 Perry’s final attempt to remedy the jury system before the 1837 Upper Canada rebellion also failed. In 1836, the assembly again passed a jury bill by a large majority: thirty-one to eleven.60 A select committee of the legislative council prepared a lengthy report on Perry’s bill; this report provides a wonderful window into how Tories thought about the jury, and, more broadly, into Tory attitudes about the capabilities of the colony’s inhabitants to govern themselves. The committee recalled that earlier bills from the assembly had relied strictly on balloting to select jurors. The committee expressed revulsion at the prospect of such a

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system, since any man might become a juror regardless of his capabilities, and thus trial by jury ‘would soon fall into disrepute’: [People] of grossly immoral and intemperate habits, reprobates in their lives and conversation, notorious gamblers or swindlers, grossly offensive in their demeanour, persons whom none of their respectable neighbours would willingly associate with, or would trust in any particular, or even admit into their service, would find their way into the Jury box promiscuously with others, and so would men of weakest intellect, and most perverted understandings – open scoffers at religion – men whom no one that respected his own character could think of selecting as fit to decide upon the lives and fortunes of others.61

Not every man, the committee obviously believed, was capable of serving as a juror. The committee identified five other problems with Perry’s bill. First, it repeated the Tory concern with making jury composition dependent upon the popular will. It worried that the bill introduced ‘the principle of popular election into the constitution of Juries,’ which was ‘an innovation of a kind dangerous to the peace and welfare of the community.’62 Those interested in the outcomes of cases would attempt to influence town officers, while the town officers themselves would promise to select jurors of specific political stripes during elections. As proof of this danger, the committee warned of developments in the United States. During debates about reform in the 1830s, the United States came to epitomize democratic republicanism, and references to the republic to the south were meant to either defend or attack particular proposals or philosophies.63 The committee used the United States as a bogeyman in this case. It suggested that ‘we have seen society in a neighbouring State so divided into parties, as for instance into Masons and Anti-Masons, Abolitionists and Anti-Abolitionists, that the ground of difference discovers itself in every public movement, influences elections and appointments, and pervades the whole social system.’64 To avoid the dangers of party politics, the committee urged legislators to recall the ancient custom of the law, ‘which bids us to look to the King as the fountain of justice,’65 who then administers the law through his officers, including the sheriff. As a Crown officer, the sheriff could be reprimanded by the courts, and the lieutenant governor could dismiss the sheriff if necessary. The committee’s second objection was that the township officers were not the most qualified to select jurors. There was a chance that they were ‘men of rather inferior character,’ who were possibly illit-

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erate.66 Third, the committee objected to the proposed qualifications of jurors. While Upper Canada always had a relatively broad qualification for petit jurors, grand jurors at King’s Bench had, in practice, been taken mostly from the magistrates and militia officers of each district. The bill, however, would allow more humble people to serve as grand (and special) jurors. A grand juror, therefore, ‘might be a day labourer, without education and without property.’67 This concern reflected many Tories’ view that the natural order of society was unequal and hierarchal, and that, according to Robert Fraser, the ‘unequal possession of property conferred upon its owners influence, standing, independence, and a stake in society.’68 Only men of property were thus qualified for jury service. Fourth, the committee expressed concern over the limits placed on special juries, which it said were especially useful when a party feared that the petit jury panel had been packed. Finally, the committee emphasized the difficulty of implementing the proposed jury selection system. Inhabitants from twenty or more townships might have to be summoned by the sheriff, yet the bill failed to provide adequate remuneration to the sheriff. The committee concluded by drawing upon English jury ideology, pleading that the legislature not entertain substantial changes to such a sacred institution, for if there was ‘any one part of our social fabric which above all others, it would be injudicious to subject rashly to the chance of experiments, it is the Trial by Jury – the corner stone of freedom – the best security for order – and the distinguishing boast of Englishmen and their descendents.’69 The committee’s report captured the strongest arguments used against jury reform throughout the 1820s and 1830s. The claims reflected the Tory dislike for extending electoral politics, the belief in elite top-down leadership, and a sense that tried methods were superior to new and experimental procedures. Like many other issues during the 1830s, the debates over jury reform went nowhere. The movement for jury reform in Upper Canada had a similar motivation to the calls for new jury laws in Nova Scotia. Allegations of packed juries in politically motivated libel cases reflected a belief by reformers that Tories had undermined the fairness of the courts in their efforts to silence critical voices. The mixture of politics and the courts risked destroying popular faith in the jury. Reformers responded with proposals meant to repair the jury selection process to prevent packing. Reform was stymied, however, because reformers and Tories held fast to different assumptions about the dangers of democratizing jury selection, the competency of local officials, the impartiality of sheriffs, and the financial viability of reform.

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The 1837 Rebellion and New Allegations of Jury Packing The trials stemming from the 1837 rebellion in Upper Canada led to more allegations of Tory jury packing. In the provincial election of 1836, the reformers lost their majority in the assembly. Many blamed Lieutenant Governor Francis Bond Head for their defeat, for he had openly supported the Tories. Reformers also complained about Upper Canada land policies, such as the requirement that new immigrants buy land rather than receive it by grant, and the practice of selling large tracts of land to speculators cozy with the provincial administration. Another issue was the continued lack of responsibility of the appointed legislative council to the wishes of the elected assembly. Frustration over the failure of reforms led the most radical members of the opposition, including William Lyon Mackenzie, to launch a rebellion in December 1837. The government quickly dispersed Mackenzie’s forces in Toronto, and the participants in an insurrection in the London District. The rebellion led to 885 arrests across the colony. Many rebel leaders, including Mackenzie, fled to the United States, where they launched border raids into Upper Canada in 1838 in the hope of stirring more rebellion. These raids led to the imprisonment of 156 additional persons.70 The government punished the rebellion’s participants by conducting a series of state trials, trials which did nothing to dispel the belief that officials loyal to the government could pack juries in Upper Canada. In preparation for the trials, the government passed measures that strengthened the state’s ability to prosecute by limiting the right of defendants to complain of procedural irregularities. For example, a January 1838 act stipulated that trials did not have to take place where the offence had occurred, and that defendants could not challenge jurors on the ground that they did not come from the district where the offence had been committed.71 Nevertheless, the desire to legitimate the trials led the government to use ‘regular’ trials with juries as long as possible. Upper Canada employed jury trials until the fall of 1838, when the raids from across the American border were deemed serious enough to justify the suspension of some civil authority.72 Even during the period of regular trials, however, officials expressed concern that juries in Upper Canada could not be trusted to convict. This partly explains the passage of the Pardoning Act, which allowed indicted prisoners to petition for a pardon before trial, thus disposing of many cases.73 This permitted the political leadership of Upper Canada to meet the British government’s requirement that the rebels receive lenient treatment and ensured that juries held many defendants guilty.74

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Jury selection was often contentious in the cases that did go to trial. Paul Romney and Barry Wright argue that at the Toronto treason trials in March to May 1838, the government was intent on improving its public image by ‘appearing to act in conformity to the rule of law and by tempering justice with mercy.’75 They nevertheless conclude that there were irregularities in the twelve cases that went to trial, seven of which resulted in convictions. The sheriff used his discretion to select an eighty-member jury panel for the Toronto state trials that consisted of many Tories who tended to favour the Crown. Of the twenty-seven jurors who can be identified as serving, Romney and Wright found no reformers, and the overall religious and occupational composition of the jurors suggested a pro-Tory bias. This bias was evident despite the defendants’ extensive use of challenges to remove those they believed to be the most partial.76 The fact that five of twelve defendants who went to trial in Toronto received acquittals belies the view that these juries were packed, but the perception nevertheless remained that the sheriff had acted unfairly. William Lyon Mackenzie later condemned the jury that convicted one defendant, John Montgomery, as a ‘mock jury selected of the basest, most dependant tories’ who were ‘picked up by the sheriff at [Christopher Alexander] Hagerman’s order, through the city.’77 After being convicted of treason, Irish-born Edward Alexander Theller called his jury ‘a packed jury of tories,’78 and, in his memoirs, Charles Durand denounced his jury as ‘packed.’79 The trials in the summer of 1838 in western Upper Canada in Niagara, Hamilton, and London resulted in a smaller percentage of convictions, but more charges of jury packing. In Hamilton, juries convicted only ten of twenty-seven charged, while in London juries found guilty only six of fifteen. Prosecutors had a little more success in Niagara, where juries deemed guilty ten of sixteen defendants. Despite the acquittals, these trials still raised concerns over the composition of juries, and defendants made ample use of challenges. Thus, after the conviction of Alvaro Ladd, a merchant from Delaware, his sister-in-law, Jane O’Brien, charged that Ladd had been ‘convicted by a packed and partial Jury.’80 Subsequent trials of aliens by courts martial in London and Kingston in late 1838 meant that defendants had their cases heard by panels of military and militia officers.81 The allegations of jury packing in Upper Canada after the rebellions damaged the reputation of the jury and strengthened the concerns of reformers that Upper Canada’s elite were willing to pack juries in

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political trials. Upper Canadians were also exposed to fierce doubts about juries being expressed in Lower Canada. During and after the rebellions in Lower Canada in 1837 and 1838, Lower Canadian officials quickly suspended trial by jury, replacing regular trials using juries with courts martial. The acquittal of four men for the murder of Joseph Armand Chartrand was a pivotal case in destroying faith in Lower Canada juries.82 A former patriote, Chartrand had joined the militia against the French rebels. A jury composed wholly of Canadiens acquitted the four men accused of shooting Chartrand to death. Lord Durham concluded in September 1838 that the acquittal was certain, ‘however strong the evidence of their guilt.’83 The Upper Canadian press took note. For example, the Western Herald of Windsor reprinted an article from the Montreal Herald which stated that the ‘result of the trial of the four murderers of the ill-fated Chartrand, must now carry conviction to the minds of the most sceptical, that trial by jury in this Province, is neither more nor less than a solemn farce, an impious mockery of an oath, and a blasphemous insult to Almighty God.’84 Upper Canadians also commented on Lord Durham’s analysis of the problems of juries in Lower Canada, which featured prominently in Durham’s 1839 report on the state of affairs in the Canadas. Janet Ajzenstat argues that the Durham Report was a product of his liberal sensibilities.85 Durham emphasized equality and individual rights, and he believed that biases in the jury system of Lower Canada threatened equal treatment. He suggested that the French and English rarely interacted in public affairs. The jury box was one exception, but not a good one, as ‘they meet there only to the utter obstruction of justice.’86 Upper Canadians took note of Durham’s stinging attack on the jury system of Lower Canada, and many considered his words in arguing for reforms in Upper Canada. The view that juries were unreliable because of their ethnic composition found its way into the press of Upper Canada.87 At a public meeting at Kingston in 1838, in which debate focused on the jury system, one speaker asked rhetorically whether there was any person who would not benefit from a new act that would ‘preserve to Englishmen, inviolate and untainted, their boasted and invaluable institution, Trial by Jury, and not expose it any longer to be tampered with and disgraced by the prejudices, ignorance, and stupidity of a debased and disaffected people.’ The trial of Chartrand loomed large: ‘Who would recur to the acquittal of the fool murderers of the honest and loyal Chartrand without feeling his blood involuntarily curl in his veins, – without feeling that the institution of trial by Jury has been de-

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based to an absolute mockery of justice and common sense.’88 The state trials in Upper and Lower Canada and Lord Durham’s report thus only inflamed complaints about juries in the Canadas. Like the allegations of the exclusion of Irish Catholics from juries in Nova Scotia, cases such as the Chartrand trial suggested the challenges of using the jury system in an ethnically and/or religiously heterogeneous society. Reformers remained interested in repairing the jury system, but no new legislation would be passed until 1850. The 1840 Act of Union combined Lower and Upper Canada into the United Province of Canada, though the court systems of the two colonies remained separate.89 The elected assembly remained a relatively powerless body. The governor named the members of the executive council and selected the members of the legislative council with the approval of the colonial office. Moderate reformers from both Upper and Lower Canada joined forces under the leadership of Robert Baldwin, Francis Hincks, and Louis-Hippolyte La Fontaine; together, they controlled the assembly in the early and late 1840s, and introduced several jury bills. A short-lived reform ministry held power in the assembly in 1842 and 1843. Given the importance reformers had placed on jury reform, it was unsurprising that Attorney General Robert Baldwin introduced a jury bill in 1843.90 A copy of the bill has not survived, but debates over the measure indicate that Baldwin wanted to end allegations of jury packing, select high quality jurors, and keep the qualification for jury service as low as possible, ‘in order to bring the mass of the population into our law courts, by rendering them competent to sit as jurymen,’ for he felt convinced that this ‘would imbibe a greater respect for our institutions.’91 Baldwin’s resignation with other reform leaders in November 1843 meant the suspension of his attempt to implement a new jury law. He was returned to the assembly in elections in September 1844, though the reformers found themselves reduced to a rump.92 As a result, efforts to alter jury selection procedures stopped until after responsible government was achieved in the late 1840s. Conclusion On the eve of responsible government, the debate over the Upper Canada jury system had grown into an intractable dispute between reformers and Tories. The 1794 jury act established a system of jury selection similar to, but simpler than, contemporary English practice. As in England, sheriffs chose panels of petit jurors and selected the members

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of grand juries, practices made contentious because the sheriffs were wholly under the thumb of Upper Canada’s lieutenant governor. Early reform efforts took several forms, but all were meant to limit the discretion of sheriffs. Although some bills passed by large majorities in the assembly, the legislative council was intent on preventing changes to the system. Reformers had little success in achieving new jury legislation, but they nevertheless remained incredibly persistent in pursuing such a measure. In part, this tenaciousness is explained by the importance of juries in protecting newspaper publishers from libel charges during a period of expansion and politicization in the colonial press. Informed public debate required a free press, and reform publishers were reliant on friendly juries to avoid libel convictions. How juries were chosen thus became a vital question. The fact that the jury issue served to unify reformers may also help explain this persistence. With the rise of a reform movement in Upper Canada in the 1820s, nascent political parties began to establish themselves, despite the fact that party government was traditionally ‘tarred with the brush of disloyalty to the mother country.’93 The Tory leaders of the colony were vulnerable to critiques concerning jury selection, regardless of whether they actually packed juries,94 and thus reform legislators could safely introduce a jury bill doomed for failure each year knowing that this ultimate failure could be trumpeted as another example of Tory obstinacy.95 The Tory leadership of Upper Canada refused to pass new jury legislation for a number of reasons. At times, they articulated principled arguments against altering jury selection. They asserted, probably correctly, that using elections to choose jurors would politicize the courts. They also noted, correctly, that implementing the elaborate jury selection systems suggested by reformers would prove costly for governments and inconvenient for jurors. Other concerns of Tories, including worries about the competence of jurors chosen by chance and the competence of local officials, reflected the elitism of Upper Canadian Toryism. The argument that sheriffs were servants of the Crown, and thus above suspicion in jury selection, either suggested a sincere belief that the Crown acted in the interests of all people, not one party, or was an attempt to concoct a principled reason for keeping jury selection under the indirect control of the Family Compact. In the heated political climate of pre-rebellion Upper Canada, both reform and Tory politicians were forceful advocates of traditional English jury ideology. Reformers and Tories believed that they sought to

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protect British justice, including the jury.96 The reformers urged jury reform to defend the right to be heard by impartial, representative jurors; Tories fought statutory changes on the ground that jury selection had to remain procedurally similar to the process in England. In the context of the growing critical press, the emerging public sphere, and strengthening political parties, juries were thus very much on the minds of elite Upper Canadians. As will be shown in chapter 6, reformers would, ultimately, alter the jury selection system of Upper Canada through the passage of the complex 1850 jury act. While this legislation would help end allegations of jury packing, it would also create new problems for the continued use of juries in Upper Canada. As well, the very achievement of responsible government meant that many people would come to believe that the ancient protections afforded by juries against state oppression were no longer necessary when the elected representatives of the people, not an unelected elite, held power.

PART TWO Responsible Government and the Jury, 1848–1867

Nova Scotia and Upper Canada both achieved responsible government in the late 1840s. The victors in provincial elections henceforth wielded considerable power. In Upper Canada, responsible government allowed reformers to implement the jury reforms for which they had long called. Substantial reforms would also occur in Nova Scotia after 1848. Rather than ‘fix’ the jury, however, these reforms would contribute to the decline of the jury. Reformers in Nova Scotia created new jury selection procedures, but the jury system continued to be stained by allegations of jury packing, although Tories, not reformers, voiced the post-responsible government charges of unfairness. In Upper Canada, reformers used their new found power to create complex and bureaucratic new jury selection procedures designed to prevent packing, but, in doing so, aggravated complaints about the cost of juries and the inconvenience of jury service. As well, responsible government ended much of the perceived need for jury reform, or even the jury itself, as reformers suggested that the idea of the jury as a palladium of liberty was anachronistic in a democratic age in which citizens had no reason to fear potentially despotic governments. As Confederation approached, the jury also came under assault in Nova Scotia and Upper Canada because of the growing hegemony of liberal thought – a way of understanding society and legal decision-making very much at odds with juries.

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5 Responsible Government, the Magistrates’ Affair, and the Breakdown of the Nova Scotia Jury System

Nova Scotia continued to struggle with allegations that politics affected jury selection after the granting of responsible government. In response to complaints by reformers (increasingly referred to as Liberals) and Irish Catholics of biased juries, Nova Scotia passed several new jury laws, although these reforms would not end allegations of packed juries. The problem, in fact, worsened, although Tories replaced reformers as the critics of jury selection. In 1853, the jury system cracked under the pressure of the emerging modern political parties of Nova Scotia. The entrenchment of party politics, along with continuing ethnic battles, ensured that jury selection continued to be contentious. These complaints helped undermine peoples’ faith in juries. Accusations that politics affected the composition of grand juries also contributed to the legislative efforts in the 1850s to implement municipal reforms that would have reduced the role of grand juries throughout the province. While these reforms were unsuccessful in the 1850s, the debates over municipal reform demonstrated how the calls for local control over local affairs, as proponents of responsible government advocated, set the stage for the eventual decline in the grand jury’s role in local government in most of Nova Scotia in the 1870s. In the late 1850s, critics of juries also began, for the first time, to employ the language of liberalism in arguing that juries were expensive, slow, unrepresentative, and, of course, susceptible to the influences of ethnicity and party. The late 1850s and 1860s thus witnessed the begin-

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nings of an unprecedented assault on the colony’s jury systems that further eroded Nova Scotians’ adherence to the ‘palladium of liberty.’ In the short term, criticisms resulted in the 1856 jury act, which was designed to make juries more palatable to liberal thinking. After Confederation, however, growing liberal criticisms would play a major role in reducing the use of juries. Responsible Government and the ‘Magistrates’ Affair’ The granting of responsible government in early 1848 allowed a reform administration to come to power in Nova Scotia under the leadership of James Boyle Uniacke. Among the issues it had to tackle was the continued failure of jury legislation to work properly. The 1845 and 1846 legislation designed to end allegations of jury packing had failed to eliminate procedural problems in jury selection.1 As a result, in 1848 a new, province-wide jury act attempted to address jury selection issues. According to David Sutherland, the reformers in 1848 were, despite some radical rhetoric, ‘a party of the political centre, led by members of Halifax’s propertied middle class who desired to modify rather than overthrow existing economic and social relationships in the community.’2 The jury bill passed in 1848 substantiates that characterization. The act created a uniform set of jury selection procedures across the province, and contained several measures meant to guarantee that officials completed their jury selection duties. The act used committees of five magistrates to create lists of eligible trial and grand jurors, though it removed sheriffs from the committees. To increase accuracy, the lists had to include the place of residence and trade of each potential juror, as well as indicate whether potential jurors had ‘senior’ or ‘junior’ attached to their names. In addition, the magistrates were to update the lists every year, rather than every three years, as in the past.3 Despite the new provisions designed to ensure the accuracy of jury lists, the system in Nova Scotia continued to flounder as jury selection became even more contentious than it had been in the early 1840s. Problems stemmed largely from the pressure placed on the justice system by responsible government and the entrenchment of political parties. The ‘magistrates’ affair’ epitomized the troubles posed by the new role of political parties. The new reform administration that came to power in Nova Scotia with the granting of responsible government decided to balance the political membership of the magistracy, and to reward party loyalists, by adding many reform magistrates. The government

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dismissed more than 100 magistrates and replaced them with 300 others, many of whom were reformers.4 For example, in 1847 and 1848 Cumberland County had approximately fifty magistrates. By 1850, the government had retained thirty-five of the old justices and appointed twenty-five new ones.5 This began a trend in which each successive government sought to ‘rebalance’ the proportion of magistrates in each county in its favour. As a result, the number of magistrates increased greatly. In Antigonish County, for example, there were thirty-one magistrates in 1848, but by 1860 the number had risen to at least sixty.6 The removal of Conservative magistrates created considerable outrage. Dismissed magistrates sent numerous petitions outlining their complaints.7 After being informed of the dismissals, the British Colonial Secretary, Lord Grey, issued a stern warning to Lieutenant Governor John Harvey, telling him that appointments to the magistracy ‘should be as little as possible influenced by the struggles of parties.’ Grey threatened Harvey, warning that if it proved correct that he had made appointments on the basis of party it would ‘be my painful duty to advise her majesty to visit your conduct with her marked disapprobation.’ Harvey was forced to explain in detail to Grey how magistrates had been appointed. He offered a county-by-county breakdown, admitting that in five of seventeen counties he had taken his council’s advice and appointed magistrates, and dismissed others, to make the magistracy in those counties better represent the political affiliation of a preponderance of their inhabitants. Harvey defended this on the ground that the achievement of responsible government was ‘like a change in the constitution.’ Since reformers had been in the minority of the magistracy in the five counties, they were ‘powerless and hopeless minorities in the sessions,’ and thus ‘the administration of local affairs’ was ‘permanently secured to their opponents.’8 Grey eventually accepted Harvey’s explanation, although Harvey had to reappoint several of the dismissed magistrates.9 The magistrates’ affair demonstrated the extent to which the Liberals attempted to create a modern political party in Nova Scotia by rewarding party loyalists with patronage appointments. The negative view of parties in Nova Scotia discussed in chapter 3 persisted in some quarters well into mid century.10 For example, before an election in 1851, the Conservative Halifax British Colonist implored voters to ‘sink party spirit altogether, and to pick out the best men.’ ‘Nothing can prosper under a strict party government,’ the paper argued.11 This was becoming the minority view, however, and, as the province divided into two politi-

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cal camps, patronage served as the carrot and stick of party politics, encouraging people to fight fiercely for one side or the other. Howe, for example, thought that responsible government entailed placing patronage and spending powers in the hands of the party possessing the support of the assembly and the electorate. Patronage, he believed, should reflect the wishes of the population.12 Every office thus became part of the spoils for the winner of provincial elections. ‘Party control over patronage was an inevitable concomitant of Party government,’13 concludes Phillip Buckner. Confrontational political life continued to seep its way into the justice system, and the doling out of patronage following the achievement of responsible government placed even greater stress on the jury system. With the appointment of many reform magistrates, Conservatives and Liberals suddenly reversed their roles in complaining about jury selection, with Tories suggesting that Liberal magistrates had left the names of qualified Tories off the lists of eligible jurors. For example, the Conservative press railed against the jury selection process in an 1848 action for libel, in which prominent Liberal druggist J.D.B. Fraser of Pictou sued lawyer, and future Conservative Attorney General, Martin Wilkins for a letter published in the Morning Post. Wilkins had alleged that Fraser failed to pay a debt, sold liquor from his shop despite a pledge of temperance, and lied to a committee of the assembly concerning the 1845 by-election in Pictou. In the 1845 by-election, Fraser had run as a reform candidate, while Wilkins entered as a Tory. This wild contest saw the erection of a ten-foot high fence to separate the competing parties, though a riot occurred nevertheless.14 The Conservative British Colonist charged that the majority of the special jurors hearing the case were radical reformers, ‘feeling but little sympathy, to say the least, with the defendant.’ The paper asserted that it would have liked to publish Wilkins’ letter, but it feared that it too would be sued and tried ‘by a Radical jury,’ with the result that it ‘would have to sell our printing establishment for the purpose of enriching the plaintiff’s coffers.’15 Suddenly it was a Tory publisher that feared he would be silenced. Such complaints led members of the assembly to consider the capabilities and responsibilities of magistrates and to think about whether magistrates should be paid for their role in the jury selection system. In January 1850, Conservative James W. Johnston complained that magistrates did not complete their statutory duties to create jury lists because it was a very onerous, and an unpaid, requirement.16 In March 1851,

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William Young, a prominent reformer, said that the ‘criminal jurisprudence of the country depended on the proper preparing of the jury lists,’ but that there was ‘not a correct list in any county in the province.’17 He suggested that the work had not been done for a few years, and he wanted to see the magistrates get paid for the duty. Young’s suggestion went nowhere. Moderate Tory Stephen Fulton of Cumberland County refuted the idea that jury work was extra labour for magistrates. Other members said that the decision whether to pay the committees of magistrates should be left to the grand juries and General Sessions.18 The unwillingness of the legislature to pay magistrates for their work in jury selection underscored the weakness of the state in Nova Scotia, and helped encourage intentional, or unintentional, mistakes in the jury selection process. Nor were magistrates encouraged to complete their duties impartially by the legislature’s 1850 decision, despite objections,19 to declare the jury lists compiled by magistrates to be ‘legally made up, returned, and drawn,’ regardless of whether the magistrates had designated the place and trade of potential jurors or whether they were senior or junior.20 The failure of the Liberal-dominated assembly to ensure impartial juries soon resulted in a chorus of charges by Tories that juries were packed with Liberal supporters. In 1853, the Conservative British Colonist turned much of its attention to juries and magistrates. ‘Candidus’ critiqued Liberals in February 1853 who, ‘in order to make themselves the centre of all the hopes and fears of their friends and opponents’ had ‘turned every office in the country into a political one.’ Magistrates ‘must be political and in their opinions they must not differ the shadow of a shade from their patrons.’ This trend had a direct effect on the jury system, the newspaper asserted. Trial by jury was ‘rendered worse than a mockery and a snare, by the new mode introduced of packing juries by Committees of political Justices.’21 In March, the British Colonist criticized reformers, especially William Young, saying that the ‘people find with pain and indignation, that the trial by jury, once the best bulwark of their liberties, has become under a so called liberal government, the worst tribunal that can possibly be conceived.’ How bad was the situation? The British Colonist argued that when the selection of petit juries was ‘indirectly in the hands of the Executive Government,’ it was ‘not at all surprising that on the simplest statements of facts, juries at times should be found disagreeing, and at other times finding verdicts directly contrary to evidence.’22 Such allegations of the politicization of juries reached a fever pitch

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when it became apparent later in 1853 that the committee of magistrates in Cumberland County had failed to fully complete the county’s jury lists. The lists did not include descriptions of the calling and residence of each juror, or whether they were ‘junior’ or ‘senior.’ As a result, ‘Watch’ wrote in the British Colonist that there was ‘nothing in fact to distinguish Tom Jones the elder of Frogtown, from Tom Jones the younger of Shad Creek, or Jack the Miller from Jack the top Sawyer.’ This was one of the methods used by the Liberal magistrates to exclude qualified Conservatives from juries, the newspaper charged. The failure of the magistrates received special attention because one of the cases heard in Amherst in 1853 was a high profile libel charge levelled by Robert Barry Dickey against Liberal newspaper publisher Richard Nugent, the reformer who had been forced to sell the Novascotian in the 1840s because of libel suits. When the Supreme Court at Amherst realized the problems in the jury lists, it stopped its term prematurely to consider the issue. ‘Watch’ warned that this type of problem in jury selection might not be limited to Cumberland County: ‘Let every man throughout Nova Scotia who values pure tribunals and impartial justice, look to the matter without a moment’s delay. Examine your jury lists,’ Watch pleaded.23 As the reformers had done in the mid-1840s, Conservatives drew upon traditional English jury ideology to express their outrage, and warned that jury packing risked irreparable damage to the jury as an institution. For example, the British Colonist declared that ‘all confidence is lost in that palladium of British liberty, trial by jury,’ and that unless ‘this sacred tribunal be kept free from even the suspicion of unfairness, who, in the present state of the Magistracy, can feel his rights, his liberty, or even his life secure?’24 One magistrate, Joshua Huestis, was said to have been responsible for the jury lists in Pugwash and Wallace in Cumberland County, and the British Colonist charged that he had marked as disqualified those who were ‘worth more pounds than he is worth shillings’ and left off prominent Conservative inhabitants of Pugwash.25 Dickey decided to pursue a criminal information against Huestis, using as evidence numerous affidavits from people qualified to serve as jurors who were not placed on the jury lists.26 The Liberal press defended the appointment of the new magistrates, and charged that Dickey had complained of packed juries only because he believed he could not win in a fair trial.27 When the Supreme Court began sitting in Amherst in June, the Novascotian had initially lamented that the jury would almost certainly be packed with Conservatives.28 It

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noted that many libel proceedings against the Liberal press had been launched in Cumberland County. This was because with ‘a jury as would come out of a bean box, the Liberals of Cumberland had about as much chance of fair play as a sheep would have with a jungle tiger.’29 Things had changed, however. The election of a Liberal government had resulted in the appointment of new magistrates and the addition of hundreds of names to the jury lists. The Novascotian soon admitted that party politics had been brought to bear on the jury system. The ‘organizing of the liberal party under the able leadership of Mr. Howe and the equal representation of that party on the Bench by the appointment of new Magistrates’ ensured ‘to the liberals, formerly excluded, a fair share of representation on the juries.’30 For the Novascotian, this was to be celebrated, not decried. Although the Supreme Court suspended its June term in Amherst when it discovered the irregularities, it had already disposed of some cases, and in Halifax in July 1853 the Supreme Court had to decide whether the jury panels should be quashed and decisions overturned. It quashed juries in The Queen v. Patterson and Dickey v. Nugent. However, in considering three other cases, the Supreme Court said that it appeared no injustice had been done and thus that the decisions should stand. The judges also considered the application for a criminal information against Joshua Huestis. The Court refused this on the ground that the application was too late.31 One of the cases in which the Supreme Court did not quash the jury was Seaman v. Campbell. The Court’s reasoning provides an opportunity to see the details of the jury selection problems and to understand the judges’ views, at least their public ones, on this type of issue. Seaman v. Campbell was an action of ejectment in Amherst in the June term before Justice Edmund Murray Dodd and a petit jury, which found for the defendant, Campbell. The defects in the jury list were discovered and brought to the court’s attention subsequent to the trial. Prominent Tories James W. Johnston and Alexander Stewart represented the plaintiff before the Supreme Court in Halifax. They argued that many qualified persons in Cumberland County had not been identified as eligible for jury duty, and that the jury act’s requirements that the details of potential jurors (such as places of residence, trades, etc.) had not been recorded. Johnston laid out the rationale for the legislative scheme. The distinctive characteristics of the potential jurors had to be included in the jury lists to ‘prevent the Sheriff from exercising a power of selection, and from choosing different persons

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from those intended, which he might do in many cases if the names were not distinguished.’32 In replying for the defence, Jonathan McCully focused on the impossibility of creating jury lists containing the names of every possible juror. Implicit in McCully’s argument was a warning that the justice system would be brought to a standstill if the Court overturned the jury’s decision: ‘If every qualified name must be on the lists, we never can have a qualified Jury because parties are continually coming of age, and otherwise become qualified.’33 Stewart replied to McCully; he introduced O’Connell’s case into the proceedings, and claimed that the failure to complete the lists accurately constituted ‘a patent defect affecting the validity of every proceeding.’ ‘This was no Jury,’ he declared.34 The judges of the Supreme Court upheld the verdict, however. Chief Justice Brenton Halliburton reasoned that the objection to the jury lists should have come before the trial and that the appellant had to demonstrate actual harm to his cause. Here, the plaintiff had waited until after the case was decided and could not demonstrate any damage. Further, there were practical considerations, for the ‘labor, expense, and anxiety of a trial has been sustained by the parties,’ and Halliburton could not see ‘any reason why that should be again gone through, when the verdicts are not complained of, because the magistrates whose duty it was to return the Jury lists have not done so.’35 In agreeing with Halliburton, Justice William Blowers Bliss drew from McCully’s arguments in emphasizing the danger of overturning the jury. ‘If we were to lay down a rule, that when a cause has been tried by an irregular Jury, the verdict is of course, irregular, and must be set aside,’ then, he warned, ‘we would empty the Penitentiary, as there is no time fixed when the objection should be taken, and we might be called on to go back to an infinite period.’36 The judgments in Seaman v. Campbell demonstrate how judges weighed cost and efficiency problems in hearing complaints about jury composition. The publicity surrounding the incomplete jury lists in Cumberland led litigants to question jury lists in Halifax as well. After hearing the Cumberland cases, the Supreme Court in July 1853 had to postpone new business in Halifax because of jury process defects.37 ‘This becomes a matter of most serious concern to suitors,’ pointed out the Acadian Recorder, as well as to prisoners committed for trial who ‘may experience great hardship in consequence.’38 All was not cured by the fall of that year. When the Supreme Court sat in November, young lawyer Robert Grant Haliburton represented Thomas Murphy and John Gordon,

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both of whom had been indicted for murder, and David Parsons and Mary Ann Kennedy, who were charged as accessories before the fact. Haliburton moved to set aside the indictments using an affidavit in which it was claimed that the list of grand jurors failed to contain the residences, occupations, or other distinctive pieces of information of jurors. The court refused to make an immediate decision on whether the indictments should be set aside; instead, it deferred the case until the following April.39 The serious defects in the jury lists of Nova Scotia, and the resulting breakdowns in the justice system, so frustrated Chief Justice Halliburton that he wrote to Lieutenant Governor Sir Gaspard le Marchant on behalf of himself and the other judges of the Supreme Court. Halliburton told the Lieutenant Governor that the judges had ‘met with very serious difficulties in the discharge of their Duties both on the Circuits and in Halifax in consequence of the Grand and Petit Jury Lists not having been made out and returned conformably to the Law.’ As a result, the administration of justice had been ‘almost entirely interrupted throughout the country.’ ‘If some remedy is not provided for this,’ Halliburton warned, ‘similar difficulties may be anticipated during the Spring Sittings and Circuits.’40 The Lieutenant Governor acted on the judge’s concerns. In addressing the assembly at the beginning of the legislative session in January 1854, he said that serious inconvenience had ‘resulted from defects in the law which regulates the selection of jurors, or from the mode in which it has been carried out,’ and thus the legislature should aim to ‘provide for a more certain and speedy administration of justice.’41 Attorney General James Boyle Uniacke then presented a bill to amend the jury laws that was meant to accomplish several goals. First, it declared correct the lists of grand and petit jurors for the next two terms of the Supreme Court, notwithstanding any objections that might be made to the lists because of the omission of names, or lack of information recorded for individual jurors. To help ensure that the magistrate committees completed their duties, the legislature finally agreed to pay the magistrates for this work. The act gave the grand jury in General Sessions the power to provide compensation to the committee members. Each magistrate could receive seven shillings and six pence, plus three pence per mile for travel, and six pence per folio for copies of lists returned by them. In addition to offering these incentives, the legislature also threatened the magistrates. Justices who knowingly placed unqualified persons on the lists or neglected their duty were liable to

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a hefty fine of between ten and fifty pounds.42 Additional legislation addressed another potential problem. The cases in which jury selection had been an issue in the fall of 1853 were being reconsidered in the spring of 1854. For example, in November 1853 the Supreme Court had postponed hearing the Murphy murder case until they could clarify the issue of improper jury selection. This case would go back before the Supreme Court in the spring term. To prevent other litigants from seeking a retrial of their cases, the legislature declared valid all jury panels drawn from jury lists at the last sitting of the Supreme Court, regardless of whether the lists had been illegally made up.43 However, even these statutes did not cure all the ills of the jury selection system. In April 1854, the Supreme Court, in a three to two decision, overturned an indictment for felony by a grand jury in Pictou because the jury lists did not include the jurors’ callings or places of residence. In keeping with their reasoning in Seaman v. Campbell, the justices in the minority – Chief Justice Halliburton and Justice Bliss – said that the indictment should stand. A concern with the efficiency of the courts continued to motivate Halliburton. He warned that judges should not ‘permit unimportant mistakes or omissions,’ to ‘vitiate the whole list, and thereby impede the administration of justice throughout the country.’44 Bliss suggested that the legislature had created a complicated system that was not meant to operate with one hundred per cent accuracy. The jury statute ‘never could have meant to lay down rules of such positive and peremptory obligation, that the breach of them would necessarily cause the whole list to be illegal and void.’ Surely, he said, the legislature did not intend any mistake to ‘be followed by consequences so disastrous to the whole community, as this temporary suspension of the entire administration of justice.’45 Here, the substantial object of the statute had been obtained, Bliss argued, and the Court should not quash the indictment. The judges in the majority, Justices Thomas Chandler Haliburton, Edmond Murray Dodd, and William Frederick DesBarres were less impressed by the argument that the courts should avoid intervening because it would be inconvenient. Haliburton focused on the necessity of compliance with the jury act to prevent political partiality from creeping into the jury selection process. The act made sense to Haliburton, for he could ‘see many reasons in a small country like this, where there are such strong political feelings and so many local jealousies, why the legislature should have desired to give every litigant an opportunity of knowing by what jury he is to be tried.’46 Dodd said that only a

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serious problem would quash an indictment, but that this was such a case. He spent some time discussing how the failure to attach callings and residences could affect the jury selection process. ‘In our Eastern Counties,’ he mused, ‘there are many persons of the same name qualified as jurors which often leads to confusion.’47 Dodd then provided an interesting hypothetical: Let me suppose that the sheriff of the County of Cape Breton were directed to summon John McNeil as a grand juror, without giving him any addition or designation whatever, he might select at least ten of that name within the County – persons qualified to serve as grand jurors – and if so disposed, summon one whose political feelings and opinions, or whose friendships and partialities were for or against a defendant against whom it was known a criminal charge was standing, and thus lend himself to the violation of the law, with scarcely any risk of detection.48

Small failures, like the omission of one name would not cause concern, but whenever an extreme case occurred, such as this one, the courts had to intervene. Justice DesBarres wrote a very short judgment, saying simply that the requirements of the statute have not been complied with, and thus the indictment could not be sustained.49 The breakdown of the jury system in 1853 and 1854 underscored how party politics and patronage could bring the jury system into disrepute. Nova Scotians began to doubt the ability of jurors, when composed of politically engaged men, to try cases impartially. In the future, critics of juries used such episodes to demonstrate that jurors, lacking professional training, could not apply the law equally to all citizens, and that, as a result, juries should be eliminated. The large fines imposed for magistrates who did not complete their obligations under the colony’s jury laws helped limit future complaints of jury packing in Nova Scotia, but did not end allegations that ethnic and religious animosity was carried into the jury box to the frustration of the ends of justice. For example, ethnic and religious tensions resulted in some hung juries, which, in turn, led to complaints that juries were inefficient, slow, and dispensed biased justice. The December 1856 trial of nine Irish navvies for the Gourlay shanty railway riot illustrated this perceived problem. The riot had begun when some Scots taunted a gang of Irish, who responded by trapping the Scots in a shanty and beating them with pick handles. The resulting trials drew together familiar ethnic and political tensions. The Charitable Irish So-

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ciety engaged former Conservative Attorney General James W. Johnston to defend the Irish. Premier and Attorney General William Young, a Liberal, acted as the prosecutor.50 The composition of the jury proved contentious. The Irish defendants challenged four jurors peremptorily, and tried unsuccessfully to challenge more.51 At the end of the trial, the jury, comprised of both Catholics and Protestants, retired to consider the case. After less than two hours of deliberation, they returned and announced that they were divided and could not agree. The judge dismissed the case.52 Two other trials followed, which also resulted in hung juries. These results contributed to Joseph Howe’s famous, and vitriolic, attack on the Irish.53 In a harangue in the assembly in February 1856, Howe complained that Nova Scotians seemed forced to ‘hold their peace when Irishmen commit crimes and compurgate each other’ through jury verdicts.54 Howe, who had employed traditional jury ideology in his 1835 seditious libel case, now portrayed juries as frustrating justice. The trial of James Kennedy for murder in 1856 provided another example of the continuing concerns that ethnic and religious tensions influenced jury decisions. The case arose when an intoxicated Wallace fell asleep at the home of Kennedy, an Irish Catholic. On waking, Wallace accused Kennedy of robbing him of eight pounds. Wallace left the house, but soon returned accompanied by two other men. They broke through the door of Kennedy’s home. Kennedy ran up the stairs, picking up a long frying pan handle on the way. He threw the handle at his attackers, and the point of the handle lodged in Wallace’s skull, killing him. Kennedy surrendered himself and the jury found him guilty of murder, rather than manslaughter.55 The British Colonist blamed the murder verdict on the fact that the jury had been ‘excited by religious rancour and animosity against Catholics.’56 Chief Justice Halliburton was more circumspect in his appeal judgment. He pondered why the jury found murder, rather than manslaughter, as they were normally happy to find in capital cases. ‘Perhaps,’ he mused, ‘they were unconsciously influenced by feelings which cannot at times be prevented from finding their way even into the Jury box, but which it is the duty of a Court cautiously to guard against participating in.’57 The Court believed that the jury should have found manslaughter, and thus recommended a commutation of the sentence. Jury selection in Cumberland County also remained contentious in the late 1850s, though there was less evidence of intentional corruption motivated by political allegiances, as had been alleged in the early

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1850s. In October 1859, the Conservative British Colonist printed an article by ‘One Present,’ which related a recent visit of William Young to Amherst. Upon entering town, Young spoke to his supporters, and ‘as he had to abuse somebody, he elected the Jury, which, last week gave a verdict against J.S. Morse, contrary to the Judge’s charge.’ One Present retorted by suggesting that six of the jurors in the civil case had been Liberals, and they had done ‘what they thought was right and just.’ Nevertheless, the ‘miserable little rascal attacked them and pronounced everything corrupt in Cumberland.’ The author also argued that twelve of the last fifteen grand jurors had been Liberals, despite the large number of Conservative residents, leading the British Colonist to ask, ‘Where was that Bean Box then Billy?’58 a clear reference to reformer complaints about jury selection in the 1840s. While Conservatives in Cumberland claimed that Young had made inappropriate comments about the jury, the British Colonist itself railed against a jury later in 1859. In November, George Preeper sat before a jury, charged with manslaughter for the death of Patrick Hurley. Hurley’s death stemmed, in part, from the hung juries in the Gourlay shanty riot cases. As a result of the failure to find guilty verdicts, the British Colonist reported that Nova Scotia had been ‘convulsed with loud and frequent complaints that life and property were unsafe because Irishmen and Catholics were determined to shield those of their countrymen and creed from the operation of the law.’59 Protestants had thus been incited to violence during the provincial election in May 1859, when, according to the prosecution in the trial of Preeper, a number of Protestant men took loaded guns to their polling places. They insulted voters, provoking a response from Hurley, who was Irish. When Hurley picked up a rock to throw at the armed men, Preeper shot him.60 The grand jury refused to find true bills against all of the armed men, only indicting Preeper for manslaughter. At trial, the prosecution challenged all of the potential Catholic jurors.61 In his lengthy charge to the jury, the judge suggested the appropriateness of a guilty verdict. The jury, however, appeared intent on finding for the defendant. While reading his charge, Justice Lewis Wilkins noticed a lack of interest among the jury in what he was saying. He perceived from their ‘listlessness and indifference’ that some of the jurors did not wish him to continue. When asked, the foreman of the jury said that they felt that they already knew enough about the case. The jury soon returned with a not guilty verdict.62 According to the British Colonist, this was a verdict that ‘covers our country with disgrace – stamps our

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legal tribunals as prostituted into being servile instruments of party – and proves that human life is no longer safe in Nova Scotia!’63 Respect for juries declined even further. Together, the Kennedy and Preeper cases led even staunchly Conservative voices to question the benefits of the jury system. The Conservative British Colonist, for example, said that the cases forced the community to ask ‘whether our country had become so degraded by party spirit and the religious rancour which has been fostered and excited by the pulpits and the press of the opposition’ as to ‘render the hitherto sacred institution Trial by Jury nothing but a mockery.’64 English jury ideology had been dealt another blow in Nova Scotia by political, ethnic, and religious conflict. ‘Trial by jury has been a great safeguard for liberty,’ argued the paper, ‘but we still cannot shut our eyes to the fact that justice, in hundreds of instances, would have been far more impartially administered by an upright individual, than it has been by the voice of nine or twelve men together.’65 This was an astounding claim for a Conservative newspaper. The proposal to replace jury trials with summary proceedings reflected the extent to which the reputation of the jury system had been damaged. Political conflict, and ethnic and religious antipathy, had further undermined public confidence in the jury system. Responsible government brought with it political warfare, increasingly defined by battles between two opposing political parties, parties which often drew upon ethnic and religious distinctions as a means of garnering support and vilifying their enemies. With the jury continuing to be caught up in political and ethnic disputes, the old shibboleths concerning the value of juries lost their power to shape debates about juries. As will be shown, the declining faith in juries helped contribute to the reduced use of juries in Nova Scotia. Liberal Criticisms of Juries The British Colonist’s criticisms were representative of the increasing number of suggestions in the 1850s and 1860s that juries were ‘unprofessional’ bodies that failed to consider relevant facts in making decisions. In part, such criticism resulted from the charges that ethnic, religious, and political considerations affected jury selection and jurors’ verdicts. The battles in Nova Scotia between reformers and Tories, and Catholics and Protestants, to choose two examples, had cast doubt on the ability of jurors to act rationally and prevent partisan feelings from

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shaping their decisions. As the Acadian Recorder observed in 1853, if ‘six Liberals and six Conservatives shall be harangued for six hours by inflammatory political addresses,’ then ‘what hope would there be of a verdict?’66 Criticism of juries, however, also reflected the growing ascendancy of liberal principles in the political and legal discourse of Nova Scotia. According to Daniel Samson, the first half of the nineteenth century witnessed the ‘beginnings of the consolidation of liberal, capitalist modernity in Nova Scotia.’67 Liberalism was a major factor in the rise of so-called legal formalism, also known as ‘rule of law thought,’ in Canada.68 As Canada’s leading legal historian R.C.B. Risk notes, this mode of legal thought was ‘essentially the legal framework of mid-nineteenth century liberalism.’69 Liberalism suggested that justice should be efficient and applied equally to all individuals.70 Liberalism led to calls for legal systematization and the careful defining of ‘scientific’ legal rules that were deemed to be best applied by professional judges and lawyers, not by lay jurors considering community standards to settle disputes or determine guilt. The idea was that law should be depoliticized. This way of thinking about the law became increasingly dominant in the minds of legal professionals over the second half of the nineteenth century. Its key assumptions included a belief that law and policy were distinct issues, such that legal professionals could impartially glean and apply legal principles and rules without considering the implications of their rulings. Liberal criticisms slowly permeated debates about juries in Nova Scotia. Some commentators focused on the inefficiency of juries, suggesting that jury trials consumed too much time. As early as 1847, the Acadian Recorder called for efficiency when it said that it had heard ‘much of the Trial by Jury, its antiquity, its value,’ but that the administration of the law ‘if it can be performed as satisfactorily, would certainly be greatly disencumbered if the presence of Juries can be dispensed with.’71 In part, the complaint that juries were too slow was due to the gradual lengthening of criminal trials. In the second half of the eighteenth century, the criminal courts of Halifax moved quickly through criminal cases. Criminal trials occasionally lasted a full day, but more often they occupied no more than a couple of hours.72 In Nova Scotia in the 1850s, however, the legislature had sought to deal with a backlogged criminal caseload in the counties by holding additional circuits, or by shifting more minor cases to the magistrates.73 ‘The most trifling case that goes to a jury,’ complained the Acadian Recorder, ‘occupies a whole day, and

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not infrequently two; and for important causes, four and six days are quite a fashionable space to occupy.’74 In 1862, the legislature prefaced a statute by commenting on the ‘large arrears of untried Jury Causes at issue in the Supreme Court’ that had accumulated on circuit. The act allowed the presiding judge on circuit to adjourn the court to a future date for additional days if there were a large number of undecided cases.75 Two years later, the assembly debated the slowness of the courts. Prothonotaries’ returns for the fall sittings of the Supreme Court in 1863 demonstrated that the Court had dispensed with only 181 of 381 causes for trial or argument across the province. This led to calls for the more speedy administration of justice, which usually meant summary justice.76 Jurors, of course, did not usually mind being relieved of their duty in the process of creating faster courts.77 The expense of the jury system, caused by the fees paid to jurors and to officials, substantiated the view that juries were inefficient. When jurors failed to agree, commentators noted the wasted time, money, and effort. For example, when the Preeper case ended in a hung jury in 1859, the Acadian Recorder made sure to point out that this constituted a ‘profitable week’s work truly!’78 The cost of special juries was considered especially onerous. It was often charged that parties asked for special juries to slow down litigation, thus draining their opponents of the financial means to continue litigation, or simply to delay judgment. In 1860 and 1863, petitioners from Richmond County complained about the cost of special juries. The magistrates and grand jurors from Richmond County said in 1860 that the sums paid to special jurors each year had become ‘a heavy and grievous Tax upon the rate payers.’ Some causes ‘of little importance’ had cost the county upwards of twenty pounds in juror fees and travel charges, and the magistrates and grand jurors argued that the parties who requested the special juries should bear all of these charges.79 In 1863, the magistrates and grand jurors reiterated their complaint that unnecessary special juries caused ‘a heavy expense on the people,’ and requested legislative changes.80 Jurors also felt that their time was wasted when judges quashed jury verdicts. According to the Halifax Sun and Advertiser in 1866, when a court overturned a jury decision, a juror, summoned from his daily business and required to attend court, as a juror, and listen hour after hour to the conflicting stories of prejudiced witnesses, to the harangues of the ‘Weary lawyers with endless tongues,’ and the pompous charges of the judge, is driven for his only consolation, to the reflection that

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he is assisting in maintaining an old bulwark of civil liberty; but he would be at once shocked and disgusted, were he to stray into court when it is sitting in banco, and observe the number of instances in which verdicts, which he has had the dignity of rendering shortly before, are set aside as ‘perverse.’81

Given the traditional reluctance of many people to serve on juries anyway, the judicial tendency to overturn jury verdicts that deviated from liberal ideas of fairness and equality could only make jury service less popular. The most damning characteristic of juries, liberals suggested, was the inability of juries to apply legal rules consistently. Liberal legal thinking assumed that the perfect juror would have had no prior knowledge of the case or the parties, and would thus be free from any bias that could shape the outcome. This marked a complete reversal from the ideal juror in the medieval period, when jurors were often self-informed. Early English juries were drawn from the locality of the parties. They were often well-acquainted with those involved in a conflict, and often with the dispute itself. This meant that juries were integrated in the community and were knowledgeable about the dispute and its consequences. They were not completely impartial men meant to hear evidence for the first time at trial, but were instead to settle local disputes using their local knowledge. Over time, this local dispute resolution function slipped away.82 Population growth and urbanization reduced the likelihood that jurors knew each other or the parties involved in a dispute. Also, challenging rules gave lawyers the ability to object to jurors with knowledge of the parties or the conflict. By the early nineteenth century, jurors were no longer to know the parties or be wellacquainted with the dispute, but it was still believed that jurors could apply the law in light of the needs and beliefs of local communities. Liberal thinking, however, led Nova Scotians to rail against this local discretion. It led many to doubt whether jurors were suited to the task of legal decision-making. For instance, The Casket of Antigonish argued in 1853 that ‘all proper systems of government and judicial administration are acknowledged to be, or ought to be, directed and controlled by the irresistable force of enlightened Public opinion,’ and it questioned why it was that ‘the salutary accomplishments so essential to a sound legislator, intelligence, discernment, and probity,’ should be totally disregarded in the nomination of the grand and petit juries.83 Nova Scotia’s legal professionals were the foremost proponents of the liberal critique of juries. The number of lawyers in Nova Scotia

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grew substantially in the middle decades of the nineteenth century. This was especially true of the number residing outside of Halifax, which increased from approximately a dozen lawyers in 1820 to seventy-five in 1840.84 These lawyers competed with, and often supplanted, local elites, and, according to Philip Girard, their spread throughout the colony ‘coincided with a shift away from deference, custom and virtue in rural society, and towards equality, legality and accountability as the touchstones of social order.’85 The importance of the expanding legal profession in the decline of the jury was not unique to Nova Scotia, or even to British North America. Lawyers in the United States argued that unelected juries should not cast aside laws enacted by democratic legislatures.86 ‘For those concerned with the law as a coherent system,’ one American commentator notes, ‘the jury was an inconvenience’ that needed to be bypassed.87 Rather than laud the jury for its ability to contradict iniquitous laws, legal professionals argued that juries were repositories of local prejudices. In New Hampshire in the early nineteenth century, for example, lawyers sought to replace an earlier ‘republicanist’ jurisprudence that emphasized common sense and community concerns with a ‘receptionist’ mode of legal analysis that sought consistency and predictability through judge-made law.88 Similar views took hold in England. Conor Hanly concludes that by the end of the 1840s the attitude of the English legal profession towards the civil jury ‘became increasingly hostile.’89 In mid-nineteenth-century England, jury discretion, according to Thomas Andrew Green, was ‘viewed as potentially undemocratic, and as a threat to the subject’s right to be tried by a law that was certain and predictable.’90 It is thus unsurprising that the judiciary of Nova Scotia increasingly expressed in liberal terms their lack of faith in juries. In 1864, for example, Chief Justice William Young made what was becoming a typical comment on the jury system. He said that better quality jurors were necessary for important cases. The problem was that in intricate and important trials, it was difficult for the judges, and injurious to the suitors, to try causes with juries composed of men ‘whose habits and training have not fitted them for the task.’91 The assumption that jurors were illogical decision-makers made it easier for judges to rationalize quashing jury verdicts believed to be against the evidence. For example, in Cox v. Witt, Justice William Frederick DesBarres, in overturning a jury verdict, held that the jury’s ‘right to draw their own conclusions from the evidence is at once conceded,’ but that ‘wherever the jury decide, as I

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think they have decided in this case, against, or rather without, evidence, this Court will always exercise its rights to control them, in order that justice may be done.’92 Such an approach undermined the long-term viability of the jury system by reducing public confidence in the ability of lay jurors to reach ‘correct’ decisions. Judges who reserved the right to overturn jury verdicts informed by local knowledge and the equitable concerns of jurors destroyed one of the traditional rationales for juries. Liberal thinking that placed the individual and his rights at the forefront of legal thought grew in influence during the last half of the nineteenth century. Criticisms of juries reflected this growing hegemony. Judges and lawyers internalized liberal values and thus emphasized liberal legal precepts, especially the idea that legal rules should be applied consistently across jurisdictions. Juries, which disposed of cases based on considerations beyond common-law rules and the dictates of statutes, were increasingly anathema to liberals. Legislative Responses to the Criticisms of Juries The criticisms of juries contributed to the passage of a new jury act in Nova Scotia in 1856. In February 1856, William Bennett Webster of Kings County, one of the founders of the Nova Scotia Medical Society, moved for leave to bring in a bill in the assembly to authorize the payment of coroner’s juries. In doing so, he opened up debate about the jury system more generally. A young Charles Tupper, first elected in 1855 in Cumberland County, urged the assembly to consider all of Nova Scotia’s jury laws. Tupper said that the small amount of the fees paid to petit jurors was a common complaint. As a young country doctor, Tupper frequently had to undertake long journeys on horseback to see patients. This perhaps made him sympathetic to jurors, some of whom, he said, had to travel forty to seventy miles, be detained for days, and sometimes return home without having made any decisions at all.93 Conservative lawyer Martin Wilkins agreed with Tupper, claiming that the ‘idea of asking a man to transact another man’s business for nothing is perfectly monstrous and absurd.’94 The innovative legislation eventually introduced by Liberal Attorney General William Young in 1856 implemented changes that attempted to make jury service less onerous and to ensure that juries achieved the liberal goal of creating expedient and accurate decision-making bodies that could apply the law equally across the colony. To alleviate complaints about the challenges of jury service, the act increased the pay to

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jurors and extended pay to more jurors, ended the practice of keeping jurors without meat, drink, or any other comfort until they reached a verdict, and reduced the size of petit and special juries for civil cases to nine people. To ensure that juries did not frustrate the ends of justice, the act also weakened the unanimity rule in civil cases.95 These provisions further differentiated the jury laws of Nova Scotia and Upper Canada. The latter did not decrease the size of civil juries or tamper with the unanimity rule until after Confederation. The 1856 act provided more pay for jurors. Since 1848, Nova Scotia provided jurors in most civil cases two shillings and six pence.96 The 1856 act dictated that every petit and special juror was entitled to two shillings and six pence per day, plus six pence per mile from their place of residence to the courthouse. The legislation thus extended pay to all trial jurors, not just those in some civil proceedings, as provided previously. To help alleviate the cost, plaintiffs paid thirty shillings for the swearing of every jury. By asking plaintiffs to pay thirty shillings for every jury sworn, the legislature created a disincentive to pursuing jury trials by effectively taxing litigants to help underwrite the costs of the process. The expense of paying jurors following the 1856 legislation was substantial. In 1860, the grand jury for Halifax set aside fifty pounds for the payment of petit jurors in 1861.97 From November to December 1865, fees paid to jurors at the Supreme Court in Halifax totalled $179. Thirty-three jurors received pay, varying from $1.50 to $8.90 each. From December 1865 to November 1866, Halifax County paid $707.60 for jury fees at the Supreme Court.98 Although these sums do not sound large, they were substantial enough that many expressed reluctance to increase or extend juror pay further. For example, concerns with cost played a role in the legislature’s reluctance to pay grand jurors for their work at the Supreme Court. Grand jurors could assess themselves pay in the General Sessions but not for their work in the Supreme Court.99 There were several efforts over a twenty-five year period to have grand jurors paid for their work at the Supreme Court. In 1864, for instance, lawyer Stewart Campbell suggested in the assembly that grand jurors receive fifty cents pay per day for their attendance at the Supreme Court, but opponents in the assembly, who carried the day, thought this would place too great a financial burden on the counties.100 Grand jurors at the Supreme Court had to wait until 1875 to receive fees.101 In deciding to eliminate the rule allowing courts to keep jurors locked up indefinitely without meat, drink, and other comforts until a

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decision was reached, Nova Scotia law deviated from English practice. Until 1870, English law allowed courts to keep food and drink from jurors, though there was mounting criticism of this practice.102 By the mid-nineteenth century, English law reformers believed this was a barbaric practice that coerced unanimous verdicts from tired, hungry, and cold jurors.103 The Supreme Court of Nova Scotia echoed this view in 1857, explaining that the ancient rule preventing juries from eating and drinking was no longer acceptable. During a recess at the James Kennedy murder trial described earlier, one of the jurors, Alexander Patterson, had entered MacBride’s public house and conversed with patrons about the trial.104 The jury convicted Kennedy, but before Justice Lewis Wilkins gave judgment, counsel for the accused interposed on several grounds, including that the jurors had separated and had inappropriate conversations. On appeal, Chief Justice Brenton Halliburton considered the problem of treating jurors too harshly. ‘It is within the recollection of many of us that, even in civil cases, a Jury when once sworn, were cut off from all communication with others until they pronounced their verdict.’105 Halliburton then quoted American jurist Joseph Story for the principle that the jury should not ‘as in former days, be kept in capital cases upon bread and water, and shut up in a sort of gloomy imprisonment with nothing to occupy their thoughts,’ for this ‘would probably be most disastrous to the administration of justice, and especially to prisoners to attempt, in these days, the enforcement of such rigid severities, so repugnant to all the usual habits of life.’106 The traditional rule preventing jurors from having food and other comforts was directly tied to the use of the unanimity rule. The prohibition on food and drink facilitated the unanimity of jurors by ‘encouraging’ agreement. By the mid-nineteenth century, the wisdom of forcing such agreements was questioned, but legal professionals and politicians still had to consider how best to have cases decided with a minimum number of hung juries. In Nova Scotia, the solution was to create civil juries of nine and to end the strict enforcement of the unanimity rule in civil cases. The idea of smaller trial juries did not appear first in 1856. Recall, for example, that the 1841 act that eliminated the Common Pleas had made provision for the creation of three-person juries for some disputes.107 In addition, in 1849, petitioners from Hants had urged the legislature to create Commissioners’ Courts across the province that would have the power to call juries of three, five, seven, or twelve, ‘as the case may require.’108 The idea for juries of nine may have come from New Brunswick, which had begun using seven-member

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juries for civil cases,109 or from the United States, where a number of jurisdictions employed small juries in some civil cases.110 The benefits were obvious. Juries of nine required the assembly of fewer people and thus reduced juror travel and fees. It was also easier to get nine people to agree than twelve. Ensuring that juries reached verdicts also motivated the elimination of the unanimity rule for civil juries. Throughout British North America during the mid-nineteenth century, observers often expressed frustration at the failure of juries to agree. A very early comment on the unanimity rule appeared in 1830 when the Novascotian republished a long article from the Times of London. The article noted that different jurisdictions required different levels of agreement for juries. For example, in Scotland, juries had fifteen members and a bare majority of eight could find a verdict. Despite such examples, the Times opposed getting rid of the unanimity rule on the basis of traditional jury ideology. It concluded that the ‘jury law of this country is peculiarly entitled to the epithet humane’ for no ‘narrow majority of bigotry or ignorance can wrest from an Englishman his liberty or his life.’111 A more critical view of the unanimity rule appeared in the Novascotian in February 1833. The Novascotian introduced an article on the topic by suggesting that ending the requirement that all jurors agree was an idea ‘we are desirous to see agitated in the Colonies.’ The article’s author attempted to put into perspective what was expected of English juries by comparing them to other deliberative bodies, such as legislatures: Suppose that in any deliberative assembly held within the four seas, from the House of Lords down to the humblest club inclusive, it were proposed that the mode of taking the opinions of the members should be as follows: first, that the members should bind themselves by oath to vote according to their consciences; secondly, that they should hear the arguments and evidence for and against each of the propositions brought before them; thirdly, that they should submit to be locked up without meat, drink, fire or candle, till they were unanimous; fourthly, that in case of an irrevocable difference of opinion, this process of blockade and famine should continue till nature or conscience gave way.112

The author noted that serious doubts existed among continental and American writers on the topic. While it was obviously better if twelve jurors agreed, modern, complex litigation was bound to result in jurors disagreeing with one another. For litigants, this meant that ‘the angry feelings which litigation always engenders become more exasperated’

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and ‘a general discredit attaches to the system of jurisprudence as inefficient for the purpose of justice.’113 Here, the nineteenth-century desire for efficiency and rationality shone through, but these comments did not lead to any immediate legislative action in the colony. The first significant groundswell of support for altering the unanimity rule appeared in 1840, when approximately eighty people from Halifax signed a petition complaining that the unanimity rule put them ‘to heavy loss and disappointment.’ While the unanimity rule in England ‘arose from the purest motives,’ the petitioners found that Nova Scotia jurors could not be trusted to be honest and intelligent and ‘the ends of public justice are subverted.’ To avoid such problems, the petitioners reminded the assembly that the unanimity rule was unknown in Scotland, and asked that Nova Scotia adopt a similar system.114 Wealthy Halifax merchant Thomas Forrester presented the petition in the assembly. Forrester may have been keen to reduce the cost incurred by merchants in litigation when hung juries caused delays and retrials. The petition received little support, however. Another wealthy member of the assembly, Charles Rufus Fairbanks, opposed the petition, saying that the assembly should not even consider interfering with the traditional rule. Attorney General Samuel George William Archibald said that the petition ought to be withdrawn, pointing out that sometimes a single hold-out juror was right. In the face of this criticism, Forrester withdrew the petition.115 The desire to eliminate the unanimity rule continued to grow, in part because of the frequent reports of hung juries and the consequential expense of litigation. Newspapers often reported on juries that had failed to agree. In August 1849, for example, the British Colonist of Halifax noted that a series of jury disagreements in England had produced a call to alter the jury unanimity rule. The British Colonist quoted one English journal, which described a case in which one of the jurors ‘complained to the eleven obstinate men who struck out against his conviction of the prisoner’s innocence.’ This demonstrated that trial by jury could not ‘continue its existence among us if this crotchety system of fastidiousness is to prevail; and the caprice or obstinacy of an individual is to hold the law at defiance.’116 Rather than see juror hold-outs as proof that cases were unclear, critics saw ‘obstinate’ jurors as undermining the ability of the justice system to operate efficiently. The 1850 trial Carten v. Walsh provides a Nova Scotian example of fatigue with hung juries. In April 1849, the Catholic bishop of Halifax, William Walsh, ordered Samuel Carten, a long-time member of

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the church who had come to doubt parts of the Catholic faith, not to enter any church building in the Halifax diocese. In July 1849, however, Carten attempted to go into St Mary’s Chapel. The sexton and his assistant stopped Carten, and, after a scuffle, succeeded in throwing him out of St Mary’s. Carten responded by charging trespass and assault against several people, including Bishop Walsh.117 The jury failed to agree, and the British Colonist lamented that ‘so much time should have been expended and no conclusion arrived at.’118 To prevent such costs and delays, the 1856 jury act allowed seven of nine jurors in civil cases to come down with a verdict if all nine had been unable to agree after four hours of deliberation. Legislators only limited the unanimity rule in civil cases because of the widespread belief that criminal defendants potentially facing capital punishment should only be put to death if all twelve jurors agreed on a guilty verdict. In legislating for this rule, Nova Scotia was ahead of developments in England, where commentators continued to debate the unanimity requirement, but took no action in the nineteenth century.119 Of course, even after the 1856 act, civil juries could still fail to reach a decision. For example, in an 1866 civil case, the jury apparently split four in favour of the plaintiff, four for the defendant, and one who remained undecided.120 The 1856 act demonstrated the concrete effects of the growing acceptance of liberal ideas, and the continuing aftershocks of the political, ethnic, and religious battles of the previous two decades. Altering the unanimity rule in civil cases decreased the chance that a single irrational juror could delay or frustrate justice, whether it be because of the juror’s alleged stupidity or because of his religious, ethnic, or political biases. Ending the ban on food and drink reduced the appearance that jury verdicts were the products of hunger and thirst, rather than the careful consideration of facts and legal rules. These measures were meant to make juries more acceptable to those espousing liberal sensibilities. The increase in juror pay was designed to muffle complaints about jury service and reduce the number of juries by burdening litigants with some of the cost of the increasingly expensive jury system. The act, however, would not save the jury in Nova Scotia. Responsible Government, Grand Juries, and Municipal Reform Liberal thinking, the movement for responsible government, and the repercussions of the magistrates’ affair also seriously damaged the faith

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Nova Scotians placed in the ability of magistrates and grand jurors to administer local affairs. This led to calls to end the role of grand juries in local government by establishing incorporated municipal government throughout Nova Scotia. Magistrates, appointed by the government in Halifax, and grand jurors, selected by chance by drawing from boxes, slowly lost legitimacy as Nova Scotians came to demand that officials elected at the local level should administer local affairs. While the movement to reduce the role of grand jurors and magistrates in local governance gained steam after responsible government, it had begun in Halifax in the 1830s. Joseph Howe’s legal victory in his seditious libel trial was a victory for the traditional rights of grand jurors in local government, but it did not prevent substantial changes to the system of governance in Halifax. In 1837, the assembly received a petition signed by 556 ratepayers asking that the city of Halifax be incorporated such that most officials would be elected rather than appointed. Opponents delayed the implementation of municipal reform by arguing that this would cost more than the existing inexpensive system of unsalaried magistrates and grand jurors, and that it would introduce the worst sins of uncontrolled democracy. In 1840, however, the new Lieutenant Governor, Lord Falkland, told the inhabitants of Halifax that their voting in that year’s election would decide whether the government would implement municipal reforms. The city returned reform candidates to the assembly, and the 1840 coalition government passed a somewhat conservative municipal reform bill for Halifax in 1841. The act limited the franchise to approximately 800 male property holders who were eligible to elect councillors and assessors, though the more reformist assembly elected in 1848 gradually extended the franchise.121 Municipal reform drastically reduced the traditional role of the grand jury in Halifax.122 The powers of the grand jury and General Sessions in Halifax were vested in the city council or specific officials. For example, the act transferred responsibility for granting licenses to the mayor and alderman, while the city council received the grand jury’s former responsibility for nominating city officers.123 The Halifax grand jury still had some duties, including determining whether criminal defendants would be tried by petit jurors, but the body’s previously significant role in the day-to-day political governance of Halifax was drastically diminished. The magistrates’ affair sparked considerable interest in municipal incorporation in areas outside of Halifax. Traditionally, the willingness of grand jurors to supervise magistrates had created a relatively positive

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view of grand juries. For example, in 1850 members of the assembly discussed the appropriate amount of power that grand jurors should hold for making assessments. In this discussion, several members of the assembly lauded grand jurors for their role in local government. John Clarke Hall of Kings County said that such jurors came from ‘the substantial labouring classes of the Province,’ and that they were ‘generally hard working men – careful of lavish expenditures, and in his opinion rather stingy than otherwise.’ Henry Martell of Arichat Township accorded the grand jury a high place in the running of local affairs, suggesting that grand juries ‘bore the same relation to the county as the house did to the country,’ while the speaker said that the grand jurors ‘were fair and representatives of the mass of the people in every County.’124 The appointment of many reform magistrates after the granting of responsible government, however, helped undermine the legitimacy of the traditional form of local government. Most obviously, inhabitants feared that the magistrates would better serve people of one political persuasion. Less obviously, the appointment of political magistrates also eroded the esteem held for grand juries since legislation gave magistrate committees the responsibility for creating the lists of eligible grand jurors. As a result, beginning in 1852 the legislature received a number of petitions requesting the extension of incorporated municipal government to the counties. Many of the petitioners believed that reforming municipal institutions would extend the principles of responsible government to the level of local governance where the political appointment of magistrates had limited the possibility of good government. In February 1852, for example, petitioners from Annapolis expressed their belief that ‘the time has arrived when greater power of self-government in their local affairs should be conferred upon the people.’125 Petitioners from Digby asked in the same year for municipal government to end the rule of magistrates chosen by patronage, complaining of a ‘disunited and inefficient magistracy,’ who were chosen ‘by the favor or intervention of some prominent individual, without due regard to the fitness, or otherwise, of the candidate.’126 Inhabitants of Kings County said in 1853 that the establishment of incorporated municipal government was one the key next steps in responsible government.127 The important role of responsible government in the calls for local government reform stood in contrast to developments in the 1840s in Upper Canada, where the executive saw municipal reform as a means of centralizing control over the colony.128

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James W. Johnston consistently urged the legislature to establish incorporated municipal government. He vigorously pursued such a measure out of his belief that such a change would limit the growth of political parties.129 He told the assembly in 1854 that a bill to reform municipal government would be effective ‘in suppressing much of the bitter party feeling now rife in this Province.’130 In his view, municipal reform would extend the principles of elective government and limit the ability of political parties to employ local patronage appointments as a means of party building. The British Colonist summed up this idea in June 1854: ‘If there existed by Municipal Corporations as in Canada – a power in the respective Counties to make choice of their own officers for local purposes, the patronage of the Executive Government would be kept within legitimate limits, and their power of exercising an undue influence, and of enlarging their sphere of corruption would be checked.’131 Johnston introduced a series of municipal incorporation bills in the first half of the 1850s. Bills in 1852 and 1853 failed to pass the assembly.132 In 1854, the Assembly passed his municipal incorporation bill, but the legislative council did not vote in its favour.133 Johnston tried again in 1855, and this time the legislature passed his the bill into law. The act allowed Annapolis, Yarmouth, Kings, and Queens Counties to hold votes to determine whether they would opt for a new system of municipal government that would end the administrative functions of magistrates and grand jurors.134 In 1856, the legislature extended the municipal act to the entire province, as well as providing that any county that incorporated would then be divided into townships.135 The opt-in clause of the legislation proved troublesome. Johnston, in fact, admitted in 1856 that he would have abandoned the municipal bill the previous year if he had known that the opt-in clause would be such a disaster. In his words, it ‘gave time to parties to raise a thousand prejudices’ against the municipal act, and ‘to make it a political instrument, to raise alarm as regards expense,’ regardless of how the bill would actually operate.136 Johnston consistently argued that new municipal legislation should be compulsory, but opponents thwarted his efforts by arguing that imposing a more democratic form of municipal governance was antithetical to the principles of responsible government. Opponents of municipal reform thus used the language of responsible government to counter a proposal aimed at allowing Nova Scotians to elect local representatives. Supporters of the municipal reform said it furthered the goals of responsible government. In Queens, Annapolis, Hants, Colchester, Pic-

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tou, Antigonish, and Guysborough Counties, and in the Townships of Argyle and Yarmouth, there existed enough support to require polls on municipal incorporation. Supporters continued to emphasize that the act extended the principles of responsible government. For example, in a letter to the electors of Argyle, J.V.H. Hatfield said that opponents were exaggerating the cost of the new institutions of local government. He blamed the magistrates for stirring anxiety among the people, and said nothing but blatant self-interest motivated their opposition to a democratic reform. ‘Do you know why … most of the Magistrates are against this bill?’ Hatfield asked. ‘It is natural for men in power to try and keep in. And now, Gentlemen, it is for us to say whether they shall keep that power, or we shall take it in our own hands to elect men to suit ourselves, and if they do not please us to turn them out and put in others.’137 The Acadian Recorder also lauded the measure using the language of responsible government, noting that magistrates and grand jurors had traditionally imposed taxes, which was ‘at variance with that fundamental principle of British Constitution which declares that where there is no representation there shall be no taxation.’138 Opponents of municipal incorporation in the assembly charged that the legislation created a system of local government that was cumbersome and expensive,139 and a number of petitioners repeated the charge that the new system of local government would prove too costly.140 There were also allegations that opponents in the legislature were intent on retaining their powers of patronage, which the new system of local government would have badly eroded.141 In the end, only the Township of Yarmouth voted for incorporation. The Yarmouth Herald boasted proudly that the township ‘takes the lead in self-government!’142 Critics of municipal reform had not been completely off the mark, however. In Yarmouth, poor management of local affairs and the cost of yearly elections, as required by the act,143 led Yarmouth voters to subsequently change their minds in 1858.144 As a result, most of Nova Scotia continued to operate under a system of local government reliant on grand jurors and magistrates. This marked a sharp contrast with Upper Canada, which implemented important reforms to municipal government that decreased the traditional role of grand juries. With the failure of municipal reforms in the 1850s, the legislature had to continue relying on magistrates to select the grand jurors who helped supervise local affairs. Despite the inability of Nova Scotia to implement municipal reforms throughout Nova Scotia, the late 1850s and 1860s witnessed experiments in grand jury reform meant to ensure more representative grand

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juries. While some Upper Canadian reformers seriously considered eliminating the grand jury in the late 1850s,145 Nova Scotia did not have an abolition movement before Confederation. Instead, there were attempts to make grand juries more representative. This can be seen in three ways in the decade before Confederation. First, in 1859 Martin Wilkins presented a bill to the assembly to provide for the election of grand jurors, but the bill did not pass. The proposed legislation provided that the freeholders in every polling district would annually elect one grand juror to serve each year.146 The effort by inhabitants of eastern Halifax County to alter a peculiar selection process for grand jurors that prevented grand juries from including men from the entire county represented the second attempt to make grand juries more representative. Almost 100 petitioners from Middle Musquodoboit asserted in 1858 that they had repeatedly asked the legislature to form a separate county from the eastern part of Halifax County. This was necessary because they felt they were ‘under many disadvantages from not having the management of their own local affairs, and their Taxes spent in their own District.’ Their complaint stemmed from the rule that grand jurors could only be called from within fifteen miles of Halifax: ‘We are exempted from being called upon as Grand Jurors, as it would be a grievous burden to go so far from our homes,’ the petitioners noted, ‘but the Sessions in Halifax is not competent (from want of local knowledge) to manage our affairs, and they are in consequence much mismanaged.’147 The assembly received three copies of another petition the next year from the eastern shore of Nova Scotia with a total of approximately 130 signatures that again addressed the composition of the Halifax County grand jury. They complained that they were ‘annually taxed by Grand Juries not chosen from among themselves, but by men who have their residences in Halifax.’ The petitioners did not want to increase these grievances by calling jurors from all parts of the county. Rather, they asked that the legislature divide the county and direct a grand jury and General Sessions be convened ‘of our own people’ with the result that residents could have cases decided by jurors who were ‘better acquainted with our country transactions.’148 The inhabitants living more than fifteen miles outside of Halifax did not succeed in having the law altered in the late 1850s, though a new jury act passed in 1865 temporarily corrected the problem. This legislation was the third example of the desire to make juries more representative. Since 1833, the General Sessions had determined how many grand jurors would come from the different parts of each county

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or district.149 The 1865 legislation was designed to better ensure the representativeness of grand juries. The act required that the General Sessions in each county divide the county into eight sections, as nearly as possible with equal populations. The committee of magistrates (reduced from five members to three by an 1863 act)150 returned the names of eligible jurors, which were placed in eight separate compartments. Rather than leave the number of grand jurors to be chosen from each district of the county to the discretion of the General Sessions, the 1865 act determined that three grand jurors should be drawn from each compartment. In a novel twist, the act dictated that the first eight jurors drawn for the twenty-four-member grand jury would continue in that role for two years. The next year sixteen names were drawn, and again, the first eight would serve for two years. This ensured that the grand jury included some experienced members.151 This colony-wide legislation only applied to Halifax for a short time, however. In April 1865, petitioners asked that the grand jury law be altered to ‘relieve persons residing in remote parts of the County from attendance as Grand Jurors in Halifax.’152 The petitioners extracted part of the March presentment of the Halifax General Sessions grand jury. The grand jury complained that jurors were drawn from places where they ‘had not had the benefits of Education,’ and consequently they were ‘not so well qualified to discharge the important duties of Grand Jurymen.’153 Halifax member of the assembly William Annand responded to these concerns by introducing a bill that exempted Halifax County from the provisions of the 1865 grand jury act.154 The pull of local interests had overwhelmed the desire for representative grand juries. By Confederation, the movement for responsible government had begun to undermine faith in grand jurors as participants in local government. The magistrates’ affair politicized the magistracy and made people question the impartiality of grand jurors. Grand juries also seemed like irresponsible bodies for advocates of making decision makers responsive to the popular will. One way to fix the grand jury system in light of these concerns was to make such bodies more geographically representative, but these reforms would not permanently save jurors’ role in administering local government in Nova Scotia. Conclusion Juries in Nova Scotia came under intense pressure after responsible government. In the early 1840s, reformers had charged that magistrates

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formed jury lists that would ensure convictions in libel cases and prevent their membership on grand juries. With the granting of responsible government, the allegations of packed juries in the late 1840s and 1850s came from Conservatives, who charged that the many magistrates appointed by the Liberals were intent on packing juries against them. As the province became polarized with the beginning of modern political parties, each party strategically installed loyal men as magistrates. In this way, the battles over magistrate appointments (and, as a result, juries) represented the frontline in the war for control over local affairs. When partisan bickering bled into the jury selection process it not only damaged the reputation of the jury, but could slow or even stop the administration of justice. The operation of the Nova Scotia jury system in this period continued to demonstrate the difficulty of ensuring that local officials implemented complex jury selection procedures. The state persisted in relying on the traditional tools of local government – unsalaried magistrates and sheriffs. These officials were reluctant to complete certain tasks unless they received compensation for their efforts. The government faced the realization that, in many counties, magistrates had either failed totally to complete their duties or had done them only partially. These failures were too much to take. The 1854 jury act thus offered payments to magistrates who created the jury lists, and stipulated very heavy fines for those who failed to fulfill their statutory obligations. By the 1850s, the debates about juries had begun to reflect growing tensions between the operation of juries in practice and the aims and ideas of Nova Scotians. English jury ideology had always been relatively weak in Nova Scotia, and by the 1860s the emerging liberal-inspired critique had combined with negative attitudes towards jury service, ethnic and religious conflict, and the politicization of the justice system caused by the entrenchment of political parties, to further weaken the place of juries in Nova Scotian legal culture. Like many people in the common-law world, Nova Scotians increasingly found juries anachronistic at a time when contemporary thought emphasized that the justice system should be efficient, rational, and consistent. As the Halifax Sun and Advertiser aptly noted in 1866, there was ‘no doubt at all that much of the old pride with which trial by jury was regarded has departed.’155 As a result, Nova Scotia implemented several important innovations to the colony’s jury system, including weakening the unanimity rule for civil juries, increasing jury pay, and creating civil juries of nine. These reforms sought to make the jury more acceptable and predated similar changes to the jury system of Upper Canada. Responsible government

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and the entrenchment of party politics also motivated the attempts to reform local government – proposals that would have ended one of the traditional roles of grand jurors. While grand juries retained their place in local governance in much of Nova Scotia throughout the 1860s, the sense that magistrates were political appointees and that grand jurors were unrepresentative men chosen by chance (or politics), ultimately led to the creation of incorporated municipal government throughout Nova Scotia in the 1870s, as will be shown in chapter 7.

6 Responsible Government and the 1850 Upper Canada Jury Act

The Nova Scotia magistrates’ affair demonstrated the damage that could be inflicted upon the jury system by mid-nineteenth-century political parties and the movement for responsible government. The difficulty Nova Scotia legislators experienced in ensuring that officials accurately completed their jury selection duties also reflected the challenges of implementing complicated state policies in this period. Responsible government damaged the jury in Upper Canada as well, though in substantially different ways than in Nova Scotia. In the late 1840s, with responsible government and with reformers ensconced in the legislature, Upper Canada passed the 1850 jury act. This legislation completely revised the jury laws of Upper Canada. It represented reformers’ best effort to prevent future political jury packing, and it largely stopped allegations of such behaviour. By limiting one factor in the decline of juries in this period – the politicization of juries – the legislature aggravated another factor that motivated opponents of juries. The 1850 legislation greatly increased the cost of using juries, slowed the justice system, and annoyed jurors who had to travel longer distances to attend court. The legislature responded to cranky jurors by finally allowing compensation for jurors, but this only further increased the cost of the jury system. Cost and inconvenience were even less appealing when responsible government led many people to suggest that juries no longer had to defend subjects against state oppression. Responsible government rested

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on a belief that the democratically elected legislature would prevent the executive from wielding power unfairly. Many began to assert that the jury was an unnecessary historical anachronism in a democratic age in which the will of the electorate controlled Upper Canada. As in Nova Scotia, the liberal-inspired critiques of juries also became prominent. Critics charged that juries were unpredictable and could not evaluate complicated legal issues. Professional judges, it was argued, could better dispense equal justice. Liberal criticisms, complaints about the expense and inconvenience of the jury system, and a sense that jurors no longer had to defend subjects from arbitrary government contributed to attempts to replace jury trials with summary proceedings and to reduce the role of grand juries. Before Confederation, the more farreaching efforts to limit the use of juries often failed to become law, however, in part because John A. Macdonald adhered to the rhetoric of traditional English jury ideology. ‘A Valuable and Much Needed Measure’: The 1850 Upper Canada Jury Act In the late 1840s, jury reform remained one of the key aims of the Upper Canada reform movement.1 As a result, Attorney General Robert Baldwin introduced a new jury bill in 1850. The perceived need for such an act had remained strong. Memories of the old political trials remained stuck in the imagination of many reformers, and Upper Canada’s newspapers published several tales of jury packing. For instance, the press of Upper Canada covered extensively the trial of Daniel O’Connell in 1844.2 There were also continued claims of packed juries in Upper Canada, particularly in libel cases against the reform press. In 1848, for example, the Toronto Globe charged that Conservative Colonel John Prince had gone before a grand jury at the London assizes to charge that George Brown had published libels meant to produce a breach of the peace. The Globe suggested that the grand jury, ‘by a remarkable coincidence,’ contained ’22 Conservatives, to 2 Reformers.’ As a result, the newspaper concluded that the ‘law of libel in this country is most unjust – not to say absurd.’3 The legislative debate concerning the 1850 act was surprisingly short, perhaps because reforms had been advocated for so long and the general scheme in the act was well known. In introducing the bill in the assembly, Baldwin explained that it was meant to provide a more satisfactory method of regulating jury selection. Henry Smith, a moderate

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Conservative, declared that it was ‘an improvement upon the existing law, and would remove some of the present evils and inconveniences.’ Then the debate became sidetracked on to a discussion of grand juries. Conservative lawyer William Badgley suggested that the province get rid of grand juries altogether, contending that grand juries were ‘useless in criminal proceedings,’ and that a public prosecutor would complete more readily the duties of grand juries.4 Baldwin distanced himself from Badgley’s call to eliminate grand juries, as it would have made it harder to pass his bill. He also suggested that his act would ensure that all those qualified might actually become jurors; thus, the labour would be more equally distributed to all men because no one would be required to serve repeatedly. He also noted that ‘the danger of tampering with jurors’ was ‘a great offence.’ He believed that the ‘probability of such tampering would be greatly decreased by the jurors being taken from all parts of the community’ since the practice of taking jurors from one part of a district made it easier ‘to make use of that influence which was improper and criminal.’5 In attempting to avoid future allegations of jury packing, Baldwin’s 1850 jury act departed from earlier legislation in Upper Canada, and established one of the most complex methods of jury selection in the common-law world at mid century. To end the long-running complaints of partiality in the formation of Upper Canadian juries it used a series of balloting procedures, instituted a number of checks on officials, and required the detailed recording of the selection process. The act’s length reflected its complexity – it was about fifty pages long with 101 sections, up from the 1794 act’s two pages with thirteen sections. It also created procedures to ensure that juries would be more geographically representative. The legislation was a substantial effort by the provincial government to take control of a system that had, in the past, been run largely unsupervised by local officials accustomed to possessing discretion over day-to-day local affairs. Eligibility for jury service was carefully laid out. A juror had to be male, over twenty-one years of age, and ‘in the possession of his natural faculties and not infirm or decrepit.’6 For the first time, the legislation provided a detailed list of those exempted from jury duty.7 The act also created a fluctuating property qualification. While the 1794 act had allowed all ‘householders’ to serve as jurors, the new act stipulated that the qualification was the highest three-fourths of the assessed residents for each town, city, village, or township. This three-quarters requirement therefore created a supple property qualification – the

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three-quarters level was determined according to the relative wealth of each town, city, village, or township.8 The new qualification rules also meant that a large percentage of Upper Canadian men remained eligible for jury duty, and that juries were not the exclusive preserve of the wealthiest men of the colony. For example, the grand jury panel at the April 1851 Quarter Sessions in Chatham consisted of forty-four ‘yeoman’ farmers, one labourer, one clothier, one tanner, and one cooper.9 Of course, drawing from the assessment rolls ensured that jurors were not the very poor. Despite their rhetorical attacks on special interests and political cliques, reformers held property to be the basis for political independence.10 The poor and uneducated were thus deemed unfit to deliberate on juries, even by reformers. Excluding the poor from juries was rationalized as the only means to select ‘quality’ jurors who could rationally debate cases and find just outcomes. To ensure that the burden of jury service was distributed fairly, the act also provided an exemption to those who had recently served as a juror.11 The 1850 act’s goal of more systematically creating juries began with the identification of qualified jurors. The act took the duty of compiling lists of the persons qualified to act as jurors from clerks of the peace and gave it to a ‘committee of selectors’ established in each township in the county. Township committees included the mayor or townreeve, the village, town, city or township clerk, and the local assessor or assessors. This group identified the qualified jurors from the local assessment rolls who, because of the ‘the integrity of their characters, the soundness of their judgments, and the extent of their information,’ were ‘most discreet and competent for the performance of the duties of a Juror.’12 The selectors chose at least two-thirds of those who qualified as being in the top three-quarters of the assessed residents of the community. The selectors then divided these names into four categories along strict proportions: they chose one-ninth as grand jurors for the superior court, two-ninths as grand jurors for the inferior courts, two-ninths as trial jurors for the superior court, and four-ninths as trial jurors for the inferior courts.13 The selectors created a report containing the names of the persons they selected for each category. One copy of their report was held by the township, village, town or city clerk. Another copy went to the clerk of the peace for the county. The next stage of the selection process saw the county clerk of the peace copy the reports from the various local committees into a county jurors’ book that also had the four juror categories. The names listed in the book were numbered. The clerk of the peace attended the Quarter

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Sessions with the jurors’ book, and the court determined the number of jurors needed based on the amount of upcoming court business.14 The clerk of the peace then created ballots. The act laid out the procedure for making and storing the ballots in meticulous detail.15 The ballots did not contain the names of the potential jurors, but had numbers that corresponded to the numbers and names in the jurors’ book. After the jury box was shaken, the chair of the Quarter Sessions drew ballots from the box and declared the number on each of the ballots. The clerk of the peace then matched each number with the name in the jurors’ book. The chair of the Quarter Sessions and the clerk of the peace then certified the lists of drawn names. The clerk of the peace had to make copies of the jurors’ book, depositing them at the offices of the two superior courts in Toronto, and another at the deputy for the county.16 In creating petit jury panels, the act then required the sheriff to draft a panel of forty-eight to seventy-two names from the lists drawn at Quarter Sessions. The sheriff also created a set of numbered ballots, and drew the panel in the presence of the clerk of the peace and at least two justices of the peace. This provision prevented sheriffs from packing juries, and ensured that jurors would be drawn from ballot boxes containing names from the entire county. The drawn names were certified by the clerk of the peace and the justices. Again, copies were made and deposited at the superior courts and with the deputy of the county. The sheriff summoned this panel. At trial, a third ballot process selected the twelve trial jurors. After the verdict, the names were placed back in the box and a new jury drawn. However, if both parties consented, the same jury could be kept. If an insufficient number of jurors appeared or parties used too many challenges to permit the formation of a jury, then bystanders at the courthouse could be enlisted to serve on the jury.17 To ensure that officials carefully completed these complex jury selection processes, the act threatened large fines for non-compliance. Sheriffs could be fined if they did not summon a juror, or recorded that someone appeared for jury duty who had not actually attended. The act dictated fines for officials who took bribes to excuse someone from jury service. It made sheriffs, clerks of the Crown, and clerks of the peace who failed to complete their statutory duties liable for fines of up to fifty pounds. Town officials in charge of the assessment rolls could be charged up to twenty-five pounds, while the selectors feared fines of between five and twenty pounds.18 These fines, much larger than in Nova Scotia, partly explain the relatively successful implementation

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of the 1850 jury act in comparison to the troubled history of officials refusing to complete their duties in Nova Scotia. Paying officials was another way of encouraging the completion of the statute’s provisions. For example, the township selectors received ten shillings each, while the township clerk collected five shillings for bringing the assessment rolls. The clerks of the peace in the counties received one pound, ten shillings for every jurors’ book prepared. The act provided the clerks of the peace a further sum of two shillings for every 100 names contained in the jurors’ rolls, and one pound for each jury list balloted and entered into the jurors’ book. Sheriffs received one pound for each panel of jurors returned, and six pence for every mile travelled to summon jurors.19 Every detail of the 1850 jury act was designed to prevent jury packing for political reasons. The series of balloting procedures, the fines for officials, and even the requirements for how ballots were folded were meant to protect subjects from having cases decided by partial juries in political cases. The system was thus designed for the special and unusual cases that risked oppressing the critical reform elite. It would be used to settle all cases, however, both the political and the far more numerous mundane cases and suits that came before courts. The procedures of the act would help end jury packing allegations, but, in so doing, angered jurors and municipalities by increasing the cost and inconvenience of the jury system and juror duty. Implementing the 1850 Jury Act The press initially reacted positively to the act. A moderate reform newspaper, the Toronto Examiner, called it a ‘valuable and much needed measure’ that proposed ‘a great reform upon our present unguarded and dangerous jury law. For the arbitrary discretion of the Sheriff it substitutes the equity of the ballot box.’20 The Perth Courier also lauded the new act as ‘a God send to the Sheriffs. Hitherto these officials had to select juries themselves, and in consequence be exposed to much obloquy from the public.’21 John Beverley Robinson, however, recognized one problem before the implementation of the act. He told Baldwin in August 1850 that ‘[i]n theory the bill is good,’ but that ‘I fear it will be inconvenient in practice.’22 His comments foreshadowed much of the later public response to the reform. The implementation of the 1850 act reflected the assertiveness of Upper Canada’s government in implementing complicated new state

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initiatives. During much of the first half of the nineteenth century, the colonial state was largely ignorant of the details of Upper Canada’s economic and social circumstances. The state possessed limited administrative capacity to implement policies or to collect information as basic as wages, commodity prices, population, and agricultural production. Local prominent men often had a qualitative sense of their communities, but statistical information was rarely collected and, even when collected, was not standardized.23 In implementing the new jury act, however, the government proved very proactive in encouraging officials to comply with the new legislation and in collecting information on the operation of the legislation. For example, the county clerks of the peace received a circular, each of which included a copy of the jury act and detailed instructions for the legislation’s implementation. A special sitting of the Quarter Sessions was ordered for 17 December 1850, to allow for jurors to be balloted from the lists provided by the local committees of selectors. The circular emphasized the need for close adherence to the act. To ensure that the township committee meetings took place, the circular told the clerks of the peace to make certain that the assessment rolls were available. As well, the government ordered the clerks of the peace to contact the heads of every municipality in their county to call attention to the necessity of holding a meeting and to recommend that they notify the selectors of where and when to attend. The government also required the collection of additional information so that it could assess how the act worked in practice. The government requested data on the level of assessment needed to qualify as a juror; the number of jurors selected; the number of persons exempted for various reasons; the number of persons on the assessment rolls; and the cost of the jury selection process.24 The government received a large number of responses to the circular, several of which hinted at local resistance to some of the act’s provisions. For example, the clerk of the peace from Simcoe wanted to limit the amount of work that the statute required. He questioned the necessity of creating so many copies of documents, and asked whether he needed to forward a certified copy of the assessment rolls to each township because a copy was already deposited with several township clerks. He admitted that the act was ‘clear on the point,’ but it would ‘save expense and perhaps meet the spirit of the requirements the act,’ if the existing copies were deemed sufficient.25 In November 1850, the clerk of the peace for Norfolk also sent in a suggestion. He wondered whether the juror exemption sections of the new act might

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be amended because exempting all township officers – including, for example, poundkeepers and fence viewers – meant that fifty to seventy of the most intelligent persons in the community were prevented from acting as jurors.26 In Nova Scotia, the lack of fines hindered the implementation of jury legislation for many years. In Upper Canada, however, the high fines imposed in the 1850 act for failing to properly administer the legislation seemed to spur many officials to action. The clerk of the peace for the County of Norfolk wrote to provincial secretary James Leslie to inform him that the time had arrived when the act required him to deliver jury materials. Unfortunately, he was unable to do this because some of the township jury selection committees had not sent him their reports. He was ‘most anxious to receive instructions’ because clerks of the peace were ‘bound under a penalty to discharge this duty.’27 County officials reported a spate of problems in the initial implementation of the act. Many officials had trouble meeting the statutory deadlines to prepare the jurors’ books. In part, this was blamed on a failure to disseminate the legislation as broadly as necessary.28 Some asked for more time to implement the act. For example, the clerk of the peace for the United Counties of Leeds and Grenville reported that only one township jury selection committee had made a report within the time required by the statute. He thus suggested that the deadline for completing jury selection be extended.29 The warden of the United Counties of Lanark and Renfrew also asked for an extension of the time for the selection of jurors, and requested that reeves be furnished with copies of the statute because otherwise the lists of jurors would be ‘incomplete and inequitable.’30 Samuel Freeman, the clerk of the peace for the United Counties of Wentworth and Halton, told Robert Baldwin that the act had been published in a local newspaper, but he suggested an extension of time for returning jury lists to relieve the anxiety of the reeves who wished to comply with the legislation. A few townships had complied with the law, said Freeman, but others had not seen the act in the newspaper, and still others ‘did not feel disposed to take the law from a newspaper.’31 Despite the fines imposed by the 1850 jury act, some officials did not fulfil their duties or respond to the 1850 circular. In contrast to Nova Scotia, however, Upper Canada was proactive in pursuing compliance. In 1851, the legislature extended the time for making the selection of jurors.32 It also provided more flexible deadlines for completing the work of the township selectors, and permitted the mayor or townreeve

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to designate a convenient day for the selectors to get together and make selections if they had failed to do so when the statute required. In addition, in August 1852 the provincial secretary prefaced another request for statistics by noting that some officials had failed to respond to the 1850 circular. He told the clerks of the peace that they were to send the previously requested information or else provide an explanation.33 In response to the second circular, some clerks of the peace sent in complete jury tables late. A few, however, could only submit badly incomplete tables. For example, the table offered by the clerk of the peace for Simcoe County for 1850 shows that eleven of twenty-seven townships did not file a jury return.34 Other clerks of the peace again failed to meet the request for information. The clerk of the peace for the United Counties of Lincoln and Welland sent in a table for the return for jurors for 1852, but admitted that the act and circular had not been complied with in previous years. He explained that the returns of the township selectors were ‘so imperfectly returned’ that he could not make a complete statement for the previous year.35 The judiciary of Upper Canada also helped ensure the implementation of the 1850 act by pointing out when officials had sloppily completed the act’s requirements. In addressing the assize grand jury in Perth in 1853, Chief Justice John Beverley Robinson expressed his belief that some officials had failed to carefully fulfil the jury act. He claimed that in some counties only ten jurors had appeared when summoned. ‘Care should be always taken in selecting Jurors to choose actual settlers, and not those who might be moving about from one place to another,’ he urged. ‘Aged men should not be selected, because they might be prevented by infirmity from attending – neither should men be chosen who are not thoroughly conversant with the English Language.’36 Similarly, Justice John Hagarty in Hamilton in the fall of 1857 asked that the grand jury be punctual in their attendance, ‘seeing that out of the number selected, twenty-two were exempt on account of being over sixty years of age.’ This led him to complain that it certainly was ‘most disgraceful’ that ‘such bungling should be committed by those whose duty it was to make the jury selections.’37 The jury act created a huge amount of paperwork. Prior to 1850, jury selection was administered locally; with no reporting provisions in the old jury acts, local officials could manipulate the jury process unless admonished by the judiciary. The reporting processes established in 1850 were meant to prevent this type of manipulation. The data collected was also a part of the increased application of bureaucratic procedures,

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including the collection of standardized knowledge and detailed record-keeping, that marked government activity in the mid-nineteenth century.38 In his book on state formation and the census in Canada, Bruce Curtis suggests that as a centralized administration attempted to rule the colony directly, ‘standardized forms of knowledge, bereft of observational idiosyncrasies and applicable to all domains, acquired a heightened importance after 1840.’39 This comment applies accurately to the developments in jury selection – the 1850 jury act standardized the format and content of jury returns across the colony, and required that copies be sent to the provincial capital. Surviving records of jury selection in Upper Canada in the 1850s provide ample evidence of the massive data collection entailed by the act.40 County-wide records provide one example; they list hundreds, or even thousands of names collected and chosen each year.41 The aggregate returns prepared in response to the circular sent to the clerks of the peace offer the best illustration of the data collection the act necessitated. Many examples survive, but just a few can provide a sense of the size of the undertaking. The aggregate returns detailed, among other things, the amount of assessment that qualified inhabitants for jury duty, the number of jurors for each juror division selected, the number of persons disqualified, and the total number of inhabitants in each county. For example, of 25,267 inhabitants in Simcoe County in 1851, the clerk of the peace reported that 4,118 appeared on the assessment rolls. Of these, the township committees of selectors chose 2,365 as potential jurors and divided them into the four juror categories. The return also noted that 1,451 persons were exempt from jury service for one reason or another.42 These large numbers paled in comparison to those in York County. In 1851, the county had 87,841 inhabitants, 13,756 of whom were on the assessment rolls, even without including the City of Toronto, which failed to provide data on its population and assessment rolls. The township committees placed almost 11,000 names on the lists of potential jurors.43 The aggregate return for 1853 for the United Counties of York, Ontario, and Peel resulted in a tally of 135,055 inhabitants and 12,168 jurors on the townships selectors’ jury lists.44 The aggregate returns demonstrated that the flexible property qualification for jurors meant that jurors drawn from some townships were considerably wealthier than those from others. For instance, jury returns in the County of Norfolk for 1851 indicate that the amount of assessment necessary for jury service varied between thirty-six pounds, ten shillings in one township and just eight pounds in another.45 Simi-

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larly, in the County of Prince Edward, the minimum required assessment varied between ten and sixty-eight pounds, depending on the township.46 The aggregate jury returns also sometimes hinted at how selectors weeded out potential jurors who could not speak English. For example, in the aggregate return of jurors for the County of Norfolk in 1851, the clerk of the peace noted that Germans living in the county had been exempted. A small note indicated that the ‘names of 63 Germans have been left out on account of their ignorance of the English Language.’47 In another county, the clerk of the peace remarked that in one township a ‘number of Scotch Highlanders and French Canadians though qualified are not fit to serve as Jurors.’48 Chief Justice Robinson supported this practice of weeding out jurors from certain ethnic backgrounds. In 1853, he remarked that jurors ‘not thoroughly conversant with the English Language’ should not be selected because ‘serious difficulties’ would arise from the fact that interpreters ‘would have to be employed, which would cause much inconvenience.’49 As in Nova Scotia, it also appears that blacks occasionally acted as jurors, though they sometimes received a frosty reception from white jurors. William McVity from Barrie wrote to Robert Baldwin to inform him that the 1850 act had meant the return of ‘some Highland Scotch, and Frenchmen, who could not speak English, as well as several Coloured men.’50 In 1851, petitioners required to attend the assize in Toronto urged that Thomas Tilly, a black man, be dismissed from jury duty, ‘especially as there are sufficient white men ready and willing to serve their country.’ The white jurors expressed their ‘detestation of the manner in which the Jury Act had been framed. Certainly the Hon. R. Baldwin would not like to sit in public with half a dozen such men as Tilly.’51 One commentator, a J.T. Fisher, responded to the petition on the pages of the Voice of the Fugitive, a newspaper that advocated the interests of black Upper Canadians. ‘Has the time ever been, or shall it ever come, that a man, on account of his color alone, shall be dismissed from the jury box in Toronto, or in any part of Her Majesty’s dominions?’ he asked. ‘No Sir,’ he wrote, ‘the time never has been, and I feel certain that it never will come, when ignorance and prejudice will so far triumph over justice, as to drive a man from the jury box because he is a colored man.’52 The Voice of the Fugitive later called the Toronto petition an ‘outburst of ignorance and yankee prejudice,’ and reported that Tilly had been appointed foreman in three cases in one day.53 Another complaint about a black juror occurred at the Kent assizes in Chatham

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in 1863 when the foreman of the jury, Thomas Russell, rose and told the court that one of the jurors was a ‘colored man.’ The eleven white jurors had agreed that they would not sit with him because they believed he lacked the intelligence to act as a juror. Judge William Buell Richards informed the foreman that there was no legal reason that he could refuse to sit. Russell left the jury box and was fined five pounds, as was a second juror who refused to serve.54 A committee of citizens of Chatham wrote to John A. Macdonald to urge the inclusion of blacks on juries. They emphasized the importance of jury membership as a badge of citizenship.55 The complicated 1850 jury act demonstrated the extent to which reformers were intent on reforming the jury system. They harnessed the institutions of local government created in the 1840s to implement the act as uniformly as possible. For the first time, the administration of the jury system was to be consistent across the province. The system reduced the dangers of packing by limiting the discretion of local officials beyond the basic determinations of competency for those who met the property qualifications. The standardized statistical data collected and the multiple copies of documentation also allowed government officials to supervise the jury system more systematically. The Increasing Cost of the Jury System The intricate system of jury selection established in 1850 would prove largely effective in ending claims of packed juries. However, in reducing the importance of the politicization of juries as a factor in the decline of the jury in the nineteenth century, the new system aggravated another factor: the new jury selection system proved immensely expensive to administer, and led to doubts that juries were worth the cost. Information on the administrative cost is available because in 1852 the government required sheriffs and clerks of the peace to detail the amounts they claimed for their jury work in 1850 and 1851.56 In large counties, the costs were substantial. The clerk of the peace for the United Counties of York, Ontario and Peel reported that for 1850 he received 362 pounds in compensation under the new jury act.57 In 1851, the sheriff for the United Counties of York, Ontario and Peel received 316 pounds.58 The sheriff for the United Counties of Northumberland and Durham reported fees of over 216 pounds in 1851, while the sheriff for the United Counties of Peterborough and Victoria charged 157 pounds from December 1850 to November 1851.59

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Although these were substantial figures, various officials claimed that the 1850 jury legislation provided insufficient compensation for the money and time spent implementing the jury act. The sheriff of Simcoe County, for example, had claimed pay of 266 pounds from December 1850 to November 1851. However, he had spent 163 pounds on mileage to bailiffs for summoning jurors. He thus observed that ‘nearly twothirds of the whole amount are Bailiff fees for travelling occasioned by the extent of the County comprising twenty four townships extending from near Owen Sound[,] Artemesia and Penetanguishine to within about twenty eight miles of Toronto.’60 The sheriff of the County of Hastings, J.W. Dunbar Moodie, also discussed the problem of travel in implementing the 1850 jury act. Moodie reported that he had charged 173 pounds for jury services in 1851. He pointed out that from this figure ‘the usual deductions should be made,’ including ‘the services performed by Bailiffs and also for disbursements while travelling from 14 to 21 days in serving the Jurors for each court.’ He claimed that the travel required to summon jurors in 1851 totalled 3,738 miles.61 The complaints of these sheriffs indicate the difficulties of travelling in the large rural counties of Upper Canada. The 1850 jury act forced officials to draw jurors from all parts of the county (or united counties), rather than allowing the sheriff, as in the past, to pick jurors from one area or those living close to the court. The sheriff of Simcoe alluded to this when he noted that the bailiff ‘had upon one occasion to travel into Artemesia for one juror some forty miles beyond any other.’62 The clerks of the peace also complained about the amount of compensation allowed under the 1850 jury act. The clerk for Hastings County claimed that under the jury statute ‘there was scarcely any remuneration allowed’ for his services,63 while the clerk for the United Counties of Wentworth and Halton told Robert Baldwin in November 1850 that he would ‘not be able to make more than mechanics[’] wages’ implementing the jury act.64 Similarly, the clerk of the peace for York County argued that the fees were ‘utterly inadequate to the value of the labor required to be performed,’ and that ‘the remuneration received for the performance of that labor was insufficient to pay for the services of the extra clerks – besides those of my regular deputy.’65 Officials’ complaints about insufficient compensation for completing the jury act, and the desire to encourage compliance with the jury selection process, led to an increase in fees in 1851.66 The statute noted that the experience of the previous year had shown that the fees allowed under the 1850 act ‘were in most respects wholly disproportioned to

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the amount of labor and responsibility imposed.’ The legislature therefore provided for a new fee table, and allowed for retroactive payments for work already completed.67 The new legislation aimed to reward officials who worked in larger townships by basing the disbursement of most fees on how many potential jurors had to be processed. The result was a substantial increase in the expense of administering the jury system. The cost of the jury system of Upper Canada also rose because of the legislature’s decision in 1851 to allow all jurors to be paid. Efforts in the late 1830s and 1840s to provide jurors compensation had failed, but the legislature continued to receive appeals for such a measure. For instance, in 1849 the municipal council of the District of Bathurst asked that jurors in Upper Canada be paid out of the general funds of the province,68 while a committee for the municipal council for the United Counties of Lanark and Renfrew resolved in 1850 that ‘the compelling of Jurors to serve … without pay, is unjust.’69 Other petitions urging the payment of jurors in Upper Canada came from Lincoln County, and the township of Grantham in the District of Niagara.70 In 1851, reformer and lawyer William Buell Richards thus had the assembly consider whether the petit jurors should be paid, in part or in whole, with taxes raised by local municipalities.71 The assembly resolved that it was best to pay petit jurors from local sources, and Richards then brought in a bill to provide petit jurors compensation.72 The 1850 jury act’s requirement that jurors be drawn from all parts of a county helped motivate the legislature to allow jurors pay as it meant that many jurors had to travel long distances. The legislature provided five shillings per day to every petit juror who attended court, plus six pence per mile travelled, or another amount as determined by a local bylaw. The county councils also received authorization to pay grand jurors ‘such sum per diem as they shall deem reasonable.’73 To raise the funds necessary, litigants had to pay for every record entered for trial. In addition, all fines and penalties imposed that were not payable to the receiver general helped compensate jurors. If these sources proved insufficient, then the county councils had the power to raise money to make up the difference. Perhaps concerned about whether the county councils would rebel against the act, the legislature provided an opt-in clause; that is, the act went into effect only in counties where the county councils took steps to raise the necessary funds.74 Most county councils appear to have taken steps to pay jurors because of the greater difficulty many jurors experienced in attending

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court after 1850. However, at least one county refused to apply the statute. In October 1852, the grand jury for Carleton County noted in its presentment that it was ‘much to be regretted’ that the county had ‘made no provision for the payment of Petit Jurors as empowered to do by the statute law of this province.’75 As well, at least one county slightly altered the amount of money jurors received. Inscribed in the Kent County jurors’ book for the years 1846 to 1857 is a copy of the county council bylaws that provided to petit and grand jurors allowances of five shillings per day for attendance (i.e., the same as the 1851 statute), and three shillings for each mile travelled (rather than six).76 These payments failed to placate all jurors. Some farmers still worried about leaving their crops to attend court, regardless of whether they received compensation for jury duty. For example, the Perth County grand jury asserted in May 1853 that the public would benefit if the business of the court could be arranged to create as little delay as possible. The grand jury observed that the county was ‘put to the expense for the remuneration of the jurors,’ while the jurors’ ‘time from their usual agricultural and other pursuits’ could not be ‘spared at this season, which no money recompense can well pay.’77 The payments also did not end juror absenteeism, especially since jurors were required to travel from across the county to attend court. For example, the Hamilton grand jury complained in its October 1852 presentment that only fourteen grand jurors attended on average;78 and at the Hamilton assizes in October 1856, the judge grumbled about the non-attendance of jurors, and fined several who did not appear.79 The Kent County jurors’ book for 1846 to 1857 demonstrates how the new legislation increased travel for jurors. For example, at the January 1854 Quarter Sessions in Kent County, twenty of twenty-four grand jurors appeared. Nine jurors travelled zero miles; the other eleven travelled an average of 16.7 miles (all jurors travelled an average of 9.2 miles). At the same Quarter Sessions, thirty-three of forty-eight summoned petit jurors attended. Two talesmen were taken. The thirty-five jurors travelled an average of almost 13 miles.80 The payments to officials and to jurors threw a great burden on municipalities, and a stream of petitions from municipalities complaining of these new jury expenses soon washed upon the legislature.81 Only a handful of the petitions to the assembly survive, but references to them in the journals of the assembly provide some indication of the municipal councils’ arguments. A large number of petitions asked for amendments to the jury laws.82 In other petitions, the municipal coun-

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cils specifically asked that the money for juror pay be taken from the consolidated fund of Upper Canada, that the fees imposed by the jury acts be reduced, or that the act be altered to reduce costs.83 The press echoed the grievances of the municipal governments concerning the cost of the jury system. The North American Semi-Weekly, a Clear Grit newspaper, remarked in 1852 that the 1850 jury act had been ‘founded on the most equitable and most efficient principle on which Jurors have ever been selected,’ but the newspaper noted that it was ‘so loaded with extravagant fees that the people overlook the benefits, in their eagerness to complain of the burthen.’ If ‘ever there was an instance where a truly valuable principle was rendered hateful by the exorbitant price of it,’ the North American Semi-Weekly continued ‘it is the case of the present Jury Law.’84 The North American noted that many counties had spoken out against the jury legislation, but to no avail. The United Counties of Lennox and Addington complained that the jury system would cost it 2,500 pounds per year. The newspaper also claimed that the fees to the clerk of the peace of the United Counties of York, Ontario, and Peel for his jury services amounted to 326 pounds.85 Fees to selectors totalled 536 pounds, and it was estimated that, ‘in addition to these large sums, the wages to Jurors will, in future, amount to twelve hundred pounds a-year, for these counties!’ ‘This is really ruinous,’ concluded the North American, and was ‘not only calculated to turn men’s wrath against even good laws, but if continued, must … end in Municipal bankruptcy.’86 A major problem for the counties was that the fees used to pay jurors proved insufficient. In Elgin County, for example, payments to jurors totalled 558 pounds. This figure, which does not include the money paid to the sheriff, clerk of the peace, and other officials represented approximately 3 per cent of Elgin County’s total expenditures.87 Fees and fines, however, raised just ninety-three pounds, and the county had to make up the difference. In a few petitions to the legislative council that have survived, municipal councils emphasized this point. For example, the municipal council of the United Counties of York and Peel said that the ‘fees, fines, and penalties’ paid by the litigants fell very short of being sufficient for the payment of petit jurors, thus leaving ‘a large balance to be made up by direct taxation upon ratable property.’88 Attorney General William Buell Richards, a member of the reform administration of Francis Hincks and Augustin-Norbert Morin, responded to the complaints of municipalities about the high costs of the jury laws by introducing a bill to again amend Upper Canada’s

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jury legislation.89 The resulting 1853 act made two substantial changes. First, the legislature increased the qualification requirement for potential jurors by requiring that the cut-off for jury duty would be the top half (rather than the top three-quarters) of all assessed residents on the assessment rolls. The township committees of selectors would then choose at least two-thirds of those eligible (that is, from the top half of the assessment rolls).90 This alteration effectively reduced the number of jurors placed on the jury lists prepared by the township committees, and thus saved time and expense. The aggregate jury tables prepared by the counties demonstrate the decline in the number of jurors chosen by the committees of selectors after the 1853 amendments. In the County of Norfolk, for instance, the number of jurors selected by the township committees totalled 2,272 in 1851 and 2,366 in 1853. With the new rules in place the next year, they selected 1,886.91 In the United Counties of Leeds and Grenville, the number of jurors selected fell from 4,564 to 3,131 between 1853 and 1854.92 Similarly, in the United Counties of York, Ontario, and Peel the committees of selectors chose 12,168 potential jurors in 1853, a figure that declined to 9,633 in 1854.93 The second change instituted by the 1853 act concerned the fees to officials. The legislature allowed the municipalities to determine how much compensation the committees of selectors should receive, and decreased many of the fees paid to the clerks of the peace and sheriffs.94 Some Upper Canadians were further aggravated by the cost of juries, because in 1855 the legislature of the Province of Canada voted to provide 5,000 pounds per year to help pay petit jurors in Lower Canada. Lower Canadian legislators had pushed hard for juror compensation since the 1840s, in part because the court system of Lower Canada had remained highly centralized with the result that some jurors had to travel especially long distances to the few large centres that hosted the superior courts.95 In 1846, for example, the legislature failed to pass a bill that would have indemnified petit jurors from the rural parts of Lower Canada for their expenses.96 This remained a popular issue, however, and the legislature received a number of petitions in the late 1840s and early 1850s calling for the payment of jurors.97 In October 1852, George Okill Stuart, a former mayor of Quebec City, asked the assembly to consider paying jurors in Lower Canada. He said that the jury law was ‘absolutely ruinous to the poor man who is taken away from his family and business,’ because he was sometimes compelled ‘to come to court two or three times in one year, at great expense, and without remuneration.’ He claimed to be representing the wishes of

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his constituents, many of whom were farmers. The Attorney General of Lower Canada, Lewis Thomas Drummond, replied that in Upper Canada municipal councils taxed their citizens to pay for jurors, and the same principle should apply in Lower Canada.98 The legislature took no action in 1852, but the issue came before the assembly again in 1854, a key political year for the Canadas. In 1854, many dissatisfied voters in Upper Canada turned to the more radical reform Clear Grit faction. In order to stay in power, moderate reformers in Lower Canada entered a coalition with the Conservatives and moderate reformers in Upper Canada to create a ‘Liberal-Conservative’ party (later to become simply the Conservatives). The Clear Grits aligned with the Liberals and the Rouges of Lower Canada to eventually create the Liberal Party. In 1854, lawyer and journalist Charles Daoust asked the assembly to consider providing pay to Lower Canadian jurors in criminal prosecutions,99 and in May 1855 the assembly debated decentralizing the judicial system of Lower Canada and temporarily paying petit jurors. Attorney General Drummond had softened his view since 1852; he stated that funds from the consolidated revenue fund of the province could pay jurors temporarily.100 The proposal raised the ire of many Upper Canadian legislators, but the government agreed to provide funding for Lower Canadian jurors after the Lower Canadian members threatened to withdraw their support for the government. The leading opponent of the measure was George Brown of the Clear Grits. Brown generally advocated strongly for Upper Canada’s interests in the assembly; for instance, he urged that the representation by population principle should determine the assembly’s membership, much to the chagrin of Lower Canadians, who feared that ending the equal division of seats in the assembly between the Canadas would reduce the voice of Lower Canada.101 Brown was against the measure for several reasons. He said the drawing of large sums out of the consolidated fund for local purposes in Lower Canada had to end. Too much money had already been used for ‘local’ initiatives such as jails and courthouses. Brown reported that Attorney General Drummond had estimated that 5,000 pounds per year would be necessary to pay jurors, but he concluded that this ‘would be nothing like the amount,’ pointing to the fact that in the County of York alone the payments to jurors cost 1,600 pounds the previous year. He thus queried ‘how then could the whole Jurors of Lower Canada be paid 5,000£?’ Brown was especially angry because he said that most of the necessary money would come from Upper Canada. He argued

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that Upper Canadians would ‘feel it most unjust and oppressive that they should thus be taxed for the payment of Lower Canada Jurors,’ while at the same time they were compelled to pay a local tax for their own jurors.102 Joseph-Édouard Turcotte, a Lower Canadian member of the Liberal-Conservatives, emphasized that the measure had considerable popular support in Lower Canada, and he threatened that the members of the government in the assembly from Lower Canada would withdraw their support from the government if payments did not come from the consolidated fund. Faced by such a threat, the assembly passed the bill.103 The Upper Canadian press was unimpressed by this turn of events. The Perth Courier was incensed. It asked ‘why Lower Canada jurors are to be paid out of the general revenue, while Upper Canadians are compelled to tax themselves to pay their jurors? Is it right? Is it justice to Upper Canada? We think not.’104 Similarly, the St Thomas Weekly Dispatch complained that, ‘while Upper Canada has to pay her own Jurors, she has in addition to pay more than one-half of the wages of the Jurors of Lower Canada.’ The act was ‘to say the least of it, an unjust and iniquitous one.’105 Upper Canadian municipal councils, already cranky under the burden of paying jurors, soon petitioned the legislature over the funds allocated for Lower Canadian jurors. The 1855 act had included a provision that 5,000 pounds could also be provided to municipalities in Upper Canada, but some members of the assembly considered this to be nothing more than an attempt to placate Upper Canada, and, in fact, it seems the government never provided this money.106 In 1856, the municipal council of Torbolton Township in Carleton County petitioned that jurors be paid for their attendance in Upper Canada as in Lower Canada out of the general revenue of the province. The municipality argued that ‘the greater proportion of the Provincial Revenue is derived from Upper Canada,’ and that it was thus ‘unjust that the Jurors attending the administration of Justice in Upper Canada should not receive a like sum.’107 Similarly, in 1858 the municipal council of Brant requested that jurors in Upper Canada also be paid out of the public funds of the province, since the methods used to raise the money to pay jurors had proven inadequate.108 Remarkably, despite the continued complaints by municipalities concerning the cost of the jury system, Attorney General John A. Macdonald introduced legislation in 1856 that increased the fees provided for sheriffs and clerks of the peace for their roles in jury selection.109

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Despite Macdonald’s decision to raise fees, the cost of the jury system motivated his government to pass one last major jury reform statute before Confederation. Postmaster General Sidney Smith received responsibility for amending the jury laws.110 Smith was a lawyer who had served in municipal government before his election to the assembly as a reformer in 1854. In 1856, however, he joined the government of John A. Macdonald, and in 1858 he became postmaster general.111 In part, his time in municipal government seems to have shaped his agenda for jury reform, for he was concerned about the expense of the 1850 jury act. He thus explained to the assembly that the existing jury laws resulted in the selection of far too many potential jurors. He also complained that there were three balloting processes: ‘This was perhaps intended to guard against the possibility of a partial and improper selection by the government officials,’ he noted correctly, but he ‘could not see that the proper place to apply the ballot was in the selection of jurors,’ because this did ‘not ensure the selection of a good over a poor class of jurors.’112 In other words, he believed that the 1850 act had been designed to eliminate jury packing, but with the result that jury selection was too costly and failed to ensure the choice of quality jurors. The initial stages of jury selection under Smith’s act remained similar to the procedures set out in earlier legislation. Township committees met and selected two-thirds of the names on the assessment rolls as eligible jurors, then balloted one-half of the names they selected.113 The committees then sent their reports to the clerk of the peace for the county.114 It was at this stage that Smith’s act substantially deviated from the 1850 act. The new legislation required that a second committee, a ‘county board of selectors,’ determine whether the jurors approved by the first committee of selectors should be placed in the groups of potential jurors ordered by the Quarter Sessions. This new committee consisted of the chair of the Quarter Sessions, the county clerk of the peace, the county warden, the treasurer, the reeves then present, and the sheriff of the county, or any three of these officials. The clerk of the peace named the first person from the jurors’ book, and if the person was not excluded on the ground of previous service, nor objected to by a member of the committee, the name of that person would be added to the pool of potential jurors for which he was eligible (according to the township committees). The act thus used the discretion of county officials to help ensure the quality of jurors. The sheriff then created jury panels for the courts by balloting, and at trial a ballot process selected the trial jury.115

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Smith’s act received a cold response from opponents of the Conservative government. William Lyon Mackenzie recalled the pre-1850 allegations of jury packing and expressed deep concern that the new system again allowed officials to stack juries. He wrote to his son that he had fought unsuccessfully to ‘preserve our popular jury laws which we struggled so hard to obtain.’ The county boards of selectors, he believed, were composed of a majority of officials who received their positions from the government, and thus would be willing to pack juries.116 The Toronto Globe expressed similar reservations over the employment of a second committee: ‘The selection of Juries under this Bill will be in the hands of Government officials at that very point where, to secure the liberty and safety of the subject, the ballot ought to be interposed.’117 Despite the concerns of the Globe and Mackenzie, however, there were few complaints in the future over packed juries. Citizens of Upper Canada instead continued to focus on the cost and inconvenience of jury selection procedures. More petitions from municipalities flooded the legislature after the passage of the 1858 act, though municipal officials were concerned more with cost than with liberty. Most of these petitions have been destroyed,118 but a number of surviving petitions to the legislative council provide insight into the complaints of municipalities. Many charged that jury selection remained too expensive. For example, the municipal council of Simcoe County believed that jury selection could be more effective and less expensive. The council argued that if ballots were ‘entirely discarded,’ and ‘the selection left wholly to the discretion of the local selectors of the various municipalities,’ then the lists would contain only the names of people truly qualified to act as jurors. The county boards of selectors, which were ‘cumbersome and expensive’ and ‘ineffective to secure the end desired,’ would be unnecessary.119 The municipal council of Elgin County complained in 1861 that ‘the present system of selecting Jurors is cumbersome and unnecessarily expensive.’ It also targeted the use of two selection committees, and suggested that ‘in place of two selections of jurors being made annually that only one take place.’120 The municipal council for the County of Lambton also called the jury laws ‘cumbersome and expensive’ in suggesting changes to the selection process.121 Statistics compiled by the legislature provide some indication of why municipalities continued to critique the jury system. In 1860, the assembly received a report that summarized the number of jurors chosen and the expenses incurred in operating the jury system.122 As a composite

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return of jury selection across Upper Canada, the report provides a sense of the huge scope and expense of the process. The report indicated that township jury committees in thirty of thirty-one counties had chosen and arranged 47,806 names and forwarded them to the clerks of the peace.123 The county boards of selectors (in all thirty-one counties) then chose 17,748 jurors. It took the county boards anywhere from two to twelve days to complete this selection. Across the entire province, fees paid to clerks of the peace totalled $8,780. Treasurers handed over $18,725 to sheriffs for their jury duties, and $4,009 to county boards of selectors.124 These figures, while large, capture only part of the jury system’s cost, as the assembly did not collect data on the remuneration paid to jurors or the members of township committees. Smith subsequently offered new proposals for jury reform, in the hope of reducing the expense of the jury system to municipalities.125 He proposed decreasing the compensation for jury selectors, regardless of how many selectors appeared or how long they worked.126 Opponents of the bill questioned whether committee members would show up for duty for only a few dollars.127 The bill nevertheless passed in the assembly, but failed to get through the legislative council.128 Smith tried again, unsuccessfully, in 1862.129 The 1850 act had unintended consequences for the jury that proved just as damaging as the earlier concerns about political packing. The legislation proved remarkably costly. The act’s requirement that jurors be drawn from all parts of each county only aggravated the distaste for jury service, requiring the colony to implement a system of juror pay that further burdened the financial resources of local governments. Officials received substantial amounts of compensation for the inconvenience caused by the act, but always found their remuneration unsatisfying. In time, many Upper Canadians began to doubt that juries were worth the time, effort, or money. Liberal Criticisms of Juries The increased cost of the jury system caused by the implementation of the 1850 jury act was an important factor in the decline of juries in the nineteenth century. Juries in Upper Canada also came under attack as the intellectual mood increasingly sought to pursue the liberal values of uniformity, certainty, and efficiency in legal proceedings.130 As in Nova Scotia, the liberal complaints about juries emerged by the late 1850s and grew in strength considerably in the 1860s.

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Commentators often charged that juries were too unpredictable, and were thus unable to apply the law equally across Upper Canada. The Hamilton Evening Times suggested in 1864, for example, that ‘tossing up a copper would be almost as good a way of deciding whether a person accused will be convicted or not.’131 This was sometimes blamed on the composition of juries. The 1850 jury act retained property qualifications for jury service. Some liberals, however, found this unacceptable, suggesting that only educated individuals could qualify as appropriate decision-makers. In this view, even farmers who owned their land – men of sometimes substantial property – were not qualified to determine legal questions. ‘Mark,’ for example, levelled especially forceful attacks against juries in the Ottawa Times in November 1866. The problem was that jurors lacked the training to settle disputes predictably, often because they harboured biases, some conscious, some unconscious. Mark said that jurors’ ‘guesswork (for a jury’s verdict is often little better than guesswork,) is no doubt honest,’ but that it was honest as far as a very moderate education, as far as very little experience in judging conflicting points in evidence, as far as their prejudices, which like our natural skin, we all wear so closely that we know not we have them, and finally, as far as the innate infirmities of men can render guesswork honest.132

Mark offered a typical solution to this problem: he advocated allowing professional judges to settle all disputes. If judges decided issues of fact, ‘we would have responsible, impartial, and intelligent arbitrators, trained by years of severe study, and practice in culling truth from conflicting testimony.’ Judges were ‘above the bribe of parties, above suspicion of favoritism, and above all influence from any power,’ and thus judges would better protect the rights of citizens than a system of juries ‘born in a rude age.’133 As Mark suggested, ‘professionalism’ distinguished judges and juries. Commentators such as Mark believed that judges, though chosen in the nineteenth century according to their political party affiliations, possessed the ability to divorce themselves from personal feelings because of their education and legal experience. Unpredictable jury verdicts were thought to reflect the fact that the law had become too complicated for jurors to administer, particularly the farmer-jurors of rural Upper Canada. The Perth Courier made this point in 1850 when it reprinted a claim by the Bytown Gazette that the farmers in Upper Canada lacked the ability to act as jurors. The Bytown Gazette had said that ‘trial by jurors is a mockery,’ and that the petit jur-

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ors would be ‘much better “at home digging potatoes,” instead of deciding intricate commercial cases, which “the vulgar and uneducated” are unfit to investigate.’134 According to the Hamilton Evening Times in 1863, lawyers took advantage of the simplicity of jurors. Lawyers tried to confuse jurors, with the result that juries ‘return a chance verdict, or else disagree, and the whole farce has to be gone through with again.’135 The criticism of farmer-jurors, and frequently of juries generally, also became a common complaint in the Upper Canada Law Journal, Upper Canada’s first legal periodical, which began publication in 1855. James Gowan established the journal as a means of influencing opinion and lobbying for change. Gowan became the judge for Simcoe District in 1843, but he remained intent on encouraging legal reform despite his judicial office. He thus formed an agreement with the editor he hired for the Upper Canada Law Journal, which allowed Gowan to publish articles in the journal without attribution. In this way, he could put ideas before the public, and then promote them with an appearance of disinterest. Gowan, a student of liberal thinker Jeremy Bentham, used the journal to promote a series of reforms, including the reduced use of juries.136 In 1856, a writer in the Upper Canada Law Journal (probably Gowan) mused that farmers were ‘better accustomed to the bracing air of the fields than the noxious miasma of the Juror’s room’; they were ‘better accustomed to ploughing and other out-door exercise than the solution of abstract question of facts and applications of knotty points of law.’137 Jurors offered evidence of their supposed unpredictability or unprofessionalism when they came to surprising verdicts or demonstrated a lack of awareness of their own roles and responsibilities. For example, in Regina v. Fellowes et al., the jury convicted four men for election fraud. The defendants appealed on several grounds, including that the jurors had made their decision through a majority vote.138 The St Catharines Constitutional, a Conservative newspaper, offered some of the most damaging evidence against juries. In November 1864, it discussed a case in which a jury had become confused about whether it had been asked to decide a criminal or a civil matter. ‘What a palladium for our rights and civil liberties trial by jury must be,’ wrote the Constitutional, ‘when these gentlemen … after hearing all the testimony, are at a loss to know whether they are trying a case of forgery or a case of debt.’139 The Constitutional followed with even more pointed criticism. It discussed an important case in Toronto in which the jury failed to agree, despite supposedly strong evidence favouring one party. ‘Can-

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ada has already obtained a very unenviable notoriety for failures of this kind, through the ignorance or criminality of a minority of those who compose juries,’ suggested the newspaper.140 The ability of jurors to contemplate community standards had traditionally been considered the strength of juries, but in the liberal view it had become a fatal weakness. For example, in May 1866 the Constitutional explained why it believed the jury system had become an anachronism. The jury had once protected English liberties. In Upper Canada, however, the risk of political tyranny had been eliminated with the granting of responsible government. In this view, responsible government meant rule by bodies elected by individuals possessing equal rights, not rule by unelected elites. But juries, the Constitutional charged, had become instruments of a new type of tyranny – local discretion. Jurors were supposed to decide cases according to the evidence provided to them, not according to their own knowledge of the litigants and the case, or because of their own sense of a proper moral outcome. ‘Verdicts are rendered in our Courts almost every day which set all the laws of evidence at defiance, and the worst criminals go unscathed of justice, through the imbecility, the want of moral sensibility, or the prejudice or stupidity of the jury,’ it argued.141 In 1865, the Toronto Globe also emphasized that the jury was an anachronism, given that Upper Canadians no longer had to concern themselves with the threat of government tyranny in an era of equal citizens and democratically elected legislatures. Trial by jury, the Globe explained, was designed as a ‘check upon the Crown and the nobles, and a safeguard for the people,’ in an age when ‘Government was not based on popular suffrage.’ There was, however, a ‘striking difference between the twelfth and the nineteenth century, between the barbarism of a feudal age and the advanced civilization of the present.’ Thus, many people were ‘beginning to inquire whether it is not wise to consider how far our present system of trial by jury can be safely modified.’142 British North Americans had traditionally invoked English history to defend juries, but, as the Toronto Globe’s comments suggested, such assertions lost much of their persuasiveness when responsible government decreased fears of state oppression, and when liberalism valued equal application of the law, not local discretion. Commentators who complained about the competence of jurors to fairly decide legal questions often took aim at the jury selection procedures created in 1850. While the combination of balloting and discretionary judgments made by the committees was meant to prevent

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packing and ensure good quality jurors, many believed that the procedures lacked the safeguards necessary to ensure competence. Thus, the municipal council of Wentworth asked for an amendment to the jury laws because juries selected under the act were ‘composed of individuals of far less intelligence, integrity of character, and soundness of judgment, than they would be, if selected by choice instead of by ballot.’ The petitioners said that selecting jurors by ballot was ‘the worst principle that could be introduced,’ for ‘the very best men are not selected, and the chances are, may not be for a whole life-time.’143 The Upper Canada Law Journal voiced similar concerns in 1858, noting that the jury selection procedures in Upper Canada meant that the ‘lamentable inefficiency of many jurors who now grace jury boxes is a theme of constant remark.’ What was needed, concluded the journal, was more intelligent jurors.144 The Upper Canadian judiciary also demonstrated less than perfect faith in the competence of jurors in a number of decisions in which the judges of the Court of Queen’s Bench had to decide whether they should quash jury verdicts. The judges, especially Chief Justice John Beverley Robinson, sometimes sent a case back to juries numerous times.145 While Patrick Brode argues that Robinson ‘held the jury system in especially high regard,’ and that ‘in civil matters he usually was content to present the facts to the jurors and leave the ultimate decision to them,’ Robinson’s appellate decisions suggest another conclusion.146 For example, he ordered a second trial (and third overall) in Sanderson & Murray v. The Kingston Marine Railway Company in 1848, a dispute concerning the seizure of barges.147 In Kerby v. Lewis, Robinson ordered a third new trial (and fourth overall) when three juries in the Niagara District refused to find for a plaintiff who claimed that the defendants had infringed the plaintiff’s exclusive right to operate a ferry between Fort Erie and Black Rock in New York state. In Kerby, he noted that to ‘set aside several verdicts in succession in the same cause is doubtless an evil; but it is a less an evil than for a court of justice to admit that there is a plain case of a legal right defied and destroyed, and that the law can afford no protection or redress.’148 In Sutherland v. Black, juries twice found for a farmer plaintiff against a clerk of the Court of Chancery. The farmer had deposited money with the clerk, who later handed over the money to the farmer’s lawyer who then absconded with the cash. Robinson said that the court regretted ‘very much that it has become our duty to order another trial,’ but ‘the due administration of justice requires it.’149 After the third jury decided for the plaintiff,

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Robinson again sent the case for retrial.150 The multiple orders to return cases to trial suggest Robinson’s lack of faith in juries. His decisions concerning jury verdicts had practical results, including increasing costs to litigants and generating a sense that juries were often wrong.151 The Tillsonburg Observer, for instance, noted these judicial decisions, and claimed that they proved that juries should be eliminated. It said that many verdicts were set aside because they failed to accord with judicial instructions, sometimes resulting in three or four new trials, ‘to the ruin of suitors and the scandal of law.’ But, noted the Observer, ‘if the verdict is in accordance with the judge’s instructions, then a jury is unnecessary, for the verdict is really the judge’s and not the juries.’ Thus: ‘Let the present foolish, barbarous jury system be abolished.’152 Problems in the jury system of Lower Canada continued to garner attention in Upper Canada, casting doubt on the ability of jurors to impartially decide cases involving religious or ethnic tensions. Especially damaging were failed efforts to prosecute defendants in cases stemming from sectarian violence. For example, Italian revolutionary Alessandro Gavazzi gave strong anti-Catholic speeches during his visit to Quebec in June 1853 that sparked religious riots between Scots and Irish in Quebec City and Montreal. Attempts to prosecute the rioters ended in acquittals, and Protestants in Upper Canada charged that Lower Canadian Protestants could not receive justice in areas where Catholics predominated.153 This view gained strength with the Robert Corrigan affair in 1855. Corrigan, an Irish convert to Anglicanism, lived in Saint-Sylvestre, an area populated with many Irish Catholics. Brash and quarrelsome, Corrigan antagonized Catholics for their beliefs, and in October 1855 a group of Irish Catholics attacked and killed him. In February 1856, a jury acquitted seven defendants accused of his murder.154 The Corrigan verdict reverberated in Upper Canada, where legislators suggested that it showed the problems inherent in the jury system. In March 1856, Conservative lawyer and Orangeman John Hillyard Cameron presented a resolution in the assembly requesting a copy of the judge’s charge to the jury in the case.155 This resulted in a long debate, in which participants also made references to Lord Durham’s report and the Chartrand trial (discussed in chapter 4) to show that jurors decided cases on religious and ethnic grounds.156 In March 1857, a commission of inquiry into the Corrigan murder made its report to the assembly. The commission noted how political, religious, and ethnic feelings could corrupt the jury system. The commissioners felt that in

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nearly every case like the Corrigan trial, ‘where either national, party or religious prejudice and feelings are greatly excited and inflamed,’ there would always ‘be a very great difficulty in procuring the calm deliberation of a Jury wholly unbiased or uninfluenced on one side or the other.’ This difficulty was ‘not peculiar to this particular locality,’ and existed ‘in all countries under similar circumstances.’157 The Upper Canadian press was just as critical of the Corrigan jury. The Perth Courier thought the jury had given a perverse verdict.158 The Toronto Globe believed that the evidence had clearly proven guilt, yet the acquittal meant that ‘we need not expect just verdicts in less important trials which are, in a measure, withdrawn from the public eye.’159 The Globe also compared Corrigan’s case with the trials following the Gourlay shanty riot in Nova Scotia. The trials in Nova Scotia, ‘ended, like the trial of Corrigan’s murderers, in the acquittal of the rioters, amid the plaudits of the Roman Catholic population of Halifax, whose active sympathy, no doubt, secured that result.’160 The jury’s reputation had again been tarnished. While particular events, such as the Corrigan case, damaged the image of trial by jury, it also suffered because, according to Jeffrey McNairn, there was a broad decline in the faith in reasoned public debate of citizens in the 1850s. He argues that by the 1830s and 1840s it was widely believed that government had to be accountable to ‘public opinion’ in Upper Canada. That is, legislators had to reflect the opinions espoused in informed public debate. By the 1850s, however, McNairn suggests that the value placed on ‘public opinion’ had decreased. A sense emerged that public opinion had to be managed and controlled – that the rule of the mass of people would not necessarily result in reasoned decisions. Government policy increasingly came from the political parties and the government bureaucracies, rather than from citizens. ‘The premiums on reasoned debate were reduced while the incentives for spectacle and partisanship mounted,’161 suggests McNairn. The general decline in faith in public opinion identified by McNairn also infused the discourse concerning the jury. The Toronto Globe clearly captured this in 1865. It argued against continuing to use juries by detailing the limited ability of jurors to reach reasoned verdicts. ‘Without early education and immersed in business, they are totally ignorant of jurisprudence, of legal technicalities, and of the forms of courts,’ it suggested. According to the Globe, jurors lacked more than expertise. They also lacked the ability to sustain reasoned debate:

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When they enter the jury box, they lack the power of close discrimination, of logical analysis, and of patient endurance, which are necessary to the investigation of evidence, to the appreciation of the statements of witnesses, to the detection of the sophistries of counsel, and to the comprehension of the directions, with the reasons on which they are based, delivered to them by the judge in his ‘summing up.’ Their minds wander to other things; they become listless and impatient; they think of home, of the farm, of the shop, perhaps more than of the question of life or death which they are summoned to decide; and, unconsciously to themselves, they fall into that state of physical inactivity and mental repose, in which an impassioned address will have more influence upon them than a train of closely connected reasoning, and in which they may become a prey to prejudice and feeling, regardless of the chains of conscience and reason.162

If public opinion could not be trusted to reach reasoned decisions concerning public policy and legislation, then neither could juries be trusted to make informed and consistent judgments. Legislative Responses to the Criticisms of Juries The concerns over the cost and inconvenience of administering the jury system combined with liberal critiques of juries to motivate several attempts to reform the jury in the late 1850s and early 1860s. These reforms included a further reduction in the role of grand juries, an expansion of the scope of summary proceedings, and the elimination of the unanimity rule in civil cases. While many of these proposed reforms did not become law in the decade before Confederation, similar proposals would, in time, be implemented in Ontario, as will be shown in chapter 8. The successful implementation of incorporated municipal government in Upper Canada in the 1840s had substantially reduced the role of grand juries. Grand juries were left only to issue presentments on local affairs, inspect public institutions, and evaluate criminal charges to determine whether cases should be heard by a petit jury.163 During the 1850s, the last of these roles also came under attack. Tory lawyer William Badgley issued an early critique in discussing Baldwin’s jury bill in 1850. He suggested that the colony get rid of grand juries, contending that grand jurors were ‘useless in criminal proceedings,’ and that a public prosecutor could more readily complete their role. He believed that the pressures of public opinion and the press would

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prevent public prosecutors from acting unjustly. He also noted that a strong feeling against grand juries existed in England, and that some of the best and brightest English jurists had criticized their continued use.164 While Baldwin responded by arguing that the people of Upper Canada favoured the retention of grand juries,165 Badgley’s comment reflected an emerging belief that lawyers could evaluate charges better than grand juries. Such faith in the legal profession would lead to limits on juries in Upper Canada. As in Nova Scotia, the legal profession expanded rapidly in Upper Canada in the mid-nineteenth century, and lawyers increasingly competed with traditional power brokers in many locales.166 Lawyers played a key role in furthering nineteenth-century liberal state formation. As Allan Greer and Ian Radforth note, the learned professions organized themselves into corporate bodies ‘and fought for and acquired a legal basis for exclusive privileges.’167 These privileges were granted by the state, thus creating symbiotic relationships between professional bodies and the state. With a strong self-regulating body in place in the Law Society of Upper Canada, the colony’s lawyers played important roles in business and in developing government policy at mid-century. In addition to their regular practices, Upper Canadian lawyers, even more than their English counterparts, also acted as principals in business – as entrepreneurs, company presidents, directors, real estate developers, and investors in railways and new banks. These roles, in turn, led lawyers to promote business goals as lobbyists and politicians. Lawyers frequently entered colonial politics and passed acts that assisted business. Just 17 per cent of Upper Canada’s members of the assembly were lawyers in the period between 1791 and 1841, but by 1848 lawyers constituted over half of Upper Canada’s representatives.168 Carol Wilton surmises that responsible government allowed these newly elected lawyers ‘to effect a degree of modernization and rationalization by putting in place a network of institutions that promoted the development of a liberal capitalist state and economy.’169 As Wilton concludes, lawyers ‘set the agenda of politics beginning in the 1840s and 1850s with the object of rationalizing, modernizing, and systematizing the legal framework of the United Canadas.’170 The legislature was not the only arena in which this growing group of lawyers asserted control. The nineteenth-century transformation of the justice system in Upper Canada saw the legal profession gain control of ‘all levels and all aspects of criminal justice, replacing instruments that for centuries had drawn broadly upon the community or

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– more correctly – community élites.’171 The career of judge, publisher, and law reformer James Gowan illustrates this transformation. After completing his articles in 1839, Gowan received an appointment to a judgeship for Simcoe District in 1843 at the age of twenty-seven. Simcoe was the largest district at that time in Upper Canada, and was a rough and ready place. The magistracy of Simcoe initially resisted Gowan’s appointment because he had usurped much of their judicial role after they had just lost most of their importance in local governance with the 1841 District Councils Act. Gowan travelled through the district on horseback, presiding over several courts and involving himself in the district’s educational affairs. He brought to Simcoe a large library of law books, and for many years had the only good law library in the district.172 Gowan’s efforts extended the reach of the liberal state, promoting a more uniform application of the law across the colony. This emphasis on professionalism resulted in a substantial decline in the role of grand juries in the criminal justice system. In 1857, the legislature passed the County Attorneys Act, which created local Crown prosecutors who held their positions at the pleasure of the government and enforced the colony’s criminal laws. The new Crown attorneys had broad powers to institute and conduct prosecutions. Crown attorneys replaced the ad hoc system in which the Attorney General appointed local lawyers to prosecute cases for the Crown. The new Crown attorneys received evidence connected with a criminal charge, possibly ordered the gathering of additional evidence, compelled the attendance of witnesses, drafted indictments, and, at the Quarter Sessions, conducted prosecutions. This development presaged public supervision of the prosecutorial process in England by more than twenty years, and represented a substantial increase in the government’s power to uniformly enforce the criminal law across the colony.173 The appointment of Crown attorneys affected the perception, and then the role, of grand juries. Nancy Parker suggests that they ‘made the review of cases by the grand jury appear out of step in the increasingly professional milieu of the courts.’174 While some commentators defended the jury in traditional terms as a defender of liberty,175 others expressed frustration at having grand jurors dismiss cases prepared by professional Crown attorneys.176 There were also complaints that parties sometimes abused the grand jury’s ability to indict at the assizes. James Gowan advocated for the creation of permanent, salaried prosecutors, and his Upper Canada Law Journal suggested in 1859 that grand jury proceedings afforded ‘great facilities for gratifying private

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malice under the form of a public prosecution.’ The Crown attorney had placed limits on malicious proceedings at the Quarter Sessions, but there was still ‘very little protection from injury at the Assizes, and in practice as a general rule, parties are allowed as of right to go before a grand jury with their charges.’177 This concern led the legislature to pass an act in 1861 that sought to limit malicious prosecutions by preventing grand juries from finding indictments based upon nothing more than presentments. The legislation limited the ability of grand juries to find indictments for perjury, subornation of perjury, conspiracy, obtaining money or other property by false pretences, keeping a gambling house or a disorderly house, and indecent assault, unless the charges had been scrutinized in a preliminary investigation and communicated to the parties.178 For their part, grand jurors did not seem to resist the movement to reduce their role in criminal trials, probably because, as has been shown, jurors found jury service time-consuming and wanted proceedings to move along quickly. In fact, grand jurors themselves sometimes requested that minor criminal cases be handled summarily to save cost and their time. In April 1851, for example, grand jurors in Hamilton noted that they had several cases before them for petty larcenies ‘of a very trifling amount,’ and they thus suggested ‘that some summary mode of disposing of such cases should be introduced which would save the valuable time of the Court and Jury, and also reduce the expense entailed on the District.’179 The critiques of grand juries led to several calls before Confederation that grand juries be abolished, in addition to Badgley’s suggestion in 1850. In April 1862, the municipal council of Brant petitioned the legislative council to eliminate grand juries. The municipal council argued that there was a growing conviction that grand juries were ‘of great antiquity,’ but were ‘not absolutely necessary to the due administration of justice.’ The duties of the grand juries should be transferred to Crown attorneys, suggested the council.180 Concerns with inconveniencing jurors motivated the introduction in the legislative council of a bill in 1860 to abolish grand juries in Recorder’s Courts.181 Council member and lawyer Alexander Campbell explained that the bill would ensure that the bankers, merchants, and shopkeepers who principally composed these grand juries would not be taken from their businesses. In addition, he suggested that police magistrates could inquire into the merits of cases and decide whether they should go to trial. It did not make sense, Campbell said, to form grand juries ‘to make a formal inquiry into what had already under-

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gone investigation,’ for this was a ‘great waste of time both to them, the Court, and its officers.’182 The assembly did not pass the bill, but in 1868 the provincial government settled the matter by eliminating the Recorder’s Courts.183 As will be shown in chapter 8, debates about the roles of grand juries continued after Confederation. The liberal critiques of juries and the resulting desire of many legal professionals to reduce the uncertainty created by juries, also led to calls for the elimination of petit juries in certain courts. For example, in July 1850 the North American Semi-Weekly published a draft bill of rights, which included sections calling for the elimination of juries unless parties asked for them.184 William Buell Richards introduced a failed bill in the assembly in 1851 that would have dispensed with trial by jury in certain cases,185 and in 1852 Rowland Burr, a wealthy landowner and contractor living in Toronto, asked the legislature to eliminate juries, except when parties desired them, as was done in the Division Court.186 The Upper Canada Law Journal elaborated upon the reference to Division Courts in 1856. It rightly noted that a blow had already been struck to the jury system. The journal’s analysis was published anonymously, but was likely drafted by the journal’s owner and secret contributor, Judge Robert Gowan, who served on the Division Court in Simcoe District and was thus well aware of the operation of that court.187 With the Division Court Act of 1841, the legislature eliminated the Courts of Requests in Upper Canada and replaced them with Division Courts. Barristers presided over the new Division Courts, a change that represented a substantial decrease in the lay administration of justice. The jurisdiction of the new Division Courts, like the Courts of Requests, was ten pounds, though either the plaintiff or defendant could ask for a five-person jury trial if the litigation concerned more than two pounds, ten shillings.188 According to the Upper Canada Law Journal, experience had shown that parties in the Division Courts rarely requested juries, and therefore jury trials were ‘almost unknown in the Division Courts.’ The journal emphasized liberal values in explaining this trend, noting that ‘speed, cheapness, and certainty of decision’ encouraged litigants to have judges decide their cases.189 Oliver Mowat, the future Liberal premier of Ontario, introduced a bill into the assembly in 1859 to eliminate trial juries in civil cases. The bill did not pass, but an intense exchange between Mowat and his opponent in post-Confederation federal-provincial relations, John A. Macdonald, demonstrated very different perceptions of the roles of judges and juries in Upper Canada. Mowat had completed his articles

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under Macdonald in Kingston and won his seat in the assembly in late 1857, but from that date, according to one contemporary, Mowat and Macdonald ‘were at daggers drawn.’190 Mowat had opposed Smith’s 1858 jury act on the ground that it would allow jury packing, and in 1858 he defended the use of juries in criminal cases, but in 1859 he took aim at the jury system.191 He proposed allowing judges to decide all civil cases, unless one of the parties asked for a jury. As a lawyer, Mowat had practised in equity, where judges decided cases alone.192 This seems to have affected his view of the value of trial by jury. He noted in the legislature that the Court of Chancery and the Division Courts operated without juries. Mowat then demonstrated an impressive faith in liberal principles and the professionalism of judges, whose expertise he juxtaposed with the biases held by jurors. According to Mowat, it was not reasonable to say that a judge who is sworn to perform his duty, who has made the investigation of truth the study and the practice of the greater part of his life, is inferior as to the means of getting at the truth to a party of twelve men who may be discharging for the first time this very important function which they are called upon to exercise.193

Mowat argued that other jurisdictions had adopted, or planned to adopt, proposals similar to his, including England, New York, and other American states. Macdonald responded by emphasizing that Mowat’s proposal would be a substantial change, and by expressing his reluctance to undertake it considering that the assembly had not received a petition in favour of the plan.194 According to J.K. Johnson, Macdonald generally believed that existing laws were ‘wise, humane, and necessary and that constant vigilance was required to see that they were not weakened or tampered with.’195 His reaction to the bill substantiates this view. He called the proposal a ‘violent change – and one that ought to be well considered before it was made’ for the jury system was ‘one of the most timehonored and most valued of our institutions.’ Macdonald emphasized that juries helped educate men in the laws of the country, as well as teaching self-reliance and self-confidence. He also argued that judges, though versed in the law, were ill-suited to applying that law in the various parts of Upper Canada. The judges could hardly be expected to have ‘a general acquaintance with commerce, agriculture, and other business with which the juries chosen might generally and very fairly

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be supposed to have.’ As a result, the bill would be ‘a dangerous experiment.’196 Macdonald thus refused to adopt Mowat’s bill; reductions in the use of petit juries would have to wait until after Confederation. Liberal criticisms of juries and concerns with the cost of the jury system also motivated efforts to weaken the unanimity rule in civil cases. These attempts represented last-ditch efforts to save the jury – to make it resonate with contemporary ideas of proper decision-making, and to limit the ability of juries to frustrate justice through hung juries. Juries that failed to agree fuelled the sense that jurors were inefficient and irrational legal decision-makers. Newspapers in the late 1850s and early 1860s were filled with references to juries that could not reach a verdict,197 and Chief Justice John Beverley Robinson claimed in 1859 that the number of hung juries had increased substantially in both civil and criminal cases over the previous thirty years.198 The debate that took place over ending the unanimity rule was among the most heated in the history of the jury in mid-nineteenth-century Upper Canada. Unlike Nova Scotia, however, which quietly adopted a rule in 1856 that seven of nine jurors in civil cases could reach a verdict if they had failed to come to a decision unanimously after four hours of deliberation, legislators failed to pass a bill to eliminate or relax the unanimity rule in Upper Canada before Confederation. Calls for ending the unanimity rule gained prominence with the emergence of a broad-based critique of juries in the late 1850s.199 Critics of the rule employed a variety of arguments in calling for reform. For example, in its presentment in April 1857, the grand jury of the Toronto Recorder’s Court advocated ending the unanimity rule by making analogies to the decision-making processes of legislators and the judges of the appeal courts. Legislators and judges made decisions by a majority vote, and thus ‘verdicts may be as appropriately and correctly given by Juries on the same principle.’200 The Toronto Globe agreed with the grand jury’s presentment, casting doubt on the ability of jurors to reach reasoned judgments. The problem was that just one juror could wreck a case. ‘In the jury room, dogged stolidity is put upon a level with candour and intelligence,’ the Globe explained, and thus ‘one thick-headed Yahoo, whose cardinal merit consists in the power of enduring hunger, becomes the de facto Czar of all who have the misfortune to be caged with him.’ The Globe also pointed out that ethnic and religious conflict made these problems worse because one or two individuals, ‘influenced by some such sinister motives,’ were able ‘to stultify the plainest dicta of law and equity, and, as in the notorious Corrigan trial, enable murder-

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ers to leave the bar with triumphant impunity, and snap their bloodstained fingers in the face of the hangman.’201 Other critics focused on the damage hung juries inflicted on commerce and dismissed the argument that historical practice was a legitimate reason to continue requiring jurors to find verdicts unanimously. The Toronto Board of Trade took special interest in the issue, sending a petition to the legislative council in May 1857 to argue that hung juries damaged the commercial growth of Upper Canada. The board said that it could adduce ‘numerous cases of the greatest importance to the mercantile community’ where the ‘ends of Justice have been defeated and great delay together with enormous expense entailed on the litigants for no other reason but that one or two Jurors has preconceived opinions on the case in dispute, which could not be removed either by the force of argument or by the justice of the cause.’202 Other critics asserted that the unanimity rule was nothing more than a historical anachronism. In 1857, the Upper Canada Law Journal noted that law reform was sweeping England, and said that the ‘chief ground of defence in favour of the present system is its antiquity, an argument which, if unquestioned, would find us today entangled with all the webs of feudalism.’ More modern times called for reform.203 Lawyer James Patton introduced in 1857 the first of what would be a series of bills in the legislative council to allow juries in civil cases to return verdicts even if not unanimous.204 The bill had some support in the legislative council. John Prince, another lawyer, asserted that there needed to be something more than the ‘antiquity of the present system’ to stand in the way of the bill. Robert Ferrie also supported the bill, since it was well known that obstinate jurors ‘would eat their boots before they would give in.’ Lawyer Adam Johnston Fergusson provided an anecdote in speaking for the bill. He told a story of a juror taking out a nightcap after the jurors had entered the jury room, declaring that he intended to rest until the jury acquitted the defendant. Despite the words of support, the legislative council voted down the bill.205 Patton unsuccessfully attempted to reintroduce the bill in May 1857. He tried yet again in 1858, and this time the legislative council passed the measure which provided that if the jury was unable to agree after six hours of deliberation, then nine of twelve jurors could render a verdict.206 He claimed that the jury’s esteemed role had developed when the Crown was likely to interfere with the rights of citizens. The granting of responsible government, however, meant that the people, not elites, governed the colony, and thus subjects no longer needed the

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protection of antiquated jury rules. Citing liberal law reformer Jeremy Bentham, and the practices in other jurisdictions, he urged the legislature to end the unanimity rule, which he said forced some jurors to perjure themselves in order to achieve unanimous results.207 The bill went to the assembly, but instead of passing an act to abolish the unanimity rule, the legislature ultimately approved Sidney Smith’s 1858 jury act, which altered jury selection procedures in the hope of selecting better quality jurors.208 The Upper Canada Law Journal, for one, expressed hope that Smith’s 1858 jury act would improve the quality of jurors and thus eliminate the problem of hung juries.209 Smith’s act, however, did not placate critics of the unanimity rule, and in 1859 the council again passed a bill dictating that nine of twelve jurors could reach a verdict after six hours of deliberation.210 Liberal Oliver Mowat supported the legislation, but John A. Macdonald’s government was not persuaded. Mowat introduced the bill to the assembly by citing Bentham, and again asking why of all deliberative bodies only petit juries were required to make decisions unanimously.211 In opposing the bill, Sidney Smith took aim at Mowat’s knowledge in the area, asserting that Mowat was ‘a good chancery lawyer,’ where juries were not used, but that he had ‘not had sufficient practice in the trial by jury to press such a measure.’ Smith also expressed a concern that Mowat wanted to use this bill as a wedge that would open the door to eliminating juries altogether. By a vote of forty-eight to thirty-three, the assembly threw out the bill.212 Patton and Mowat did not give up, however. In 1860, Patton again brought the bill to the legislative council. The council passed it, but once again it failed in the assembly.213 Patton made one last effort in 1861, emphasizing the great cost and frequent new trials resulting from the unanimity rule.214 Once again, however, the assembly refused to pass the bill, and debate over the issue subsided until after Confederation.215 The attempts to amend the role and operation of juries reflected the desire of many Upper Canadians to make juries accord with liberal principles. Legislators such as Oliver Mowat sought to increase the scope of summary justice and reduce the use of grand juries out of their belief that professional judges and lawyers would better apply the law uniformly across Upper Canada. Since these proposals failed to garner the support of the Conservative Macdonald before Confederation, efforts shifted to weakening the unanimity rule, thus making the operation of civil juries more amenable to the liberal goals of making justice cheap and efficient.

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Conclusion The desire of political reformers to prevent jury packing, especially in political trials, led them to pass the 1850 Upper Canada jury act. The legislation standardized jury selection procedures across the colony, and removed much of the local discretion that had marked the formation of juries before 1850. The first group of selectors made the only discretionary judgment in the process when they chose individuals from the assessment rolls. The three successive balloting processes then narrowed the names in the jurors’ book to find trial juries. The legislation largely accomplished the goal of preventing charges of jury packing. In the future, there would be but a few such complaints. For example, from Hamilton in 1852 came a charge that a disproportionate number of Tories had become jurors in a libel case.216 A difference between pre- and post-1850 complaints about jury composition, however, was that post-1850 charges generally had less to do with the role of officials responsible for jury selection and more to do with the litigants themselves using challenges to shape juries.217 The decline in complaints led most Upper Canadians to lose their fear that a despotic oligarchy would unfairly select jurors to suppress political opponents. In the responsible government era, Upper Canadians celebrated the idea that the colony would be ruled by democratically elected bodies. The language of English jury ideology – with all of its flourishes – seemed increasingly anachronistic. The 1850 jury act embodied a trend towards increasing state bureaucracy in which local government bodies executed central government policy.218 The legislation, however, was an intermediate measure in the story of mid-nineteenth-century state formation, in that it required that counties bear the financial costs of the new system, costs that would grow over time. Government expenditures increased rapidly in the 1840s and 1850s as state institutions were expanded or created.219 In a time of growing financial demands, it was perhaps unsurprising that the legislature attempted to simply offload the cost of the jury system on local governments. The jury act was also at variance with one of the stated goals of mid-nineteenth century law reformers – that is, that the laws become simpler and more efficient. Implementing the 1850 jury act required money and careful administration. The new jury legislation produced immense amounts of data and required the extensive reporting of this information. This created substantial administrative costs, which no level of government wished to pay. Officials received

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fees for this work, but these officials frequently complained about their incomes due to the allegedly onerous duties imposed by the 1850 act. The trouble and cost of the new procedures caused heated debate, and legislative amendments, throughout the 1850s, and ultimately contributed to the sense that it was better to get rid of the increasingly expensive jury system. The 1850 jury act’s requirement that jurors be drawn from all parts of each county also aggravated complaints about the ardours of jury duty, and thus led the legislature to provide juror pay. Despite calls that jurors be paid from provincial funds, the legislature took the cheapest approach possible, downloading its plan to pay jurors onto local governments, which found themselves burdened by what proved to be substantial costs. As a result, the high expenses incurred from implementing a complex state policy aimed at preventing jury packing continued to hound the jury system. Municipalities petitioned the government repeatedly to decrease costs or to help pay for jurors. Unlike the reformers battling for jury reform in the 1830s and 1840s, the municipalities were not concerned with packed juries in political trials, but simply with achieving cheap and efficient justice. They were left to implement a costly system, and had to grit their teeth when the legislature agreed to help pay jurors in Lower Canada. Liberalism also emerged as a threat to the jury by Confederation. For many affected by liberal thinking, jurors were perceived to lack the competence to evaluate evidence, particularly in complex cases. Compared to professional judges who spent years learning the intricacies of the law, jurors seemed unpredictable vessels of local biases, not wisdom, who were unable to apply the law equally across the colony. Affected by a declining faith in informed public opinion and the emerging liberal discourse, legislators lost confidence in the ability of jurors to reach reasoned and consistent verdicts. As in Nova Scotia, lawyers in Upper Canada soon began proposing liberal reforms that took aim at the jury. The reductions in the role of grand juries, and the proposals to weaken the unanimity rule and expand the scope of summary justice represented liberal efforts to make courts into more professional forums for settling disputes. Sidney Smith’s 1858 jury act sought to increase the quality of jurors, thereby mitigating liberal criticisms, but this act did not end the liberal-inspired complaints, which after Confederation played a major role in the decline of the jury in Ontario.

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PART THREE The Decline of the Jury in PostConfederation Canada, 1867–1880s

By Confederation, the stage was set for a rapid decline in the use of juries in Nova Scotia and Upper Canada (renamed Ontario in 1867). In both jurisdictions, complaints about the cost of the jury system continued. For their part, citizens remained disinclined to serve, and, as a result, did not defend the institution against attacks. Critics imbued with a liberal sensibility charged that jurors were irrational decisionmakers who could not be trusted to apply the law uniformly in different parts of each province. As allegations of jury packing in political cases declined, so did the belief that the jury was a vital defender of liberty. Instead, the jury came to be seen as a potentially oppressive force, although the target of its repressive decisions was increasingly said to be corporations. While jurors had long been suspected of letting ethnic, religious, or political views affect their decisions, concern grew that jurors were also intent on wielding the law as a tool of punishing corporations such as railroads and insurance companies. Businesses, and the lawyers that managed and served them, thus targeted juries for elimination, claiming that professional judges, many of whom had worked for corporate clients prior to their elevation to the bench, were best able to settle disputes. Trial and grand juries thus saw a rapid decline in their roles. The 1869 federal Speedy Trials Act, as well as various provincial initiatives, increased the percentage of cases decided by judges. Also, grand juries took on a largely symbolic role in the criminal justice system, and, in Nova Scotia, finally lost their important role in local government.

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7 ‘We Have Now No Fears of Star Chamber Justice’: The Decline of the Jury in Nova Scotia

The criticisms of juries that appeared in Nova Scotia in the decade before Confederation continued unabated after 1867. These critiques had a dramatic affect, as the importance of juries in the justice and governance systems of Nova Scotia declined substantially after 1867. Liberal ideals increasingly permeated the views of the legislators. A growing desire to ensure uniformity in legal decision-making resulted in greater pressure to eliminate juries in favour of professional judges. Responsible government also led to a reduction in the use of juries during the post-Confederation period in two ways. First, as in Upper Canada, opponents of juries said that juries were anachronistic institutions because the fear of state tyranny had ended. Responsible government was also an important factor in the elimination of the grand jury’s role in local government. By the 1870s, critics charged that allowing magistrates and grand jurors to administer local affairs was irreconcilable with the idea that democratically elected bodies should govern. Concerns over the cost of the jury system also continued to shape post-Confederation reforms, as did a desire to avoid inconveniencing inhabitants with frequent jury duty. Nova Scotia limited the use of juries between Confederation and 1890 in two substantial ways. First, the province reduced the use of juries through the creation of the County Courts, the implementation of the Dominion Speedy Trials Act, and the reform of the province’s judicature acts. Second, the principles of responsible government led Nova Scotia

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to finally implement province-wide municipal reforms that eliminated the role of grand juries in local governance. Reducing the Role of Petit Juries in Nova Scotia Confederation meant that each colony no longer had exclusive control over jury reform. Instead, the division of legislative powers between the Dominion government in Ottawa and the provinces resulted in some initial confusion over the relative jurisdictions of the two levels of government to pass laws affecting the composition of juries. This confusion resulted from the divided jurisdiction over criminal justice. Parliament received jurisdiction over the ‘Criminal Law,’ including ‘the Procedure in Criminal Matters,’ while provinces obtained jurisdiction over the ‘Administration of Justice in the Province.’1 In time, it came to be understood that provincial jury acts could govern ‘out-of-court’ selection (that is, the selection of those individuals who were able to serve as jurors), while the ‘in-court’ selection procedure was a matter falling within the jurisdiction of Parliament.2 Despite this confusion, Confederation meant that, for the first time, changes in the role of juries in Nova Scotia would, in part, be affected by decisions in Ottawa, which, in turn, were frequently shaped by representatives of the most populous and powerful provinces in Confederation: Ontario and Quebec. The implementation in Nova Scotia of the so-called Speedy Trials Act illustrates how policies created to suit the demands of Ontario and Quebec affected the use of juries in Nova Scotia.3 The percentage of criminal offences heard by juries would decline sharply in late nineteenth-century Nova Scotia and Ontario, and the passage of the Speedy Trials Act played a large role in this reduction.4 Judge James Gowan, the admirer of Jeremy Bentham who had used his Upper Canada Law Journal to attack the jury, drafted what became the Speedy Trials Act.5 Passed by the Conservative government of John A. Macdonald, it allowed criminal defendants in all but the most serious cases to opt to be tried before a County Court judge sitting alone rather than wait for the empanelment of grand and petit juries. Given that Macdonald had used traditional English jury ideology to stand in the way of efforts to limit the right to trial by jury in pre-Confederation Upper Canada, the passage of the act during his tenure as prime minister requires an explanation. In part, the Speedy Trials Act can be explained by the fact that there was considerable pressure for such a measure from Ontario. Jonathan

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Swainger argues that Macdonald was keen to forge compromises with the provinces over legal questions during his first tenure as prime minister.6 As will be seen in the next chapter, Ontario legislators launched furious attacks on the province’s juries immediately after Macdonald became prime minister, and thus he may have approved reductions in jury trials in an effort to forge a compromise. John Sandfield Macdonald, the ‘Liberal-Conservative’ member of the House of Commons who was simultaneously serving as premier of Ontario, introduced the speedy trials bill; in doing so, he offered three rationales for the act. First, he claimed that it would benefit prisoners since those found guilty (or who had pled guilty) would be able to start their sentences immediately rather than wait until an upcoming court date to begin their punishment. The second stated motivation was economic efficiency. He believed that the bill would save money by allowing cases to go to trial immediately before a County Court judge, thus saving counties the cost of holding prisoners until they could be tried, a period that sometimes lasted months. He suggested that in the previous five years in Ontario, 1,100 people had been committed annually for trial at the Quarter Sessions or assizes. In 45 per cent of these cases, grand juries had refused to find a true bill or petit juries had acquitted the accused. These innocent prisoners had been in jail for an average of over forty days, during which time the counties had to pay for their maintenance. Macdonald estimated that the annual sum expended in keeping prisoners awaiting trial in Ontario was $13,260, of which $6,000 was spent on prisoners eventually found innocent. Lastly, he pointed out that the prisoners’ labour was deprived from their families while they awaited trial, thus causing considerable unquantifiable personal hardship.7 The act received warm reviews in Ontario,8 but the provisions of the act were not extended to Nova Scotia until 1889.9 The Speedy Trials Act was not extended to Nova Scotia for two reasons. First, unlike Upper Canada after the passage of the 1857 County Attorneys Act, Nova Scotia lacked a cadre of full-time professional Crown attorneys who could determine whether an allegation of criminal activity should result in a trial. The provincial Attorney General was responsible for prosecuting cases for the Crown at the Supreme Court, but the size of this job (particularly outside of Halifax) meant that the judges of the Supreme Court typically selected a senior lawyer present at the court to act as the Crown prosecutor.10 These lawyers received fees for their work, which made them cheaper than salaried Crown attorneys. The challenge of paying for criminal prosecutions was a frequent

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topic of debate in the Nova Scotia Assembly in the 1870s. The British North America Act’s provision that the Dominion government take responsibility for the criminal law was interpreted to include, for example, the construction and upkeep of penitentiaries, and the welfare of prisoners in those penitentiaries. Nova Scotia’s politicians argued that the Dominion government was also responsible for prosecuting the criminal law, but Ottawa was reluctant to pay for these prosecutions. After Confederation, the Dominion government had repealed Nova Scotia’s criminal laws but left the sections that allowed judges to appoint a lawyer to conduct prosecutions at the province’s expense.11 As a result, lawyers continued to serve as part-time Crown prosecutors, but these men often lacked the full faith of the judiciary, who believed that paying them attorneys’ fees, rather than a salary, risked encouraging unnecessary prosecutions. Not until 1887 did the legislature authorize the Attorney General to appoint full-time prosecutors.12 The second major impediment to implementing the act was simply the absence of a County Court in Nova Scotia. In the early 1870s, a movement emerged to create County Courts. In March 1872, Attorney General Henry W. Smith introduced a bill in the assembly that would have established County Courts. He noted that New Brunswick, Ontario, and Quebec already had County Courts, and claimed that such courts were needed because of a backlog of cases at the Supreme Court. In making this proposal, Smith was careful not to antagonize potential jurors with the prospect of more jury duty. In fact, the challenges of jury duty in Nova Scotia greatly shaped the content of the eventual County Court act in Nova Scotia. The inconvenience of jurors had been a major factor in the elimination of the Inferior Court of Common Pleas in 1841, and petit jurors in most of Nova Scotia were summoned to no more than the two sittings of the Supreme Court since the General Sessions outside of Halifax had had no petit juries since 1841. Smith had practised law in Bridgetown, Halifax, Shelburne, and Liverpool, and the breadth of his experience presumably familiarized him with the concerns of inhabitants over the difficulties of jury duty.13 In introducing the 1872 County Court bill, Smith noted that some ‘slight inconvenience might arise from the necessity of summoning four sets of jurymen each year, as there were to be four courts every year.’ His proposed solution to ‘obviate that inconvenience’ was to provide that just twelve jurors would be summoned for each sitting of the County Court, and that juries of five members should try each cause, three of whom could give a verdict in the event of a disagreement.14 Smaller

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juries meant inconveniencing fewer men. The 1872 County Court bill, however, failed to become law. Attorney General Smith succeeded in passing County Court legislation in 1874, and, once again, the desire to avoid tying up peoples’ time with jury service again played a role in the details of the legislation.15 In introducing the legislation, Attorney General Smith told the assembly that the 1872 bill had led to complaints that ‘juries would not only have to attend from the extreme portions of the county twice every year at the sittings of the Supreme Court, but that they would also have to attend every sitting of the County Court,’ and thus ‘inconvenience and expense would be entailed in this manner upon the jurors, and the county.’ He had therefore considered how to avoid this expense since this was a ‘not unreasonable objection.’16 His proposed solution was to allow for litigants in civil suits to have their cases heard by a judge sitting alone, without the intervention of a jury. The bill allowed people the benefit of trial by jury only if the judge ordered a jury. The judge could order a jury if the claim was for more than $80 and he deemed that there were controverted facts suitable for a jury’s consideration. Rather than draw jurors from all parts of the county, the judge would simply order a return of ten people who were in the court who could sit as jurors. If there was an insufficient number of people in the court to act as jurors, then the sheriff would summon ten people living within five miles of the courthouse. From the ten men brought together, a fiveperson jury would be selected. If all five members of the jury could not agree after two hours, four jurors could reach a verdict.17 Cost concerns obviously motivated this design. ‘The expense of this would be a mere bagatelle,’ said the Attorney General, who reminded the assembly that the juror fees paid by litigants could be raised so that there would be little, if any, expense for the counties.18 The 1874 County Court bill resulted in an extensive debate in the assembly that demonstrated how responsible government and liberal thinking had undermined the perceived importance of juries. When Attorney General Smith, for example, explained the limitations the bill placed on juries, he said that this was acceptable since it was ‘well understood by some gentlemen at least that a jury was not always the safest tribunal.’ ‘Twelve or nine men did not always give the very wisest and purest decision,’ he concluded. This was partly because juries allowed for party feelings to influence verdicts. He emphasized that professional judges were better at determining legal outcomes. Smith also swept aside the traditional belief at the core of English jury ideol-

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ogy that juries were vital to defend liberty. In doing so, he offered a teleological interpretation of the political history of Nova Scotia in which fear of political oppression had been eliminated by the entrenchment of responsible government. By the late 1850s, Nova Scotians had begun to rely less on English legal and political history to argue for political reforms and instead showed a new awareness of colonial history.19 This transition affected the jury. Commentators made fewer references to the English historical narrative of valiant juries standing up against government oppression. In Smith’s view, for example, the empowerment of the assembly decreased fears of political prosecutions, and, thus, obviated the need for juries. There had been times in the history of England when it was necessary to have juries to step in to protect the liberty of the subject against the tyranny of the state, but Nova Scotia was, by contrast, ‘governed by the people, and her judges were of the people, and discharged their duties under the solemn obligation of an oath.’20 Other commentators repeated Attorney General Smith’s claim that the achievement of responsible government had eliminated the need for juries to protect individuals from state oppression. For example, in 1875, the Nova Scotia Supreme Court delivered its judgment in an appeal from a civil trial in which two of the jurors were second cousins of the victorious defendant. Justice Jonathan McCully, a long-time Liberal politician and journalist, delivered the Court’s decision, which overturned the result at trial because of the affinity between the jurors and the defendant.21 ‘The trial by jury was one of the concessions secured to Englishmen forever by Magna Charta,’ he explained with much fanfare. ‘It has always been jealously guarded,’ continued McCully, ‘and judges and jurists of every age have upheld it as one of the bulwarks of freedom.’ McCully, however, noted that the political protections accorded by juries had become anachronistic. He had served in the Liberal Party beside Joseph Howe, yet he expressed no fear that the state would employ the law to suppress opposition: ‘Perhaps in more modern times we do not hold the privilege of jury trials as sacred as did our ancestors, but we have now no fears of Star Chamber justice ever again being meted out to us.’22 Like many others, McCully no longer believed that people had to rely on juries to defend them. The County Court act generally received support from Nova Scotia’s newspapers, which lauded the increased professionalism the court would bring to settling disputes, while not inconveniencing inhabitants with unnecessary jury duty. The North Sydney Herald, for example,

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believed that the bill would see disputes settled more professionally. It noted that the County Court would ‘be administered by qualified judicial authority,’ since they would be ‘invested with extensive jurisdiction, with able Barristers presiding.’23 The Halifax Morning Chronicle was especially pleased that the new courts would rarely use juries. ‘An important feature of the bill is the provision that the Judge shall decide questions of fact as well as law, except in special cases,’ the Morning Chronicle noted. In the opinion of the paper, this experiment was ‘worth attempting,’ since Judges, Attorneys and suitors have been slowly drifting towards the conclusion that, in matters of civil contract at least, the juries of our country are useless. They are generally men who are guided by the judge in their decisions of the matters they are sworn to try; or they take a departure on their own account, in which case the Judge grants a rule for a new trial, and the party that the jury good-naturedly hoped to assist finds himself entangled in the meshes of a legal argument and saddled with heavy additional expense.

The Morning Chronicle also noted that inhabitants in rural areas would not mind the limited use of juries at the County Court ‘where the compelling of jurors to attend, at great sacrifice to their business, is found to be especially burdensome.’24 There were no defenders of juries in the debates over the establishment of County Courts. The Halifax British Colonist was one of the few voices to oppose the creation of the County Courts, but its arguments had nothing to do with the limited use of juries in the new courts.25 The County Courts would eventually contribute to the overall reduction in jury trials. The Dominion government appointed seven judges to the new court in 1876, and the County Court began hearing cases in 1877.26 In the meantime, in 1875, Simon Hugh Holmes introduced a bill to repeal the County Court act. Interestingly, none of the arguments offered for quashing the County Court had anything to do with fears of creating a court that rarely would employ juries.27 The legislature initially established the County Court as a court with only civil jurisdiction. However, during the 1880s there were frequent complaints that criminal business consumed too much of the Supreme Court’s time. As a result, in 1889 the legislature provided the County Court with jurisdiction over criminal matters by extending the provisions of the 1869 Speedy Trials Act. This decision, Philip Girard rightly concludes, ‘came at the expense of the traditional jury trial.’28 The County Court heard

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many criminal cases without juries under the Speedy Trials Act, and, as a result, in some rural areas the Supreme Court would hear almost no criminal business when it went on circuit after 1889. The use of juries in criminal cases in Nova Scotia was thus greatly reduced. Nova Scotia legislators also passed statutes reducing the use of juries in civil suits at the Supreme Court. These measures were advocated by Nova Scotia’s lawyers. In March 1878, Conservative John S.D. Thompson introduced a bill to amend the rules of pleadings and practice in the Supreme Court in Halifax. Thompson was one of Nova Scotia’s leading lawyers before entering politics, and his biographer notes that Thompson ‘liked to make order out of confusion, to clean up, clarify, [and] codify.’29 Thompson told the assembly that the bar of Halifax had prepared the bill, which provided that suits, in actions other than tort, would be tried without a jury in Halifax County, unless the presiding judge decided that a jury should be summoned.30 The role of the Halifax legal profession in drafting the 1878 legislation was important, providing evidence that Halifax’s lawyers had developed a keen dislike for the illiberal institution of trial by jury. Their attack on juries using liberal language also corresponded with an attempt by legislators and judges to limit the liability of corporations for injuries caused to employees and bystanders. For example, a number of appeal court decisions overturned jury decisions that resulted in awards for individuals suing companies for injuries.31 The bar in Nova Scotia grew substantially in the last quarter of nineteenth century, and the province’s lawyers frequently emphasized their own professionalism.32 In comparison, lawyers, as the Acadian Recorder suggested in 1875, held little respect for the decisions of lay jurors. It noted a ‘striking commentary upon the system of jurisprudence, and trial by juries’ at the last sitting of the Supreme Court. ‘In nearly every important cause tried during the sitting,’ the Acadian Recorder explained, ‘rules were taken out to set aside the verdicts rendered.’ This was incredibly wasteful, the newspaper concluded, for ‘little perfected work was therefore achieved in a comparatively long sitting.’ Dockets would remain full because in many cases new trials would be granted on the ground that jurors had made decisions against law, evidence, and the advice of the presiding judge.33 An unnamed author in the Morning Chronicle of Halifax, which opposed Thompson’s 1878 bill, was especially critical of the role of the bar in pushing for the new legislation. ‘The revolutionary barristers charge that now verdicts are with alarming frequency dictated by the passions, prejudices or ignorance of the jury,’ noted

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the author, who rebutted such complaints with sarcasm: ‘It is true that juries err; they are, unlike the all-wise attorney, fallible mortals.’34 The debates in the assembly over Thompson’s bill further demonstrated that the liberal criticisms of juries that had emerged in Nova Scotia public discourse in the late 1850s and 1860s had strengthened by the late 1870s. Several members of the assembly expressed their support for the measure by employing the now familiar liberal language of efficiency and consistency. For his part, Attorney General Alonzo Joseph White believed that ‘there seemed to be a growing feeling that a great many suits’ could be ‘better tried without than with a jury.’35 Simon Hugh Holmes believed that the bill should pass since the County Court had shown that judges could dispatch legal business ‘in one-third of the time occupied by the Supreme Court.’36 Douglas Benjamin Woodworth, a lawyer representing Kings County, emphasized that jurors were typically incapable of coming to rational and consistent verdicts. He said that everyone knew that jurors were ‘entirely unacquainted with the intricacies of the law; they were taken from the middle classes, who hardly understood the technical terms of the law at all.’ As a result, jurors usually just followed the charge of the judge. Lawyers, according to Woodworth, led the attack on juries because any person ‘without the slightest knowledge could go and harangue before a jury, and where counsel differed upon the law, the jury generally took the charge of the judge, so that there was no reason why the judge should not decide in the first instance without the aid of a jury.’37 Opposition to the bill was weak. Otto Schwartz Weeks, a former Liberal Attorney General whom Lieutenant Governor Adams George Archibald had removed from cabinet in 1876 because of his predilection for drinking and unusual behaviour, called the bill an extreme innovation, noting that the assembly was ‘dealing with a principle as old as the days of Alfred the Great.’38 Weeks, however, also agreed to support the bill so long as it was amended to allow either party to insist on a jury, a proposal to which Thompson agreed. The act provided that for a number of actions in Halifax, including libel, slander, criminal conversation, seduction, malicious prosecution, and false imprisonment, juries were to be used unless the parties waived their right to a jury trial. Judges at the Supreme Court were to find verdicts in all other civil causes, unless one of the parties requested a jury or the judge believed a case was one best considered by jurors.39 The provisions of the Halifax legislation were then extended to all of Nova Scotia by the 1884 Judicature Act. This legislation also allowed

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Supreme Court judges to require juries to give a ‘special verdict.’ A special verdict limited juries to answering specific questions of fact, leaving to the judiciary the application of the law to the facts found. This could be done in any civil case except in claims of libel, slander, criminal conversation, seduction, malicious arrest, and false imprisonment.40 In the United States in the nineteenth century, many states adopted special verdicts, and this development in Nova Scotia limited the ability of juries to find law in civil cases.41 The result of these changes was that the use of juries at trials at the Supreme Court was reduced substantially by the first decade of the twentieth century.42 The effect of the extension of the Speedy Trials Act, the creation of County Courts, and the reforms to the provincial judicature acts was a rapid decrease in lay participation in the justice system as petit jurors in both criminal cases and civil suits. The reluctance of jurors to serve, liberal ideology, state efforts to protect corporate interests, and the decline in the fear of government oppression combined to make trial juries the exception, rather than the norm, in the courts of Nova Scotia in the twentieth century. Reducing the Role of Grand Juries in Nova Scotia Grand juries, like petit juries, lost much of their importance after Confederation. The role of grand juries in local governance decreased in Nova Scotia with the passage of the County Incorporations Act of 1879, which created incorporated municipal governments across the province. This legislation transferred the responsibilities of grand jurors and magistrates in General Sessions to elected officials.43 Nova Scotia’s leading political historian, J. Murray Beck, suggests that the broader movement for responsible government was irrelevant and unconnected to the reforms of 1879.44 For Beck, the key factor in the passage of the 1879 act was instead the financial crisis facing Nova Scotia as the 1869 ‘better terms’ agreement with the Dominion government was about to expire. In this view, municipal reform was simply a means offloading costs onto local government.45 However, the passage of the 1879 act resulted from more than financial considerations. Unlike in Upper Canada in the 1840s, though, municipal reform in Nova Scotia was not an executive attempt to create mechanisms for centralizing political control.46 In Nova Scotia, calls for greater control of local taxation, road construction, and economic development were important. Even more influential was the pressure placed on the

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traditional system of local government by the entrenchment of political parties and the acceptance of political patronage, and the increased dissatisfaction with the undemocratic nature of grand jury selection and the appointment process of magistrates. Legislation preceding the 1879 act and the debates spurred by the act itself demonstrated the shifting attitude of Nova Scotians towards the role of juries in comparison to elected bodies. The debates showed a deep-seated unease with local governance by appointed magistrates, and grand jurors chosen by chance, and a desire to extend the principles of responsible government to local government. In England, grand juries were traditionally seen as the coming together of the most important men in a body that represented the interests of the county. In Upper Canada, this model had been eliminated when the colony established district councils in 1841. While Halifax had been incorporated in 1841, efforts to reform municipal government in most of Nova Scotia in the 1850s were unsuccessful.47 In part, the failure of these reforms stemmed from the fact that grand jurors were generally geographically representative. Recall that in 1833 Nova Scotia had required that grand jurors be drawn from boxes representing different parts of each county or district, and that in 1865 Nova Scotia altered the method of selecting grand jurors by having the General Sessions in each county divide the county into eight sections, and then draw three grand jurors from each section.48 In the 1870s, there were additional attempts to make grand juries more geographically representative in individual counties and districts. In 1876, for instance, the legislature dictated that grand juries of twelve would serve at the General Sessions at Guysborough. Importantly, the Guyborough act created a very representative grand jury by carefully determining from where each grand juror should be drawn. The grand jury was to consist of two members from each of the townships of Medford, Manchester, Wilmot, and Stormont, and four from the Township of Guysborough. As if that was not enough to ensure representativeness, the act also provided detailed instructions as to which areas in each township grand jurors would be drawn. For example, in the Township of Medford, one grand juror was to come from ‘that portion of the township lying west and north of the New Eastern Road, and including the Polling District of Tracadie,’ while the other grand juror would be drawn ‘from the remaining portion of the township lying east and south of the road aforesaid.’49 The legislature soon passed similar acts for other counties and districts. In 1878, it required

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that grand juries should have fourteen members at the General Sessions in the County of Cape Breton, twelve members in the District of Clare, fourteen in St Mary’s District, and thirteen in the District of Chester.50 Such changes reflected a desire to ensure that the composition of grand juries fairly represented the population of the municipal unit. The push for local control over local affairs through more responsible and representative institutions saw several towns adopt new municipal institutions in the 1870s. The legislature incorporated Dartmouth in 1873, Pictou in 1874, Truro and New Glasgow in 1875, and Windsor in 1878.51 These incorporations reflected the growing desire in Nova Scotia for municipal reform and were preludes to the province-wide municipal reform act of 1879. These acts paved the way for the 1879 legislation, and demonstrate that proponents clearly saw municipal reform as a natural step in the progression of local government. The debates over the establishment of incorporated municipal government in Pictou County offer a representative example of the motives for such changes. Motivations in Pictou County included the poor upkeep of roads, concern with economic development, continued unhappiness with the effect of party politics on the General Sessions, and a general desire to institute a more responsible system of local government. In February 1874, for example, the Conservative Colonial Standard of Pictou complained that the large number of Liberal magistrates appointed in the county had subsequently dismissed qualified county officials, including the county treasurer, simply because of their political affiliation. ‘It is a pity that the sessions should become the arena of partisan feeling, and political vindictiveness,’ it lamented.52 In February 1874, a writer in New Glasgow’s Eastern Chronicle bemoaned that the growing size of Pictou County meant that the county business was overwhelming the grand jurors and magistrates.53 As well, there were persistent complaints about the state of the roads in the county, and that the county Sessions (which supervised the statute labour system) and legislature (which doled out road grants, often on the basis of party patronage) were poor instruments of building and keeping up roads and bridges.54 The Eastern Chronicle thus pleaded for municipal reform. Government by Sessions, it argued was ‘cumbersome in organization,’ largely ‘irresponsible in action,’ and ‘altogether unsuited to the requirements of the community at the present day.’ It offered recommendations for a new elected municipal government and noted that its suggested councils ‘would be directly responsible to the people, which of itself is important.’ The Eastern Chronicle also argued that eco-

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nomic development demanded new instruments of local government since the county needed to lure industrial investors with incentives and promises of capital improvements, which, at the time, required an extended appeal for the approval of the legislature.55 The province’s finances were an unruly mess when Conservative Simon Holmes became premier in the fall of 1878. Philip Carteret Hill’s outgoing Liberal government had exhausted the 1878 budget and spent $156,000 of the federal subsidy for the following year. The dire state of the province’s financial situation would soon worsen when the ‘better terms’ grant negotiated after Confederation for Nova Scotia ended in 1879.56 In April 1879, Holmes introduced the municipal incorporation bill, a measure that would benefit the provincial treasury by downloading responsibility for roads and bridges onto the new municipal governments. It was more than financial necessity, however, that led to the passage of the 1879 municipal act. The debates over the 1879 bill mirrored the debates in Pictou County and clearly exposed the growing sense that local government needed to be more responsible and representative than allowed by a system reliant of grand jurors and magistrates. Legislators acknowledged that the selection of magistrates was mired in patronage, and that grand jury selection was arbitrary. In introducing the bill, Holmes thus complained about magistrates since the justices of the peace were ‘appointed by the government, and the people had no direct voice in their nomination or appointment.’ He rightly apprehended the negative consequence of responsible government on the magistracy: ‘in order to obtain an ascendancy or to give control to the government in power, it had been usual to make very large additions to the bench of Justices on each change of government.’ It was better, argued Holmes, for local people to govern themselves through democratically elected bodies. Earlier legislation had relied on chance to select the grand jurors, but, according to Holmes, this meant that some poor quality men became jurors. Holmes said that the practice of balloting grand jurors was ‘not in accordance with reason or common sense … The men so chosen might be very good men, but if they were, it was not because any judgment had been employed in selecting them, but because the wheel of fortune had so decided.’ The General Sessions, concluded Holmes, thus constituted ‘the most anomalous bodies known in the world,’ since magistrates were ‘entirely irresponsible,’ while grand jurors were ‘selected, as it were, by chance, and equally irresponsible.’57

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Several members of the assembly shared Holmes’ view that grand juries, as constituted by the ballot box, were irresponsible instruments of local governance. Adam Carr Bell of Pictou, a druggist and merchant, concluded that grand juries were poor at administering municipal affairs for two reasons. First, he claimed that just a few men tended to dominate the grand jury: ‘It frequently happened that no more than 2 or 4 of the 24 men chosen to compose the jury were at all fitted to sit either as chairman or foreman of that body.’ As a result, frequently the foreman had ‘too great control over all the appropriations and disbursements of the county.’ Second, the random selection of grand jurors meant that too many poorly qualified men served on grand juries. Grand juries were ‘frequently composed of men utterly unfamiliar with business, knowing nothing whatever of business matters, unaccustomed either to add or subtract, to multiply or divide.’ According to Bell, three-fourths of the grand jurors were ‘distinguished neither for the accuracy of their knowledge nor for the soundness of their judgment, while they were, almost uniformly utterly devoid of any experience of public affairs.’58 The apparent limitations of grand jurors led another member of the assembly, Joseph Roberts Kinney, a merchant representing Yarmouth, to charge that he had seen ‘the whole financial affairs of a county managed by one of the stronger minds upon the Grand Jury.’ Some of the jurors were ‘utterly incompetent’ and ‘could neither read nor write,’ and thus depended ‘for their direction upon a single master mind.’ As a result, the ‘system was certainly not one that should be perpetuated.’59 The regard once accorded to grand jurors by members of the assembly had clearly dissipated. The press from across Nova Scotia also asserted the necessity of municipal reform using the language of responsible government. Most newspapers came out in favour of the municipal act, stating that such a measure was long overdue, having been discussed at length for more than two decades.60 Some newspapers complained that the Holmes’ government had sprung the bill on the province, but nonetheless approved the increased democracy promised by municipal incorporation. The Halifax Morning Herald, for example, lauded municipal reform since it placed ‘the rights of self-government to a very full extent in the hands of the respective Counties.’61 The Lunenburg Progress also welcomed the reform in democratic terms: ‘We believe in the principle, “No taxation without representation,” and like to see it applied to County as well as to Provincial matters.’ The paper believed that it would be easy to improve on the county business transacted by the General Sessions,

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and argued that municipal elections would make inhabitants more engaged political citizens. According to the Lunenburg Progress, when ‘the municipal elections take place local questions will be agitated, a public interest awakened, and consequently the proceedings of the Council will be watched with care.’62 ‘A Taxpayer’ argued in the Pictou Colonial Standard that the mode of selecting grand jurors was undemocratic, and that the grand jurors huddled in private, where they imposed ‘any amount of amount of assessment on the people.’63 Holmes’ reform thus enjoyed popular support. There was no large public outcry against the act. Between 1879 and 1883, the assembly received just one petition that called for the repeal of the municipal act, and another that requested a local exemption from its provisions.64 While there were concerns about the increased expense of the new system of local government, most newspapers said this would be an insignificant amount and that encouraging democracy in local government was worth a slight increase in taxes. The Colonial Standard of Pictou, for example, argued that it expected ‘to gain a more accountable expenditure of road moneys, a more careful examination into charges made every year by interested parties against the County, a less partial distribution of county patronage, a more equitable apportionment of the County taxes, a more efficient selection of county officers, and the utter abolition of county rings.’ This could be expected ‘simply because for the first time in history of Nova Scotia, has there been extended to county matters the principle that taxation can not be imposed where there is no representation.’65 Grand juries continued to face criticism after the legislature eliminated their traditional responsibilities in local government. The response of the Nova Scotia legal profession to an 1890 Dominion questionnaire reflected the declining faith in grand juries in the administration of justice as well. James Gowan, the long-time Ontario opponent of juries, had become a senator in 1885. He persuaded the federal minister of justice, John Thompson, to distribute a questionnaire to all of Canada’s Attorneys General and Dominion-appointed judges to gauge their support for the continued use of grand juries in the criminal justice system.66 Six Nova Scotians responded to the questionnaire, three of whom supported the abolition of grand juries. Three County Court judges argued that grand juries were unnecessary and expensive, and were no longer needed to protect citizens from state oppression. Demonstrating the growing faith in professionalism, the judges believed that the role of grand juries in the criminal justice

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system could better be filled by professional Crown officers. The Attorney General of Nova Scotia, J. Wilberforce Longley, also detailed problems with grand juries, although he concluded that the Department of Justice and Parliament should ultimately decide the issue. Like the County Court judges, Longley advocated the professionalization of dispute resolution. He noted that the Speedy Trials Act had recently been applied in Nova Scotia with great success. Many accused sought trials before judges, which led Longley to conclude ‘that individuals in this country do not place a priceless value upon that institution which is supposed to guard them from the horrors of a public investigation.’67 John N. Ritchie and Charles Townshend of the Nova Scotia Supreme Court opposed abolition, but only Townshend was adamant in his support for the continued use of grand juries.68 In comparison, Ritchie found acceptable the idea that a prosecuting officer could determine whether a case should go to trial in ordinary criminal cases, but that there were certain offences – such as indictments against municipalities and corporations – for which public officials could not be trusted to act impartially. Grand juries, in Ritchie’s view, could better deal with such cases.69 Despite the weak support for grand juries among Nova Scotia’s legal elite, the province did not pass legislation abolishing grand juries in the nineteenth century. Instead, Nova Scotia stripped grand juries of their duties and passed legislation to reduce them in size. The application of the Speedy Trials Act to Nova Scotia decreased the number of criminal cases that were first considered by grand juries.70 In 1898, Nova Scotia passed legislation to reduce the number of grand jurors to twelve, and held that just seven could find a true bill.71 The grand jury’s role in screening the cases that did come before them also became increasingly symbolic. Grand juries in Halifax found true bills in the vast majority of criminal cases between 1867 and 1888.72 Conclusion The limitations introduced on the use of juries in Nova Scotia after Confederation resulted from the combined effects of the movement for responsible government and the acceptance of political parties, the dislike of jury service by the inhabitants of Nova Scotia, the liberal-inspired critiques of juries and the related celebration of professionalism, and the desire of Nova Scotians to create more effective instruments of political governance. These factors in the decline of the jury were, to

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varying degrees, apparent in both the efforts to limit the use of petit juries to settle disputes, and the decision to eliminate the role of grand juries in local government. The limits placed on the use of trial juries reflected liberal impulses to avoid the partiality and expense of juries. As well, the growing assumption that responsible government meant that democratically elected governments would not oppress their people made many Nova Scotians doubt the necessity of the time and expense of jury trials. It was thought that legal professionals could better administer and settle disputes, with minimal risk to individual liberty. Citizens seemed unfazed by these reductions in the use of juries. In fact, the concern over avoiding the inconvenience to inhabitants brought by more trips to the courthouse consistently played a role in the decision to eliminate juries after Confederation. The end of local government by grand jurors and magistrates reflected two very different effects of responsible government on attitudes towards the traditional system of local government. First, the continued use of a patronage-driven process for selecting magistrates largely destroyed faith in an impartial magistracy, while, at the same time, politicizing the selection of grand jurors, and thus undermining the check on the justices of the peace that juries were thought to provide. As more and more men received appointments as magistrates after each election, the existing system of municipal governance lost the confidence of people. The second effect of responsible government was that, over time, many citizens sought the creation of more representative and responsible local governance institutions.

8 ‘The Day Has Gone By for the Worship of Legal Idols’: The Decline of the Jury in Ontario

As in Nova Scotia, Ontario after Confederation greatly reduced the traditional roles of juries. Opponents of juries used the group of interrelated criticisms that had coalesced in the decade before 1867. Critics employed liberal arguments, for example, to claim that lawyers and judges should replace jurors. They asserted, even more aggressively than before Confederation, that juries were inefficient, irrational, and inequitable. Juries also appeared increasingly irrelevant as a key bulwark against tyranny since most people no longer feared oppressive governance after the achievement of responsible government. Faith in informed public debate also continued to wither in the post-Confederation period, as political parties remained entrenched and party platforms and electoral politics, not reasoned debate, shaped policy decisions. In this context, the idea that jurors could reach unanimous verdicts through rational debate seemed both quaint and impossible. This chapter begins by examining the state trials of the Fenians and of Patrick James Whelan, the alleged murderer of Thomas D’Arcy McGee, to test whether the jury selection machinery created in Upper Canada in the 1850s successfully prevented the packing of juries in contexts of heated ethnic and religious animosity. These trials, it will be shown, demonstrated to most Upper Canadians that they no longer had to fear jury packing by the state in political trials. Attention then turns to the jury reforms in Ontario after Confederation that greatly reduced the use of juries in both criminal and civil trials. Finally, consid-

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eration is given to the Ontario jury act of 1879, which simplified some of the complex jury selection machinery created in the 1850s that had become outdated in the view of critics who said that the establishment of responsible government had eliminated the need for juries to defend against government tyranny. Testing the Jury Act: The Fenian Prosecutions and the Trial of Patrick James Whelan The 1850 jury act had resulted in considerably fewer complaints of packed juries in Upper Canada in the 1850s and early 1860s. The Fenian state trials of 1866 and 1867, as well as the prosecution of the murderer of Thomas D’Arcy McGee in 1868, were tough tests to determine whether Ontario’s complex jury selection system could return juries perceived to be impartial. For the most part, the legislation passed these tests. The Fenians had formed in the late 1850s to fight for the independence of Ireland from England. Many Fenians hoped to invade and capture British North America, in order to use it as a bargaining chip in negotiating for the freedom of Ireland. With the end of the American Civil War in 1865, thousands of idle ex–Irish-American soldiers joined the cause. In April 1866, small groups of Fenians moved into New Brunswick, and a more serious incursion occurred at Fort Erie in Upper Canada. On the night of 31 May/1 June 1866, approximately 800 Fenians attacked Upper Canada, resulting in skirmishes that lasted two days.1 Upper Canadians captured some of the attackers and began legal proceedings.2 Jury selection in these cases became contentious, as the Irish press claimed that authorities intended to pack juries against the Fenian prisoners. The Irish press maintained that the jury selection process created in the 1850s allowed packing through the discretionary decisions made by township and county committees of selectors. In the mid-1860s, the Irish Canadian frequently charged that officials ensured that the jury lists of Upper Canada contained few Irish Catholics. Edited by Patrick Boyle, who agitated for the political advancement of Irish Catholics, the newspaper described how it believed the complicated set of jury selection procedures still allowed officials to shape jury panels. The members of the township jury committee in Toronto were ‘the judges of the intelligence and integrity of every man in the city, and determine whether he is fit to be a juror or not!’ Thus, ‘if a trial should be about to

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take place in which any man differing either in religion or politics from these selectors may happen to be interested, does any one suppose that the jury in such a case will not be such as to secure a verdict for the friend of the selectors?’3 The Canadian Freeman, another defender of Irish causes, also often charged that Upper Canadian juries had too few Catholics.4 Upper Canada’s Irish Catholic citizens, like Nova Scotia’s, drew from the complaints of packed juries in Ireland to formulate their charges of unfairness in North America.5 The Fenian trials that began in October 1866 generated more complaints about the jury system. In November 1866, the Irish Canadian alleged that there was not a single Catholic on the jury panel for the trials. ‘Are the United Counties of York and Peel so barren in Catholic yeoman that there could not be found within their wide domain a solitary person professing that religion intelligent enough to serve as a juror?’6 The Canadian Freeman also told its readers ‘how carefully the Irish element appears to have been eliminated from the jury panel.’7 Participants in one Fenian case also alleged that Catholics were underrepresented; in the trial of John McMahon it was said by one of the counsel that all of the jurors were Protestant.8 Despite these claims, little evidence was actually adduced that officials had packed juries in the Fenian trials. In several cases, defendants issued array challenges in attempts to have the entire panel of jurors quashed, though in no case could the defendants prove their allegations of jury irregularities. Array challenges were a frequent tactic in state trials in Ireland, where they were used to object to legitimate claims of jury packing, to delay trial, or to cast aspersions on the fairness of a trial.9 In the trial of Daniel Whalen in November 1866, defence lawyer Kenneth Mckenzie challenged the array of jurors assembled on several grounds, including that the jury panel had been returned from an ‘illegal and insufficient’ jury list, that names had improperly been added to the jury lists, and that the jurors’ books were not properly certified. The trial judge, Justice John Wilson, concluded that insufficient cause had been shown to support the challenge.10 Mckenzie also challenged the array in defending John Quinn. Justice Wilson appointed two triers to weigh the validity of the challenge. They held for the Crown and the trial went ahead.11 In a later Fenian case, Justice Joseph Curran Morrison tried to allay fears of packing. In the trial of James Burke, he said that the sheriff had informed him that the juries ‘had been selected for these Assizes without reference to nationality or religion,’ and, perhaps

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more convincingly, at a ‘time when the selectors could not know that the jurymen would be called to serve on these trials.’12 Other evidence suggests that the jury panels were not, in fact, packed against the Fenian prisoners. For example, in the trial of David Lumsden, the defence attorney noted that Lumsden’s jury had both Catholics and Protestants.13 It thus appears that the jury selection system introduced in the 1850s had at least limited the packing of juries with virulent partisans. The use of ballot boxes ensured that the jury panel could not be carefully stacked with the strongest anti-Fenians.14 Defendants who felt that they faced unfair juries could also seek redress for their concerns by requesting ‘mixed’ juries of six Americans and six Canadians. Aliens traditionally possessed a right under English law to have a jury composed of half aliens and half English citizens called a jury de medietate linguae (or ‘of half tongue’).15 In the Fenian trials, several defendants asked for, and were allowed, mixed juries, though at times the court was unable to locate six Americans able to serve. In such situations, Canadians made up the difference.16 A final piece of evidence that there was no intentional packing of juries is that the only appeal judgment in the Fenian cases concerning juries, Regina v. Kennedy, did not involve an allegation of intentionally omitting Irish and/ or Catholic jurors; it instead focused on an administrative mix-up that resulted in the calling of too few jurors.17 The 1868 trial of Patrick James Whelan for the murder of Thomas D’Arcy McGee also proved the success of the 1850s legislation in limiting complaints about jury packing. As in the Fenian trials, all of the ingredients for a packed jury were in place when Whelan appeared before his jury. Whelan was born in Ireland, and had come to Canada in 1865 and worked as a tailor. When the avowed anti-Fenian Thomas D’Arcy McGee was murdered in Ottawa in April 1868, authorities immediately assumed the assassin was a Fenian. Whelan was found with a revolver and arrested, and a jury convicted him at trial. His appeals were unsuccessful, and he died on a scaffold in February 1869. The trial received international coverage and stoked ethnic tensions in Canada.18 Despite this heated context, there were few complaints about partiality in the jury selection process, although the Irish Canadian objected that the Crown prosecutor challenged all of the Roman Catholic jurors, and two Protestants having Catholic wives.19 This did not constitute a systemic problem in jury selection, but rather reflected the ability to use challenges to select sympathetic jurors. In appealing his convic-

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tion, Whelan did not claim that the jury panel had been packed against him. His only complaint stemmed from a procedural mistake by the trial judge, William Buell Richards. During jury selection, Whelan had attempted to challenge a juror for cause, but Richards did not permit the challenge, saying that Whelan had to exhaust his twenty available peremptory challenges before challenging any jurors for cause.20 The complicated jury machinery ushered in by Robert Baldwin had passed another very difficult test. The Fenian trials and the prosecution of Whelan provided very public evidence that citizens – even alleged Irish Catholic invaders and assassins – did not have to fear jury packing. Reducing the Role of Petit Juries in Ontario When John A. Macdonald became the first prime minister of Canada, opponents of the jury system in Ontario sharpened their knives and soon began slicing off some of the traditional roles of juries in the province. As John C. Weaver concludes, reforms had two consequences: ‘trained barristers gained control of the courts, and juries were marginalized.’21 As in the decade before Confederation, liberal critics after 1867 continued to attack juries for being ignorant of the world and their duties, inefficient and wasteful, and reaching unpredictable verdicts.22 Opponents of juries also said that jurors were more easily tampered with than professional judges, and claimed that the race and gender of the parties before them affected jurors.23 Juries were unnecessary, critics argued, when judges could more easily and better decide cases.24 The positive view many commentators held towards the Ontario judiciary affected the criticisms of juries. As The Nation claimed in 1875, in Ontario ‘the legislation of late years has been in the direction of doing away with trial by jury in civil cases, substituting for it trial by judges alone.’ Such a change, noted The Nation, ‘could take place only in a country where the greatest confidence is placed in the judiciary.’25 In the context of such beliefs, legislators proposed a number of reductions in the use of juries. In 1868, James Trow, a Liberal member of the Ontario Assembly for South Perth, introduced a bill that would have made substantial changes to the province’s jury laws. It would have eliminated property qualifications for jurors, ended the unanimity rule, and abolished the grand jury.26 The Government of Ontario, led by John Sandfield Macdonald, was unwilling to go as far as Trow’s bill, and instead passed a new law reform act that reduced the use of trial

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juries in civil cases in Ontario. Edward Blake spurred on this legislation when he introduced a bill in the Ontario assembly in November 1868 that would have limited the use of juries in civil cases.27 Like Oliver Mowat, Blake was a Liberal equity lawyer whose practice had limited his appearances before juries. He was involved in 214 cases in the Court of Chancery between 1857 and 1867, and became a lecturer in equity at the University of Toronto and the Law Society of Upper Canada in 1861. Blake was a leading figure in Canadian liberalism in the nineteenth century, and his liberalism seems to have motivated his introduction of the 1868 bill.28 The Toronto Globe highly approved of Blake’s proposal to eliminate juries in civil cases because it would accomplish several liberal-minded goals. Calling the measure a ‘much-needed reform,’ the Toronto Globe said that it would increase the efficiency of the justice system since in ‘too many cases’ juries have been ‘used as an instrument, not for obtaining but evading justice, and procrastinating the day of settlement.’ Removing juries, claimed the paper, would ensure consistent decisions, for lawyers would be unable to bamboozle judges. It would also promote economic efficiency by eliminating the need to force hundreds of men to lose time at work to serve as jurors.29 John Sandfield Macdonald’s government adopted Blake’s proposals,30 and passed the 1868 Law Reform Act. This legislation abolished jury trials in civil cases in the superior and County Courts unless the judge ordered a jury trial or one of the parties requested one. The act also reduced the number of sittings of the County Courts and General Sessions, and eliminated the Recorder’s Courts that existed in several cities.31 These measures greatly reduced the use of juries in Ontario. The 1868 reduction in juries received considerable public support, which was often expressed in liberal terms. The Tillsonburg Observer connected the 1868 legislation to the groundswell of liberal law reform that had gained greater authority in Ontario and swept aside anachronistic legal procedures. In November 1868, the paper expressly invoked the names of the great English liberal law reformers in offering its views. According to the Observer, ‘were our present jury system done away with altogether, except in criminal cases, it would be highly beneficial to the country, as well as to suitors.’ The paper expressed its surprise that ‘such a system escaped such law reformers as Bentham and Brougham,’ as things ‘not half so monstrous and absurd melted like snow before their giant minds,’ for the ‘idea of shutting up twelve men in a dark room and starving them into a unanimous decision – a decision upon which depends the life, property and welfare of our fel-

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low men, is more absurd than any of the rubbish of centuries, swept away for ever by the iron hand of the great Brougham.’32 Supporters of the Law Reform Act suggested that expertise and professionalism in the justice system could bring consistency. Professional lawyers and judges, it was argued, would ensure that disputes were settled in accordance with legal principles, not on the basis of local community biases. For example, in discussing the act, the Canadian News said that the new law would be popular because ‘in many cases both litigants would rather have a clear-headed judge decide their case than twelve of their peers.’33 For its part, the St Catharines Constitutional was sure that many parties would avoid juries since they would not want to ‘face the disagreeable music of an uncertain trial and more uncertain verdict, from twelve wise men who frequently know little of the issues to be pronounced upon, and too often decide wrong instead of right.’34 The 1868 act also received support because it decreased the workload of jurors. Grand jurors at the Toronto Recorder’s Court approved the change in the law, emphasizing in their December 1868 presentment that the reform would save jurors time. It would ‘be found both beneficial and economical, owing to the decrease of legal business and in dispensing with the attendance of a large number of jurors.’35 Future Supreme Court of Canada Justice John Wellington Gwynne supported the 1868 legislation for similar reasons. Gwynne, like Blake and Mowat, practised in equity before his appointment to the Ontario Court of Common Pleas in November 1868. He told the assembled grand jurors at the Toronto assizes in April 1869 that the ‘chief object’ of the 1868 act was ‘to obviate the expense and inconvenience attending the summoning jurors from their ordinary occupations to attend the several Courts.’ His experience in equity clearly influenced his thinking on juries, as he suggested that the Division Court and the Court of Chancery showed that there were no potential problems in allowing judges alone to settle disputes. Not only did Gwynne approve of the limitations placed on civil juries in Ontario; he also expressed hope that the Dominion government would pass a summary criminal trial act to provide ‘a more speedy and summary mode than at present exists for the disposal of minor criminal offences.’36 The fact that many of the leading legal figures in Upper Canada who pushed for reductions in the use of trial juries – Blake, Mowat, and Gwynne – were equity lawyers is suggestive that the movement aimed at fusing equity and common law in the nineteenth century may have contributed to the decline of juries. Equity jurisdiction had a long his-

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tory in England. It initially emerged as a means of attaining justice outside the strict rules of the common law. Upper Canada established a Court of Chancery in 1837 to hear equity cases. Much of the business in the Court of Chancery stemmed from commercial business; its jurisdiction included property mortgages, commercial contracts, business partnerships, and trusts. The legislation establishing the Court of Chancery allowed all lawyers in Upper Canada to practise in equity, although the elaborate procedures of equity meant that only a certain percentage of lawyers came to develop special, and often lucrative, expertise at the Court of Chancery. Equity courts, unlike the common-law courts, traditionally operated without the assistance of jurors; instead, judges determined outcomes.37 As a result, a group of lawyers became accustomed to operating without juries. In time, a movement developed to ‘fuse’ equity and common law. In the nineteenth century, equitable doctrines became more systematized, more easily reconciled with common-law rules, and more reflective of a liberal ‘individualistic social outlook.’38 In England, this culminated in the abolition of the Court of Chancery and the transfer of its jurisdiction to the Supreme Court of Judicature by the Judicature Act of 1873. Upper Canada followed England’s example. In 1881, Upper Canada had equity absorbed into the jurisdiction of the High Court of Ontario.39 Gwynne would not have to wait long for legislation that limited the use of juries in Ontario criminal trials. The Dominion government passed the Speedy Trials Act in 1869 and Ontario applied it immediately.40 Members of Ontario’s judiciary expressed their approval. In charging the grand jury at the York County assizes in January 1870, for example, Judge Adam Wilson, who had served in municipal and provincial politics as a reformer prior to his appointment to the bench, noted that the Speedy Trials Act had been an ‘advantage to all parties concerned,’ for it was ‘economical to the State,’ because the ‘delay of keeping the prisoner over for trial till the appointed Court was in session is now prevented,’ and because ‘indigent witnesses are not now detained waiting for the trial,’ and because jurors were ‘not kept so long in attendance.’41 The move to limit the use of juries was far from over. In December 1871, Blake became premier of Ontario. His Liberal government passed a number of reforms, including expanding the property rights of married women and ending the practice of ‘dual representation,’ by which a person could serve concurrently as a member of the provincial legislature and the Parliament in Ottawa. Although he had just won a feder-

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al seat in 1872, Blake and several others had to choose between serving federally or provincially. Blake chose Dominion politics, but not before Oliver Mowat was persuaded to leave his position on the Ontario Court of Chancery, a decision which allowed him to become premier of Ontario in October 1872. He would hold this position until 1896.42 During the 1850s and 1860s, Mowat had advocated for a series of failed bills designed to limit the use of juries in Ontario.43 He furthered this goal when his government passed the Administration of Justice Act in 1873. Mowat introduced the bill by suggesting that it made several changes to make the justice system more speedy, convenient, and inexpensive.44 Authored by James Gowan, the same man who had drafted the 1869 speedy trials legislation, the 1873 act decreased the importance of juries.45 Paul Romney notes that this statute was important because it provided that a judge might, at his own discretion, direct that a judge alone decide a case, regardless of the wishes of the parties, except in cases of libel, slander, adultery, seduction, malicious prosecution, and false imprisonment, for which trial by jury would be used unless the litigants agreed to waive the right to a jury.46 The act, however, was also significant for two other reasons. First, it dictated that in any action where equitable issues were raised in defence, the case would be tried without a jury, although the court could, upon application of either party, order such issues to be tried (or damage assessed) by a jury. Second, the act provided that a judge could require juries to give special verdicts upon particular questions submitted to them, instead of general verdicts. These changes did not go unnoticed in the assembly, where at least two members objected to the new jury provisions and questioned whether Mowat was intent on doing away with the jury system.47 This legislation did indeed result in considerably fewer jury trials in Ontario. Judges sitting alone would eventually dispose of the vast majority of civil disputes in Ontario. In part, this decline resulted from the liberal belief that the justice system must be able to apply the law equally across the province. Opponents of juries employed this liberal concern in criticizing how juries decided cases against the growing number of corporations in Ontario. In doing so, they furthered state goals of industrial and commercial development. In Upper Canada before Confederation, the legislature had often passed statutes for the creation of individual corporations that would construct and manage public utilities, such as harbours, canals, roads, and railways. Legislation also allowed for the creation of financial institutions like banking, insurance,

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and loan corporations. Beginning in the 1830s, general incorporation statutes were enacted that permitted the creation of corporations in specific sectors of the economy, such as banking, mining, and gas and water services. In 1861, new legislation created comprehensive terms for most future business corporations.48 The number of corporations in Ontario grew substantially as a result, especially since the shareholders of the new companies usually benefited from limited liability, which shielded shareholders from personal liability for the debts of the company. In 1849, The Interpretation Act established limited liability for all corporations, unless express exemptions had been made.49 As the number and size of corporations increased, so did concerns over whether juries would prevent further economic expansion. Some Ontarians suggested that jurors were too eager to punish corporations for their transgressions, and that judges therefore removed cases from juries to prevent jurors from levying excessive judgments and thus preventing economic growth and undermining the liberal goal of equal justice across the colony.50 The Nation, for example, argued that illiberal juries stymied commercial development in Canada. Edited by lawyer William Alexander Foster, The Nation was started in support of the Canada First movement, which sought to encourage Canada’s selfinterest and equality within the British Empire. In January 1875, The Nation discussed an Ontario bill regarding fire insurance that provided that a court could void a condition of an insurance contract if it was deemed unjust and unreasonable. ‘What chance of justice would a Fire Insurance Company have, under such a law as this,’ asked The Nation, ‘before a jury of farmers for instance, if sued by a farmer who had failed to fulfill the conditions of his policy?’ Jury verdicts also threatened foreign investment in Canada, warned The Nation. It asked ‘how long would the great foreign companies continue to do business here when they found their conditions liable to be set aside by the verdict of any jury before whom the case happened to come?’ For The Nation, the dangers of allowing juries to interfere with the marketplace on the grounds of justice and local discretion were obvious. ‘The principle of empowering juries to break a contract, deliberately entered into and otherwise valid, because it does not accord with a juryman’s sense of justice, is too obviously fraught with mischief to call for any lengthened observations.’51 Later in January, The Nation pressed its point: ‘That “the public” needs protection against “the tyranny of corporations” is a very popular sentiment, and one which, when used before a jury by tricky advocates, has decided many a verdict against the facts; but it is

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one to which those who are interested, however remotely or indirectly, in the prosperity of our commerce will be very slow to appeal.’52 Several Ontario legislators argued that judges’ attempts to prevent juries from deciding certain cases were rightly driven by a desire to protect corporations. Ontario’s lawyers worked in close contact with the province’s industrialists after Confederation.53 As such, many likely desired to limit the ability of jurors to use their discretion to hinder business interests. Lawyers wanted consistent justice across the province. The limitations on the use of juries in Canadian cases concerning corporations mirrors Morton Horwitz’s argument that in the United States ‘one of the leading measures of the growing alliance between bench and bar on the one hand and commercial interests on the other is the swiftness with which the power of the jury is curtailed.’54 In his 1866 decision in Deverill v. Grand Trunk Railway, Justice John Hagarty of the Court of Queen’s Bench was explicit about the problems of juries in personal injury suits against railway corporations: ‘To leave such a case to the jury is, as has been remarked by English judges, simply to direct a verdict for the plaintiff, where a railway company are [sic] defendants.’55 James Bethune, a lawyer representing Stormont in the assembly, pointed out that the 1873 Administration of Justice Act meant that judges were deciding to hear civil cases alone when one of the litigants would receive unfair treatment by juries. He identified municipal corporations, railway companies, building societies, banks, and insurance companies as the targets of jurors’ anger.56 In another debate, he provided several illustrative cases in which judges had rightfully taken cases away from juries.57 He pointed to, for example, Jaffrey v. Toronto, Grey and Bruce Railway, in which the Court of Common Pleas had been dissatisfied by the jury’s verdict, believing that the jury had decided against the railway because it was a corporation. The case was an action against the railway company for negligently allowing combustible matter to accumulate on its land, which was set on fire by a company engine. The fire then spread to Jaffrey’s property. The case was tried before Chief Justice Hagarty and a jury at Brampton in 1874. The jury found for the plaintiff and awarded $650 damages. On appeal, the Upper Canada Court of Common Pleas quashed the jury decision and ordered a new trial. A single judge alone heard the subsequent rehearing.58 Not every legislator sought the elimination of juries because of the potential damage jurors’ decisions might inflict on Ontario’s economic development. Arthur Sturgis Hardy, for example, disagreed with the

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idea that judges, not juries, should decide cases concerning corporations. The Upper Canadian-born Hardy had been called to the bar in 1865, and soon established a flourishing practice and a reputation as a skilled attorney. In 1873, he entered the Ontario legislature as a Liberal. Possessing incredible energy, legal knowledge, and an aggressive debating style, Hardy joined the cabinet as provincial secretary in 1877, a position from which he introduced numerous bills in the legislature and assisted Mowat in centralizing power in the provincial government.59 In defending juries, Hardy suggested that they offered protection from a new form of tyranny: corporate power. In a January 1876 debate over a proposed jury reform, Hardy expressed his disapproval at the reduction of jury trials. He believed judges had misused earlier legislation in deciding to remove cases from juries, especially in trials where railway, insurance, and banking companies were parties. He also noted that many judges had represented such corporations as lawyers.60 Hardy told an audience in Markham in 1878 that ‘judges had got into the habit of striking out juries in that large class of cases in which railway, bank, insurance, and other rich corporations were the defendants, on the ground that juries were likely to be prejudiced against these institutions.’ He pointed out to his audience that in such cases it was dangerous to have disputes settled by a judge ‘whose mind might be prejudiced by his having been nearly all his life a counsel for one or other of these corporations.’61 Hardy’s concern with losing the protection of juries against powerful corporations was a new argument in the mid-1870s, and served to blunt further efforts of jury opponents. His arguments also reflected how liberalism could occasionally lead to competing conclusions regarding the jury. In this debate, Hardy’s desire for the uniform application of the law led him to offer a minority view that only juries could ensure that corporations did not receive advantageous decisions from pro-business judges. Hardy’s belief in the ability of juries to defend citizens against corporations did not mean, however, that he wished more juries to be used. An attempt in 1878 to reverse the reduction in civil juries failed. William McDougall, a lawyer and journalist in the assembly, opposed the limitations placed on the use of juries in civil cases. In February 1878, he introduced a bill designed to restore the right to trial by jury in civil cases. In a close thirty-five to thirty-four vote, the Ontario legislature voted down the bill on second reading, with both Mowat and Hardy voting against the measure.62 The limits on civil juries in Ontario would not be turned back.

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All of the ingredients that had existed in the decline of the jury in Nova Scotia were replicated in Ontario. Liberal criticisms made the jury system seem increasingly untenable. Lawyers and legislators, armed with local examples of courts that operated without juries, sought to defend corporations from supposedly unfair jury verdicts in a period of substantial industrialization. Jurors never stood in the way of efforts to eliminate juries, for, after all, they always found such service inconvenient. Unanimity Debates Liberal concerns with efficiency and the provision of consistent justice also resulted in efforts to end the unanimity rule for civil juries, attempts which eventually bore fruit in 1895. As in Nova Scotia, critics limited their attacks on the unanimity rule to civil suits, usually asserting that defendants in criminal cases could only be convicted with the agreement of twelve men. The unanimity rule came up for debate in the legislature in early 1873, after lawyer and Conservative member of the assembly Herbert Stone Macdonald brought in a bill to get rid of the rule.63 He said that he did not actually wish to have the bill passed, but wanted to stir discussion on the topic of juries to gauge legislative and popular opinion. In his view, justice had too often been stymied by two or three stubborn jurors. Lawyer James Bethune supported the bill, complaining that a single obdurate juror could cause a miscarriage of justice, and noting that other bodies, including judges on appeal cases, made decisions by majority judgment. Other legislators took the opportunity to simply attack the jury system as a relic of the past. Albert Prince, a Liberal lawyer, was the most vocal critic of juries. He said that juries usually just did what the judge told them, so, he argued, judges should simply decide cases. This claim was counter to the idea that juries made perverse verdicts, but was just as effective in attacking the jury, for it suggested that they had become superfluous. According to Prince, the problem was that ‘twelve men were taken from their farms and put into the box to listen to a long story they did not care about and about which they knew nothing.’64 Supporters of the unanimity rule continued to employ the language of English jury ideology, but the unanimity requirement would survive until 1895 largely because jury critics felt that they had already sufficiently emasculated juries. Lawyer Edmund Burke Wood expressed the old language concerning the jury. He opposed Macdonald’s bill, asking

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whether it would ‘be well to leave the jury system where it had been for so many ages, and which had wrought so much for amelioration, and security, and happiness of mankind?’65 Matthew Crooks Cameron also spoke out against the proposal. Cameron was a Conservative member of the assembly who had built a reputation as a skilful advocate in both criminal and civil cases.66 He called the jury the palladium of liberty, and spoke favourably of the traditional rationale for juries in educating the public on the operation of the justice system. The most important opponent of the Conservative bill, however, was Liberal Premier Oliver Mowat. He offered few comments explaining his stance. He discussed the similar measures he had introduced before Confederation, but in the end he declined to support the bill for the moment. He would only assert that the topic was worth further consideration.67 Historians of Mowat have not adequately explained his seeming about-face on the unanimity issue. Paul Romney, for example, simply notes that Mowat ‘changed his mind about the unanimity requirement.’68 The answer to Mowat’s reluctance to support the measure, however, may be found in the other limitations on juries implemented in Ontario after Confederation. Mowat may have felt that there was little reason to eliminate the unanimity rule since the effect of hung juries had already been greatly diminished.69 Despite the failure of the 1873 bill, there was considerable pressure to reform the unanimity rule.70 Legislators made several subsequent, though unsuccessful, attempts to weaken or end it later in the 1870s. James Bethune remained a strong proponent of such a measure. Bethune said that he supported juries, but felt that removing the unanimity rule would protect the jury from future attacks by achieving the liberal goals of making it a more efficient and rational dispute resolution body. In 1876, Bethune introduced another failed bill to dispense with the unanimity requirement for civil juries.71 On this occasion, Mowat expressed his support for the principle of majority verdicts in jury trials, but he refused to pass Bethune’s bill because he said that public opinion was not yet in favour of the measure, though he hoped that the prejudice against the principle of the bill would, in time, dissipate.72 Bethune tried again, unsuccessfully, in 1878. His bill failed to pass second reading, after Mowat again spoke against the proposed measure,73 saying that there was ‘really no practical grievance to be remedied by the change.’ His comments in 1878 also provide proof for the thesis that his lack of support for the proposal stemmed from the effects of earlier legislation that had limited the scope of the jury’s role.

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In Mowat’s view, different classes of cases were decided appropriately by different sorts of tribunals. Sometimes an arbitrator was best, in other situations a judge was best, and in yet other situations a jury was appropriate. The 1873 Administration of Justice Act left to the judges the determination of whether civil cases should go to a judge or to a judge and jury, and, in Mowat’s view, judges were ‘exercising wisely the discretion thus entrusted to them.’74 For Mowat, cases that went to juries and resulted in hung juries had come to the ‘right’ result for their particular circumstances. The debates about the unanimity rule highlight the extent to which changes in one area of procedure affected the willingness of the legislature to implement other proposed alterations to the province’s jury laws. The reductions in the number of jury trials dissuaded Mowat from supporting efforts to end the requirement that civil trials reach unanimous verdicts. But, as Mowat pointed out in the 1870s, his unwillingness to abolish the unanimity requirement did not mean that he wished the principle to continue in perpetuity. There was no urgency to alter the unanimity rule, but Mowat believed it was an irrational practice that should be tackled when liberal principles became more entrenched in public opinion. In 1895, his government quietly introduced legislation providing that the agreement of ten of twelve jurors was sufficient to find a verdict in civil suits.75 The measure received little public comment. The Toronto Globe suggested that the act was ‘common sense,’ since ‘one obstinate man may at present bring costly and protracted litigation to naught by refusing to agree.’76 The Toronto Evening Star, on the other hand, said that there had been no agitation for the change, and noted how quietly the bill had been introduced and passed.77 In the brief legislative debate, Hardy explained that the government hoped to save the expense and time wasted when juries in civil cases failed to agree. No legislator in the assembly used English jury ideology to criticize the measure. In fact, lawyer James Whitney, who led the Conservative opposition to the bill, said that he would have preferred that the jury system simply be abolished for civil cases. Eliminating the unanimity rule in civil cases, Whitney warned, only placed corporations at greater risk of suffering unfair verdicts.78 Despite his complaint, the bill became law. Renewed Attacks on Grand Juries Criticisms of juries in Ontario after Confederation extended to the continued use of grand juries. Ontario grand juries had seen their impor-

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tance decline in the pre-Confederation period with the creation of new municipal institutions, and the establishment of Crown attorneys, who increasingly usurped some of the grand jury’s role in screening cases before they went to a trial jury.79 The complaints that had begun to emerge in the late 1850s and 1860s that grand juries were out of step with the ‘increasingly professional milieu of the courts’80 did not decrease after Confederation. As a result, the grand jury’s place in the criminal justice system became increasingly symbolic. Several members of Ontario’s judiciary were among the most vociferous critics of grand juries. The most vocal was Justice John Wellington Gwynne. Gwynne often made known his views in charging grand juries. In his charge to the grand jury at the York County assizes in April 1869, he commented at length on the 1868 law reform act that had eliminated the need for many juries in civil cases. While this legislation had helped trial jurors, he ventured ‘to hope that some measure of relief may extend to the gentlemen called upon to discharge the onerous duties of grand jurors.’ Gwynne emphasized that the duties of grand jurors could easily be handled by a professional official. Grand jurors were ‘called upon to discharge very irksome duties of a purely formal and routine nature, the advantage of which, or the necessity for which, is not very apparent.’81 According to Gwynne, with the exception of some of those offences which are classed in the Statute Book as offences against the State and perhaps prosecutions for libel, it seems well worthy of consideration, whether the service of grand jurors might not be dispensed with, and whether in modern times the liberty of the subject would not be sufficiently protected if the law officers of the Crown were entrusted with the duty of determining whether the preliminary depositions already taken before magistrates are or are not sufficient to justify the indictment of the accused without the intervention of the Grand Jury.82

Gwynne cast aside a key premise of English jury ideology – that grand juries offered protection against a potentially tyrannical state. In doing so, he offered a Whiggish interpretation of history: ‘The times have long passed away since grand jurors found it necessary to interpose the aegis of their protection between the Crown and the subject.’83 In another grand jury address in Barrie in 1877, Gwynne argued that legal professionals could complete the role of grand juries more cheaply and efficiently. He made clear that, in his opinion, the County Attorneys Act of 1857 had created a body of trustworthy officials. He also noted that many criminal trials in Ontario did not go before grand juries al-

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ready, claiming that in one county thirty-one criminal cases had been submitted to a grand jury that year, while ninety-two cases had been processed without the assistance of the grand jury. In sum, Gwynne argued that the grand jury was a relic of a past age that should be eliminated from the modern legal system. It was ‘an ancient institution, no doubt, but many usages and laws which existed for centuries have been of late years swept away both in England and here, and the public gain thereby has been clearly recognized. In fact the day has gone by for the worship of legal idols.’84 Several newspapers also criticized grand juries for being expensive, unpredictable, and unnecessary. The Perth Courier identified the lack of work for grand juries as a problem. It reported in March 1868 that since there were no criminal cases at the Quarter Sessions and the County Court the local grand jury had ‘nothing to do but visit the Jail.’85 The St Catharines Constitutional saw little value in the supervisory functions of grand juries. In 1871, it noted that the grand jury at the Welland assizes made a presentment in which they ‘made the usual stereotyped allusion peculiar to Grand Juries in reference to the cleanliness and good order in the jail, and also to the fact of lunatics being confined there who ought to be removed.’86 The Toronto Globe added its voice to opponents of the grand jury. In 1877, it claimed that grand juries were ‘cumbrous bodies’ that were ‘apt to frustrate the ends of justice.’ It noted that in some countries, the duties of grand juries had passed on to a permanent legal official, the public prosecutor. The Toronto Globe believed that there might be imperfections with using such officials, but that ‘law officers of the Crown ought surely to be better judges of the character of evidence – which they have collected and which they have necessarily studied in all its details, and to be better able to say whether or not it will justify going to trial.’ It was thus ‘difficult to say what good purpose a Grand Jury serves which could not be far more easily, cheaply, and efficiently managed in some other way.’87 Not everyone agreed that the grand jury should be abolished; however, even those who spoke in favour of retention said that a lack of a suitable alternative was their primary reason for advocating for grand juries. John Hawkins Hagarty, the Chief Justice of the Court of Queen’s Bench, opposed eliminating the grand jury, which in 1880 he called it a ‘most excellent institution.’ He believed that it was impossible to get rid of grand juries until a capable substitute was established.88 Another judicial defender of grand juries, Matthew Crooks Cameron, also noted that if grand juries were eliminated, a well-paid official would need to

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do this screening work, and thus ‘the expense would be about as great as ever.’89 These were not ringing endorsements. The criticisms of grand juries led Liberal lawyer James Currie to introduce a bill in 1876 for their elimination in Ontario.90 He argued that there was no reason for retaining them, and that parties should simply trust in the judgment of petit juries. Moreover, he said that the judiciary and the Crown attorneys could decide if criminal cases should go to trial. Currie had served as a county warden and as the mayor of St Catharines, experiences that seemed to make him especially sensitive to the cost of grand juries. In his view, grand juries were expensive and unnecessary, and, Currie added, made it more difficult to assemble a competent petit jury, since grand juries consumed many qualified inhabitants.91 To assess the situation, the legislature ordered the counties to report outlays on grand juries. All but four counties responded to the request. In 1876, grand juries cost a total of $22,427.74 for the reporting counties, a figure that increased to $23,452.40 in 1877.92 Mowat responded to Currie’s proposed bill by expressing reservations about whether the province possessed the constitutional jurisdiction under the British North America Act to eliminate grand juries. He said that there were merits to both supporters and opponents of the bill, but he also noted that no other jurisdiction had abolished grand juries.93 Currie thus withdrew his proposal.94 The constitutional uncertainty identified by Mowat was not immediately resolved. Mowat contacted the Dominion’s minister of justice in late 1877 to propose allowing the Supreme Court of Canada to decide the provincial-Dominion jurisdictional questions associated with grand juries. The Dominion government agreed to the proposal, but this litigation was delayed. In 1879, Mowat’s government passed an important jury reform bill (discussed later in this chapter),95 but the question of legislative jurisdiction over grand juries led Mowat to pass a second small act in the same year that reduced the size of the grand jury from twenty-four to fifteen.96 He explained that the second act had been passed to reduce the cost of calling so many grand jurors, but it was never promulgated because the planned constitutional litigation did not take place.97 Liberalism and the emphasis on professionalism, the Whiggish view of political history spurred by responsible government, the cost of grand juries, and the reluctance of jurors to serve had mortally wounded the institution by the late nineteenth century. That these factors undermined grand juries was apparent in the responses to the Dominion’s

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1890 circular to judges and attorney generals, asking if they believed that grand juries should be abolished. As in Nova Scotia, there was considerable support in Ontario for abolition. One half of the forty-eight respondents from Ontario were in favour of abolition, while eighteen respondents were against, and six remained undecided.98 The respondents from Ontario who argued for abolition claimed that grand juries were expensive, arbitrary in their judgments, unnecessary in a modern, free society, unprofessional, and had little to do. The Dominion government did not abolish grand juries in the nineteenth century, but in Ontario grand juries became increasingly symbolic, were used less frequently, and became smaller in size. The Speedy Trials Act had a dramatic effect on the use of grand juries, since many criminal cases that in the past had first gone before a grand jury instead went directly to trial before a judge alone. By 1889, for example, it was claimed that 80 per cent of those committed for trial on criminal charges came before the court without having a grand jury first consider their cases.99 Grand jurors also became increasingly passive – they became reluctant to reject cases prepared by Crown attorneys. For example, of the 330 cases between 1879 and 1905 with known outcomes from the London assizes, grand juries marked only one ‘no bill.’100 Ontario repealed the 1879 act (that had never been promulgated) reducing grand juries to fifteen members, and in 1892 passed legislation that reduced membership to thirteen.101 This new act also awaited promulgation until the Dominion government passed an amendment to the Criminal Code in 1894 that said that any province that reduced grand juries to thirteen members could have seven jurors find a true bill.102 The grand jury, once held to be indispensible to the criminal justice system, had, in the view of many Ontarians, become irrelevant. The Ontario Jury Act of 1879 The concern with cost that had infused the debates over the unanimity rule and grand juries was also a prime motivation for the introduction of a series of Ontario jury reform bills that would eventually result in a new jury act in 1879. In the view of many Ontarians, the jury selection machinery created in 1850 was expensive and unnecessary. The memory of politicians, judges, and public commentators of the old concerns with jury packing had faded, and the Fenian trials and the prosecution of Whelan had shown that the 1850 jury legislation could, for the most part, eliminate complaints about jury packing. Critics of juries saw only an unnecessarily complex selection system.

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Ontario jurors still found jury service time-consuming, and often expressed their desire to be better paid for their time and expenses.103 There were appeals for better pay for special jurors, especially since legislation provided that special jurors only receive pay if they actually heard a case.104 This resulted in legislation that provided every special juror two dollars for each day they attended the courts, plus mileage.105 In 1874, Ontario also increased the pay to petit and grand jurors, providing $1.50 plus travel costs to every grand and petit juror. As well, the legislature empowered the county councils to provide additional funds for the jurors, as the councils saw fit.106 As in the pre-Confederation period, Ontario legislators kept close tabs on the cost of the jury system. In 1869, it tabulated the number of jurors returned in 1868 and the expenses connected with their selection. From across the province, 20,371 jurors had been selected, and the cost of selecting, calling, and paying jurors totalled $85,527.70.107 The belief that the jury system was too expensive led the province to complete a more detailed accounting of the costs of the jury system in 1874.108 A number of counties provided only partial responses to the legislature’s request for information, but the tallies gave some sense of the continued costs. In the largest county, York, juries decided 320 cases in 1874 at a cost of $16,762.66, paid to the clerk of the peace, the selectors, the sheriff, and the grand and petit jurors. In smaller counties, expenses were still substantial. In Renfrew County, for example, juries cost $2,177.78. Costs were disproportionately large for the smaller counties. Dividing the cost of the jury system by the number of cases heard by juries shows that York County faced expenses of just over $52 per case decided by a jury, but Renfrew County had to pay over $120 per jury trial.109 The complex jury selection machinery created in the 1850s thus continued to be expensive. Legislators and petitioners in Ontario offered various solutions to the perceived problem of annoyed jurors and wasteful expenditures. For example, just after Confederation, the County Council of Middlesex submitted a petition to the legislature advocating eliminating the second jury selection committee to save money.110 The legislature also received at least two petitions asking that the government abolish juries altogether.111 Liberal lawyer Thomas Hodgins introduced legislation in 1875 that offered a different potential solution. His bill would have separated jury and non-jury court cases. Since earlier reforms had reduced the use of juries, it was felt unfair to ask jurors to waste their time waiting for the completion of non-jury cases. Hodgins’ bill would have relieved jurors ‘from the necessity of waiting around the courts and be-

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ing kept away from their homes while the judge is trying cases without the assistance of a jury.’112 He said that the bar supported his measure, but Premier Mowat refused to throw his government’s support behind the bill.113 George William Monk introduced a similar private member’s bill in 1878 that failed to become law.114 Another member of the assembly, Alexander Ross introduced a bill in 1877 that offered other potential measures that would limit the expense of juries. Ross had served as the treasurer for the United Counties of Huron and Bruce, and was thus knowledgeable about the cost of the jury system.115 The bill, which did not get past second reading, would have simplified jury selection procedures and reduced the size of grand juries.116 Mowat responded to this flurry of proposals by admitting to the assembly that a change in the jury laws of Ontario was necessary, and promising that the government would introduce a new jury statute in 1879.117 Mowat kept his word, and in 1879 his government passed jury legislation intended to make the justice system less expensive and more efficient.118 Provincial Secretary Hardy took responsibility for introducing the 1879 act. Hardy remained a defender of juries. For example, in his speech in Markham in 1878 in which he lauded juries, Hardy made several arguments using the language of traditional English jury ideology. He suggested that the people of Ontario ‘were not likely to do away hastily with that great protector of civil liberty – the right for an accused to demand a judgment by a jury of his peers.’ Unlike many Ontario politicians, who believed that responsible government had buried old concerns with oppressive governments, Hardy still feared future attempts to silence opposition using the law. He warned of the possibility of future political upheavals, in which case he asked ‘would it be wise to hand a man’s interests over to a remorseless judge, bound perhaps to do the bidding of a tyrant Governor, with no one to stand between him and his oppressor?’119 In introducing the 1879 legislation, Hardy again expressed his belief that juries were an important protector of British liberties, and he lauded Baldwin’s 1850 jury law for securing impartial trials. He recognized, however, that its complicated machinery oppressed municipalities by forcing them to incur large costs.120 Hardy’s act made a number of important changes to Ontario’s jury laws. It removed the clerks of the peace from the county boards of selectors, because many county clerks were also lawyers (often concurrently serving as county Crown attorneys), and thus they might be perceived as having an interest in packing jury lists.121 The act also established firm property qualifications. Every person assessed at $600

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or more in cities, and $400 or more in towns, villages, and townships was liable to serve as either a grand or a petit juror. Making property qualifications the same for grand and petit jurors indicated a decline in the belief that grand jurors had to be of a higher social rank than petit jurors.122 The retention of a property qualification during a time of growing liberal hegemony also reflected the exclusionary aspects of liberalism. Despite the emphasis in liberal thinking on equality, the privilege (or onerous duty) of serving on juries remained reserved for men of some social standing. Hardy thus defended the use of a property standard in jury selection. He objected to a proposal to make jury service more inclusive by selecting jurors from voters’ lists. In his view, this was a monstrous idea because there were ‘many on the voters’ lists who would be anything but satisfactory jurymen.’ The ‘property qualifications was not an arbitrary standard,’ and was ‘a standard which was generally recognized.’123 While liberalism generally led to efforts to limit the use of juries, for Hardy, liberalism’s emphasis on property remained a method of excluding men of modest means from serving on juries – men had to be self-possessed individuals, which meant men of a certain level of wealth.124 The act reduced the number of jurors placed on panels as a means of reaping cost savings for municipalities. The new statute gave the county boards of selectors the discretion to determine the total number of jurors that the local township boards needed to select. The county board multiplied that number by three, then determined how many potential jurors each municipality within the county was to identify, based on the relative number of names on their voters’ lists. Another substantial break with past practice was the requirement that the county board choose a letter of the alphabet for each municipality which then determined where the township committees would begin their selection of jurors. The township selectors had to write down the names of twice as many potential jurors as requested by county board. This was to be done by choosing men whose surname began with the letter chosen by the county board. The next year, the local selectors were to start off selecting jurors where they left off the previous year. The local committee then chose two-thirds of the names they determined to be the best qualified. The local selectors prepared ballots, which were used to draw the final number of jurors ordered by the county board.125 Hardy’s 1879 act received both compliments and complaints. The Weekly Sentinel Review lauded Hardy’s bill for greatly reducing the cost and complications associated with jury selection in Ontario.126 Various

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county councils, however, continued to petition for additional changes to the jury act, including the elimination of the county boards of selectors, even though the legislature had established fees for the county boards designed to be more palatable to municipal governments.127 Despite the continued complaints over cost, the Ontario government refused to eliminate the county boards of selectors, but did pass legislation in 1882 that made slight alterations to the number of jurors selected, and limited the pay to the county selectors by capping the pay they could receive.128 The 1879 jury act represented the extent to which many Ontarians had lost their fear of packed juries. The high cost of the selection procedures created in the 1850s seemed unnecessary in a time when professional judges decided a majority of cases. The colonial state had flexed its muscles in 1850. In 1879, Oliver Mowat’s government tore down some of the apparatus created by the reformers who had feared that biased juries would chill public debate. The 1879 act (and the reforms to the unanimity requirement) represented attempts to make the rump jury more acceptable to liberals. Conclusion Juries declined substantially in importance in Ontario after Confederation. The 1868 Law Reform Act, the Dominion government’s 1869 Speedy Trials Act, and the 1873 Administration of Justice Act greatly reduced the use of juries in much civil and criminal business. In part, these reductions, it has been shown, stemmed from the expenses caused by the complicated procedural machinery first created in 1850. The state in Upper Canada had solved one problem (politically-motivated jury packing), but created others. After Confederation, familiar stories played out as municipalities continued to complain about the expense of juries, and jurors continued to complain about the inconvenience of their service. The solution of the Ontario government was to reduce the use of juries. The decline of the jury also reflected state goals in this period. The desire to encourage commercial growth led legislators to eliminate juries, or at least to allow judges to remove cases from the purview of supposedly biased jurors intent on punishing corporations. Such reductions in juries were rationalized using the language of liberalism. Liberals wanted to ensure that legal rules were applied equally across the province and thus sought to make the justice system more pro-

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fessional. The London Advertiser noted this in 1880. According to the Advertiser, the ‘tendency of all our so-called Law Reform legislators since Confederation, and more especially since the year 1872, has been to increase the power of our judiciary and lessen that of the people.’129 Corporations and individuals would know that judges and lawyers throughout the province would dispense justice according to similar considerations. These reductions could take place in Ontario because of the sense that citizens no longer had to fear the possibility of government oppression. Responsible government and the entrenchment of a free press led most Ontario legislators and commentators to dismiss the traditional view that the jury was vital to preventing government tyranny. In this new way of thinking, the jury was a historical anachronism. The Renfrew Mercury thus pondered in 1882 whether it was worth using the ancient institution of the jury in the new industrial age. It noted that the English people had a bad habit of ‘adapting old machinery to new uses,’ to trying to ‘convert an antique feudal tin-pot into the cylinder of a modern legal locomotive.’130

Conclusion

Doug Small, a freelance journalist, introduced his 1999 article discussing the value of the jury system in Canada in the National, a publication of the Canadian Bar Association, by writing that juries are ‘part of the fabric of the Canadian justice system.’ He also noted that they are ‘costly, time-consuming and often confused about the law’ before offering what he probably intended to be a provocative question: ‘Is it time to do away with them?’1 Unbeknownst to Small, juries had already largely been extinguished in Canada. Nova Scotia and Upper Canada inherited jury systems from England. In the early nineteenth century, juries were integral to the legal and political governance of Nova Scotia and Upper Canada, but by the century’s end, critics had forcefully and repeatedly assaulted the jury and the use of juries was greatly reduced. This trend had significant long-term implications. It decreased the role of lay persons in the justice system while increasing the role of legal professionals. In the future, judges, not jurors drawn from the community, would find verdicts in most disputes. The decline of juries also resulted in the creation of new systems of local government. Unelected grand jurors and magistrates were replaced largely by democratically elected local officials. Various forces pressured the jury in different ways at different times. Certain social, economic, political, or intellectual factors tended to drive specific pieces of legislation, with the result that, once implemented, the legislation jarred other sensibilities, often with negative and unforeseen

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effects that only stimulated further reform that, in the end, culminated in the decline of the jury. The benefit of examining two jurisdictions is that common explanations can be gleaned from the complex debates about the proper operation of local government, criminal prosecutions, and civil suits. In other words, a comparative analysis allows one to test whether the same factors explain the decline of juries in Nova Scotia and Upper Canada, and, if common factors can be identified, suggests that the same factors might have been important in other similarly situated jurisdictions in the common-law world. In Upper Canada and Nova Scotia, the jury system crumbled because of four often interrelated factors. First, the challenges of geography, topography, economy, and travel weakened many peoples’ adherence to English jury ideology. Second, the entrenchment of responsible government, the acceptance of political parties, and arguments about limits of freedom of the press undermined the jury. Third, efforts at state formation in the nineteenth century made jury systems more expensive and inconvenient, and thus juries more unpopular. Fourth, the expanding hegemony of liberal principles undercut the jury. This conclusion will briefly summarize how each of these factors led to the jury’s decline and note the differences in the two jurisdictions’ history of the jury. Some observations then follow on the interrelationship of the causal factors, the implications of nineteenth-century reforms on the justice system of the twentieth and twenty-first centuries, and the reasons for the continued existence of juries. The idea that juries could defend against government oppression was one of the cultural beliefs shipped across the Atlantic from England to the British North American colonies. In high-profile politicized cases, people expressed hope that the jury would serve as a bulwark of liberty. In the day-to-day administration of justice, however, the affection for the jury should not be overstated. Throughout the nineteenth century, many Nova Scotians and Upper Canadians consistently demonstrated a reluctance to serve as jurors. Jury service required that men leave their work and families, often to travel long distances over poor roads, sometimes in bad weather. Once they arrived at court, they had to find and pay for food and lodging. Farmers were especially wary of jury service, as it forced them to vacate their farms for days at a time, often during periods of planting or harvesting. As a result, juror absenteeism was common. The personal burden of jury service was thus an important factor in the decline of the jury system. It meant that most people did not

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oppose legislative reductions in the use of juries, and even led some to advocate limiting or abolishing juries. For example, in Nova Scotia there was no public outcry over the decision in 1841 to stop calling petit jurors for the General Sessions outside Halifax. Similarly, many Upper Canadians shrugged off the reduced access they had to juries as a result of provincial and Dominion legislation. The reluctant attitude of most people towards jury service has been an underemphasized factor in the decline of juries. In demonstrating the ambivalent position people held towards juries and jury duty, this book offers an important warning to historians that the assertions of a handful of colonial leaders concerning the value of juries was not necessarily representative of the views of most inhabitants. While jury service was unpopular in both jurisdictions, selection procedures and subtle differences between the geographic, economic, and cultural characteristics of Nova Scotia and Upper Canada helped determine the relative adherence to the jury as a part of local legal culture. For example, when eighteenth-century jury selection procedures established initially for Halifax were extended across Nova Scotia, many jurors were forced to travel long distances. As well, the difficult geography and the weak transportation system of Nova Scotia exacerbated the complaints jurors voiced about the rigours of jury duty. Upper Canada, in contrast, was blessed with less challenging geography and better transportation systems in the mid-nineteenth century. Roads were cut through fertile and relatively flat land, rather than carved through the rocky topography of much of Nova Scotia. As well, before 1850 selection procedures in Upper Canada meant that officials could select jurors who could conveniently attend court. After 1850, however, jury duty became more onerous, as the 1850 Upper Canada jury act created procedures that drew jurors from all parts of each county. As a result, by 1850 inhabitants of both Nova Scotia and Upper Canada felt disinclined to protect the jury. The movement for responsible government and the acceptance of political parties undermined the jury in Nova Scotia and Upper Canada, though in subtly different ways. Jury composition became a key issue because reformers feared packed juries in politically charged cases. In Upper Canada, charges of jury packing served to unite reformers in the long period before the establishment of responsible government. Reformers claimed that sheriffs populated juries with Tories, a charge that gained some validity with the state trials stemming from the 1837 rebellion. This concern drove the decision of reformers to pass the Upper

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Canada jury act of 1850, which succeeded in ending allegations of jury packing but made juries costlier and jury service more inconvenient, thus making the jury system even less popular. In Nova Scotia, the concern that Tories used packed juries in their efforts to silence newspaper publishers such as William Annand and Richard Nugent led advocates of responsible government to make jury reform a key plank of their platform. As a result, legislation placed checks on the ability of officials to select biased jurors. Unlike in Upper Canada, however, allegations of jury packing continued for some time after the achievement of responsible government because Nova Scotia continued to employ magistrates and sheriffs to administer the jury system. By the late 1840s, the magistracy had become one of the spoils of colonial elections. Each new government appointed magistrates loyal to its party, with the result that the justice system, and the jury, remained infused with politics. While the jury was supposed to stand between citizens and the state, the politicization of the jury meant that many Nova Scotians no longer saw it as an effective defender of their liberties. Placing power in the hands of democratically elected assemblies caused many Upper Canadians and Nova Scotians to suggest that juries were increasingly irrelevant since the fear of government tyranny had been eliminated. This change in thinking occurred first in Upper Canada, where the 1850 jury act created the appearance of a more impartial justice system. In Nova Scotia, however, continuing allegations that politics infused the courts delayed suggestions that citizens could feel secure that the colony’s leadership would not contort the legal system to its advantage. Responsible government also contributed to the decision to end the role of grand juries in Nova Scotia local government. In Upper Canada, municipal acts passed in the 1840s expanded executive power. In comparison, Nova Scotia municipal reform stemmed from critics’ charges that grand juries were inherently undemocratic and irresponsible bodies that could frustrate the popular will. The cloistered and secretive world of juries was deemed anachronistic in an era that called for accountability on the part of those who held positions of power. In demanding that government be responsible to the will of the electorate, the reform leadership also provided arguments that sustained claims that local people should run their own affairs. In Nova Scotia, this helped motivate the end of local government by magistrates and grand jurors, while in Upper Canada this led county and township councils to assert themselves strongly in response to the increased ad-

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ministrative costs heaped upon the municipalities by the jury legislation of the early 1850s. Reformers responded to fears about packed juries in politicized trials by flexing the colonial state’s muscles and creating elaborate new jury selection machinery. Historians considering state formation in Canada have generally examined a single jurisdiction in their studies.2 Exploring jury reforms in Nova Scotia and Upper Canada provides an opportunity to offer insights into the relative strengths of the state in each jurisdiction. Politicians in Upper Canada and Nova Scotia attempted to implement more complex and bureaucratic jury selection systems, but Upper Canada proved better able to implement new procedures.3 These selection processes helped limit allegations of jury packing but, in time, precipitated calls that the use of juries be curtailed to save money and effort. In Nova Scotia, critics often complained about the cost of bringing together, and paying, jurors. Such criticisms were even stronger in Upper Canada, where municipal governments after 1850 complained vociferously about the expense of paying the officials responsible for forming juries. These complaints grew louder after the legislature passed legislation in 1851 that paid jurors for the greater inconvenience caused by the 1850 jury act. Municipalities demanded that the government of the United Province stop forcing them to pay for expensive legislation, and to reform or dispose of the complicated jury selection machinery created in 1850. The growing prominence of liberal ideas also contributed to the decline of juries in Nova Scotia and Upper Canada. Liberalism was at odds with juries in several ways. It emphasized equality, rationality, impartiality, and efficiency, while placing primacy on the ‘individual’ at the expense of the collective or community. Juries represented the force of community values rather than individual will. As such, juries stood at odds with the growing sense that disparate and equal individuals should have their disputes settled not by the concerns and values of local collectives, but according to their individual ‘rights’ visà-vis other citizens across the colony. The growing primacy of liberalism resulted in sustained calls for the reduced the use of juries, which were, like local courts administered by non-lawyers, as Philip Girard accurately notes, ‘seen as islands of nonconformism and particularity in the wider provincial sea.’4 Critics charged that juries were prone to partiality and irrationality, as jurors allowed their personal biases to influence decisions. During times of substantial ethnic and religious conflict, this perception was especially problematic. Jurors simply could

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not be trusted to put aside their personal biases and make reasoned and impartial decisions, as demanded of a liberal legal regime. Reformers imbued with liberal principles also charged that juries were inefficient. Liberals tended not to celebrate ancient legal traditions; instead, they sought to sweep away perceived historical anachronisms. The best laws and legal institutions were the most efficient ones for society, regardless of their antiquity. Juries were deemed inefficient because they often proved unable to reach unanimous verdicts. In addition, jurors sometimes considered ‘improper’ evidence or came to decisions against the evidence. This led to appeals of jury verdicts, then wasteful and time-consuming new trials. Juries were especially vulnerable to liberal critiques because they existed within legal and governance systems increasingly dominated by lawyers. Lawyers comprised a growing proportion of the legislators of Upper Canada and Nova Scotia by mid-century. By the late 1850s, these lawyer-legislators – affected by the emerging perception of juries as biased and inefficient – were well placed to implement reforms that reflected liberal principles. During the middle decades of the nineteenth century, lawyers began practising in the small towns of Nova Scotia and Upper Canada and became key players in the emergence of corporate capitalism. This geographic dispersal of lawyers helped project liberalism and encouraged other citizens to internalize liberal values preached by lawyers who emphasized their own professionalism and the value of systematizing the legal system. Lawyers criticized lay, and ‘unprofessional,’ juries, and, in time, lawyers replaced grand juries in evaluating whether alleged criminal activity should go to trial. In addition, for many lawyers, the localized, seemingly arbitrary judgment of juries stymied efforts at economic development, and they thus urged the reduced use of jury trials as a means of furthering the interests of their increasingly important corporate clients. They argued that corporations should receive equal rights, and not be liable to destructive verdicts issued by angry jurors. It was better to get rid of juries, many lawyers argued. While these four variables have been presented as separate factors, they were often interrelated. For instance, state formation and responsible government were clearly connected. Responsible government not only made the executive responsible to the legislatures. It also made it possible for the executive to purposively direct legislative activity. This allowed the state to build institutions, and raise taxes to pay for them, in ways that were impossible under the old representative system which

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had relied on the largely voluntary, fee-based work of local amateurs and saw the elected legislatures (and juries) as external checks on the government rather than as part of the government. Advocates of responsible government and state formation were also among the most zealous proponents of liberal policies concerning juries. Even the complaints about the challenges of jury service intersected with the other causal factors. Distaste for jury service, for example, reflected a growing liberal belief in the legitimacy of an individual’s emphasis on his own private and often material interests, rather than a sort of civic humanist prioritizing of virtue and public service, as in the duty to spend one’s valuable time in jury service. As well, liberal legal thinking helped make jury service less popular. Lawyers demanded that jurors come to trials as blank slates, without knowledge of the events or the parties involved. This represented the culmination in a trend in thinking about what constituted a good juror – a shift from the medieval self-informed juror to the modern supposedly impartial one. By discouraging the selection of jurors who were informed about the case, the jury selection process encouraged a sense of disconnection between jurors and the justice system. Most jurors felt that they had little interest in the cases before them. As strangers to most disputes, many citizens felt unconnected to the conflicts and thus even more disinclined to serve. The discussion of who was ideally suited for jury duty also reflected the tendency of liberalism, though supposedly grounded in commitments of equality and universalism, to warrant exclusions. Tories argued that only men of property should serve on juries. Liberals were unwilling to fully deviate from this view in the nineteenth century. Property qualifications remained for jury service in the postresponsible government period as a sign of man’s right to partake in the full benefits and responsibilities of citizenship. They did, however, create a dilemma for liberals, who noted that property ownership did not always return men of the highest quality. Legislators sometimes wished for better educated jurors, not farmers of property. There was no way to achieve this so, instead, legislators and lawyers (who were increasingly the same people) emphasized professionalism in advocating that lawyers and judges settle disputes. In this way, liberals found ways to limit popular participation in the justice system. Continued attacks on the jury led to further reductions in the use juries in the twentieth century. In 1968, the Ontario Royal Commission Inquiry into Civil Rights recommended that trial by jury be abolished in all civil cases except defamation suits. The report asserted that the

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‘trial of civil cases by a jury is a procedure that has outlived its usefulness in Ontario.’5 The Ontario Law Reform Commission reached a similar conclusion in 1973.6 The civil jury experienced a severe twentiethcentury decline. The 1973 Ontario commission reported that juries sat in no more than five percent of civil cases in the Nova Scotia Supreme Court. Other provinces offered similar statistics. The commission described the use of civil juries as ‘extremely rare’ in New Brunswick and ‘negligible’ in Alberta and Saskatchewan.7 In Prince Edward Island no civil jury had tried a case in the five years before 1973, and in Manitoba there were four civil juries between 1944 and 1956, and none from 1957 to 1975. Quebec eliminated civil juries in 1976.8 By the late twentieth century, trial juries also determined a small minority of criminal cases. Nationwide statistics on the use of criminal trial juries are difficult to obtain, but one estimate is that in Ontario in the 1990s at least ninety percent of criminal cases were tried by a judge alone.9 The grand jury took an even greater fall, completely disappearing before the end of the twentieth century. Several western jurisdictions – Alberta, Saskatchewan, the Northwest Territories, and the Yukon – never had a grand jury system. Manitoba abolished its grand juries in 1923. British Columbia and Quebec followed in 1932, as did New Brunswick in 1959.10 Ontario and Nova Scotia did the same in the 1970s. Ontario removed references to grand juries in 1974, and Nova Scotia passed legislation abolishing grand juries in 1979, although the legislation was not promulgated until 1984.11 Criminal trial juries were spared further reductions, and there is no current movement to abolish such juries in Canada. One can speculate on why the criminal jury endured, albeit in a much reduced role. In part, some of the old rationales for the jury continued to resonate. For example, in 1980 the Law Commission of Canada offered several traditional reasons for using juries, including that they impartially determined facts, acted as the conscience of the community, refused to apply oppressive laws, helped educate citizens on the justice system, and legitimated the law.12 These traditional rationales for juries were of course easier to voice when only a relatively small number of jury trials took place, and thus citizens were only occasionally inconvenienced. Today, many Canadians probably believe that the jury is used frequently, a myth propagated by popular crime dramas and press reports of juries in some of the most prominent criminal cases in Canada, including the trial of Robert Pickton in British Columbia, but Canadians do not receive frequent summons for jury service. Another

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explanation is that, especially after 1945, many Canadians became interested in protecting ‘civil liberties’ through the enactment of rights protecting documents.13 Many late nineteenth century commentators had expressed their belief that citizens no longer had to fear a tyrannical state. A re-emphasis on finding protections against state oppression, however, led to the inclusion of a right to trial by jury in criminal cases in the 1982 Canadian Charter of Right and Freedoms. The Charter provides that any person charged with an offence has the right ‘to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment,’ except in the case of an offence under military law tried before a military tribunal.14 This was a fine idea, but the potential practical effects of the Charter guarantee led Canadian politicians to find new ways to avoid jury trials. The federal government circumvented the Charter provision by calling many serious crimes ‘hybrid’ offences, which can be tried by either a judge or jury. If tried summarily, the maximum punishment for these offences is five years minus a day.15 The jury had thus declined, but the criminal trial jury remained enough of a symbol that it was not eliminated. Grand juries disappeared and the use of civil juries was seriously curtailed, but criminal trial juries held on. Traditional jury ideology helped to shield the remnant core of the palladium of liberty from complete extinction.

Notes

Introduction 1 Upper Canada became ‘Canada West’ under the 1840 Act of Union, which combined Upper and Lower Canada to form the United Province of Canada. Upper Canada became Ontario at Confederation. For reasons of consistency and simplicity, this book will refer to the modern province of Ontario as Upper Canada throughout the pre-Confederation period and as Ontario after Confederation. 2 These include cases determined at the King’s Bench, District Court, and Court of Quarter Sessions in Upper Canada, and the cases heard in Nova Scotia at the Supreme Court and the Court of General Sessions. For a discussion of which courts used juries in Nova Scotia and Upper Canada in the 1820s, see chapters 1 and 2, respectively. Quantifying the decline in the jury is difficult, in part because, even in the early nineteenth century, many disputes were resolved in one way or another before reaching trial. For a useful reminder that legal historians should remember that many criminal and civil cases were historically disposed of without juries, see Lawrence M. Friedman, ‘The Day before Trials Vanished,’ Journal of Empirical Legal Studies 1 (2004), 689–703. 3 This decline has long been noted. See, for example, Lawrence M. Friedman, Crime and Punishment in American History (New York: BasicBooks 1993), 250–2; R.M. Jackson, ‘The Incidence of Jury Trial During the Past Century,’ Modern Law Review 1 (1937), 132–44; E.P. Thompson, ‘In Defence

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of the Jury,’ in Persons and Polemics (London: Merlin Press 1994), 143–68; John H. Langbein, ‘On the Myth of Written Constitutions: The Disappearance of the Criminal Trial Jury,’ Harvard Journal of Law and Public Policy 15 (1992), 119–27; Ontario Law Reform Commission, Report on the Use of Jury Trials in Civil Cases (Toronto: Ontario Law Reform Commission 1996), 5–18. 4 Martin J. Wiener, ‘Judges v. Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England,’ Law and History Review 17 (1999), 471. For some of the best work on the British jury see, for example, Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press 1985); Thomas A. Green, ‘The English Criminal Trial Jury and the Law-Finding Tradition on the Eve of the French Revolution,’ in Antonio Padoa Schioppa, ed., The Trial Jury in England, France, Germany, 1700–1900 (Berlin: Duncker and Humblot 1987), 41–73; John H. Langbein, ‘The English Criminal Trial Jury on the Eve of the French Revolution,’ in Schioppa, ed., The Trial Jury in England, France, Germany, 13–39; James C. Oldham, ‘The Origins of the Special Jury,’ University of Chicago Law Review 50 (1983), 137–221; James Oldham, ‘Special Juries in England: Nineteenth Century Usage and Reform,’ Journal of Legal History 8 (1987), 148–66; J.S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton, NJ: Princeton University Press 1988); David Johnson, ‘Trial by Jury in Ireland, 1860–1914,’ Journal of Legal History 17 (1996), 270–93; John W. Cairns and Grant McLeod, eds., ‘The Dearest Birth Right of the People of England’: The Jury in the History of the Common Law (Oxford: Hart 2002); James Masschaele, Jury, State, and Society in Medieval England (New York: Palgrave MacMillan, 2008); and James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University Press, 2006). 5 Albert Alschuler and Andrew Deiss’ comment that the lack of research on the American jury is an example of ‘astonishing scholarly neglect,’ still holds some truth, though a body of work has begun to emerge. Albert W. Alschuler and Andrew G. Deiss, ‘A Brief History of the Criminal Jury in the United States,’ University of Chicago Law Review 61 (1994), 868. For work on the jury in the United States see, for example, John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire (Dekalb, IL: Northern Illinois Press 2004); James D. Rice, ‘The Criminal Trial Before and After the Lawyers: Authority, Law, and Culture in Maryland Jury Trials, 1681–1837,’ American Journal of Legal History 40 (1996), 455–75; Harold M.

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Hyman and Catherine M. Tarrant, ‘Aspects of American Jury Trial History,’ in Rita James Simon, ed., The Jury System in America: A Critical Overview (London: Sage 1975), 21–44; Richard D. Younger, The People’s Panel: The Grand Jury in the United States, 1634–1941 (Providence: Brown University Press 1963); M. Catherine Miller, ‘Finding “the More Satisfactory Type of Jurymen”: Class and the Construction of Federal Juries, 1926–1954,’ Journal of American History 88 (2001), 979–1005; Douglas G. Smith, ‘The Historical and Constitutional Contexts of Jury Reform,’ Hofstra Law Review 25 (1996), 377–505; Stephen Landsman, ‘The Civil Jury in America: Scenes from an Unappreciated History,’ Hasting Law Journal 44 (1993), 579–619; Lawrence M. Friedman, ‘Some Notes on the Civil Jury in Historical Perspective,’ DePaul Law Review 48 (1998), 201–20; David M. Gold, ‘Reforming the Civil Jury in the Nineteenth-Century West: Jury Size and Unanimity of Verdicts,’ Western Legal History 15, no. 2 (2002), 137–64. John M. Murrin, ‘Magistrates, Sinners, and a Precarious Liberty: Trial by Jury in Seventeenth-Century New England,’ in David D. Hall, John M. Murrin, and Thad W. Tate, eds., Saints and Revolutionaries: Essays on Early American History (New York: W.W. Norton 1984), 153. The Fifth Amendment to the United States Constitution forbids trial for a major crime except after a grand jury issues an indictment. The Sixth Amendment guarantees a trial by a jury in criminal cases. The Seventh Amendment assures trial by jury in civil cases involving anything valued at more than $20. John H. Langbein, ‘The Criminal Trial before the Lawyers,’ University of Chicago Law Review 45 (1978), 263–316; John H. Langbein, ‘Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,’ University of Chicago Law Review 50 (1983), 1–136; J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press 1986), 376–8. Friedman, Crime and Punishment in American History, 250–2; Langbein, ‘On the Myth of Written Constitutions,’ 119–27; Albert W. Alschuler, ‘Plea Bargaining and Its History,’ Columbia Law Review 79 (1979), 1–43; Lawrence M. Friedman, ‘Plea Bargaining in Historical Perspective,’ Law & Society Review 13 (1979), 247–59; John H. Langbein, ‘Understanding the Short History of Plea Bargaining,’ Law & Society Review 13 (1979), 261–72. C.B. Ramsey offers another explanation, suggesting that plea-bargaining developed because prosecutors had to deal with a lack of district attorney staffing, a backlog of indictments, and the introduction of elections for prosecutors. C.B. Ramsey, ‘The Discretionary Power of “Public” Prosecutors in Historical Perspectives,’ American Criminal Law Review 39 (2002), 1309–93. Mike

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Notes to pages 5–6 McConville and Chester L. Mirsky argue that plea-bargaining was just part of a transition from individualized to aggregate justice. Mike McConville and Chester L. Mirsky, Jury Trials and Plea Bargaining: A True History (Oxford: Hart 2005). Mary Vogel suggests that plea bargaining was adopted as a technique of governance introduced by elites to secure the loyalty of lower classes by occasional displays of leniency. Mary E. Vogel, Coercion to Compromise: Plea Bargaining , the Courts, and the Making of Political Authority, 1830–1920 (New York: Oxford University Press 2005). For a discussion of the American literature concerning the history of plea bargaining, see Bruce B. Smith, ‘Plea Bargaining and the Eclipse of the Jury,’ Annual Review of Law & Society 1 (2005), 131–49. William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press 1998); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press 1995), 9–64. ‘The Changing Role of the Jury in the Nineteenth Century,’ Yale Law Journal 74 (1964), 170–92; Reid, Controlling the Law; Green, ‘The English Criminal Trial Jury and the Law-Finding Traditions on the Eve of the French Revolution,’ 72. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press 1977), 84–5, 141–3. Sally Lloyd-Bostock and Cheryl Thomas, ‘The Continuing Decline of the English Jury,’ in Neil Vidmar, ed., World Jury Systems (Oxford: Oxford University Press 2000), 53–91. Conor Hanly, ‘The Decline of Civil Jury Trial in Nineteenth-Century England,’ Journal of Legal History 26 (2005), 253–78. Hanly’s emphasis on the establishment of the county courts in 1846 is an attempt to push back the date most historians identify as the beginning of the end of civil juries. Typically, this trend is said to begin with the Common Law Procedure Act of 1854. J.H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths 2002), 92; Sir Patrick Devlin, Trial by Jury (London: Stevens and Sons 1966), 130; Sir William Holdsworth, A History of English Law, vol. 15 (London: Methuen, 1965), 112. Nancy Parker, ‘Swift Justice and the Decline of the Criminal Trial Jury: The Dynamics of Law and Authority in Victoria, BC, 1858–1905,’ in Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, vol. 6, British Columbia and the Yukon (Toronto: University of Toronto Press and Osgoode Society 1995), 195. Also see Nancy Kay Parker, ‘Reaching a Verdict: The Changing Structure of Decision-Making in the Canadian Criminal Courts, 1867–1905’ (PhD diss., York University 1999). For a simi-

Notes to pages 6–7

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lar argument, see John C. Weaver, Crimes, Constables, and Courts: Order and Transgression in a Canadian City, 1816–1970 (Montreal: McGill-Queen’s University Press 1995), 157–8, 269. Paul Romney, ‘From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture,’ Law and History Review 7 (1989), 121–74; Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: University of Toronto Press and Osgoode Society 1986), 290–311. For other important studies of the jury in British North America see Jim Phillips, ‘Halifax Juries in the Eighteenth Century,’ in Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the Old World and the New (Toronto: Centre of Criminology 1998), 135–82; Donald Fyson, ‘Jurys, participation civique et représentation au Québec et au Bas-Canada: les grands jurys du district de Montréal (1764–1832),’ Revue d’histoire de l’Amérique française 55 (2001), 85–120; David Murray, ‘Just Excuses: Jury Culture in Barrington Township, Nova Scotia, 1795–1837,’ in Margaret Conrad and Barry Moody, eds., Planter Links: Community and Culture in Colonial Nova Scotia (Fredericton, NB: Acadiensis Press 2001), 36–57. However, because British North America (and Canada before the Charter of Right and Freedoms) lacked written constitutional guarantees to trial by jury, there was less need to adopt the plea-bargain procedure than in the United States. Instead, as we shall see, Canadian legislators simply ended access to jury trials. No one has answered Greg Marquis, who in an influential 1988 article on the role of ‘British Justice’ in Canadian society asked: ‘Was there popular awareness of or response to the decline of the jury and the expansion of summary trials?’ Greg Marquis, ‘Doing Justice to “British Justice”: Law, Ideology and Canadian Historiography,’ in W.W. Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 60. See Bernard Bailyn, Atlantic History: Concepts and Contours (Cambridge: Harvard University Press 2005); Phillip A. Buckner and R. Douglas Francis, Rediscovering the British World (Calgary: University of Calgary Press 2005); David Armitage and Michael J. Braddick, eds., The British Atlantic World, 1500–1800 (New York: Palgrave Macmillan 2002). Green, Verdict According to Conscience, 381. Lois G. Schwoerer, ‘Law, Liberty, and Jury “Ideology”: English Translantic Revolutionary Traditions,’ in Michael A. Morrison and Melinda Zook, eds., Revolutionary Currents: Nation Building in the Transatlantic World (Lanham: Rowman and Littlefield 2004), 40, 54.

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22 William Blackstone, Commentaries on the Laws of England, vol. 4 (Oxford: Clarendon 1769), 343. 23 Lawrence M. Friedman, ‘The Concept of Legal Culture: A Reply,’ in David Nelken, ed., Comparing Legal Cultures (Aldershot: Dartmouth Publishing 1997), 34. 24 Friedman, ‘The Concept of Legal Culture,’ 34. Or, as Jonathan Swainger and Constance Backhouse argue, European immigrants to British North America ‘packed away notions of law along with their linen, their family Bibles, and their hopes for a new life,’ but ‘when these migrants finally put down roots, the new place and the new relation to the land from where they came invariably affected their outlook and their sense of identity.’ Jonathan Swainger and Constance Backhouse, ‘Introduction,’ in Jonathan Swainger and Constance Backhouse, eds., People and Place: Historical Influences on Legal Culture (Vancouver: UBC Press 2003), 1, 2. Also see Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press 2002), 261. As a tool of analysis, legal culture has some weaknesses. It is difficult to quantify and can mistakenly blend a diversity of opinion into a single legal culture. Nevertheless, it remains a valuable mode of analysis for its ability to explain how broad intellectual or functional changes (such as liberalism or geography) affect law. It is also useful for its ability to take broad notice of the role of cultural fragments, such as local institutions, local norms, and folk wisdom, in shaping legal systems. Further, it dissuades legal historians from studying law as an autonomous entity, and instead forces one to meld law with politics, religion, and ethnicity, to choose a few examples. For other discussions of ‘legal culture’ as a tool of analysis see, for example, Roger Cotterrell, ‘The Concept of Legal Culture,’ in Nelken, ed., Comparing Legal Cultures, 13–31; Richard J. Ross, ‘The Legal Past of Early New England: Notes for the Study of Law, Legal Culture, and Intellectual History,’ William and Mary Quarterly, 3rd series, 50 (1993), 28–41. 25 Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press 2000). 26 Ibid., 44. McNairn draws on the work of Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger (Cambridge: Massachusetts Institute of Technology Press 1991), 19–26; Craig Calhoun, ‘Introduction: Habermas and the Public Sphere,’ in Craig Calhoun, ed., Habermas and the Public Sphere (Cambridge: Massachusetts Institute of Technology 1992), 1–48. American cultural historians have been quicker than Canadian scholars to

Notes to pages 9–11

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apply Habermas’ insights. For recent discussions, see John L. Brooke, ‘On the Edges of the Public Sphere,’ William and Mary Quarterly 62 (2005), 93–8; David Waldstreicher, ‘Two Cheers for the “Public Sphere” … and One for Historians’ Skepticism,’ William and Mary Quarterly 62 (2005), 107–12; Ruth H. Bloch, ‘Inside and Outside the Public Sphere,’ William and Mary Quarterly 62 (2005), 99–106; Harold Mah, ‘Phantasies of the Public Sphere: Rethinking the Habermas of Historians,’ Journal of Modern History 72 (2000), 153–82; John L. Brooke, ‘Reason and Passion in the Public Sphere: Habermas and the Cultural Historians,’ Journal of Interdisciplinary History 29 (1998), 43–67. Ian Radforth, ‘Sydenham and Utilitarian Reform,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992), 81–5. Greer and Radforth, eds., Colonial Leviathan; Bruce Curtis, True Government by Choice Men? Inspection, Education, and State Formation in Canada West (Toronto: University of Toronto Press 1992); J.I. Little, State and Society in Transition: The Politics of Institutional Reform in the Eastern Townships, 1838–1852 (Montreal: McGill-Queen’s University Press 1997); Bruce Curtis, The Politics of Population: State Formation, Statistics, and the Census of Canada, 1840–1875 (Toronto: University of Toronto Press 2001). Janet Ajzenstat, ‘The Constitutionalism of Etienne Parent and Joseph Howe,’ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791–1991 (Ottawa: Canadian Study of Parliament Group 1992), 168–70. And see Philip Girard, ‘“I Will Not Pin My Faith to His Sleeve”: Beamish Murdoch, Joseph Howe, and Responsible Government Revisited,’ Royal Nova Scotia Historical Society Journal 4 (2001), 48–69; Phillip A. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press 1985), 71, 305. David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press 1991), 172 Ian McKay, ‘The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,’ Canadian Historical Review 81 (2000), 623. Also see Ian McKay, Rebels, Reds, Radicals: Rethinking Canada’s Left History (Toronto: Between the Lines 2005), 49–80, and Ian McKay, ‘Canada as a Long Liberal Revolution: On Writing the History of Actually Existing Canadian Liberalisms, 1840s–1940,’ in Jean-François Constant and Michel Ducharme, eds., Liberalism and Hegemony: Debating the Canadian Liberal Revolution (Toronto: University of Toronto Press 2009), 347–452. McKay, ‘The Liberal Order Framework,’ 624. Tina Loo, Making Law, Order, and Authority in British Columbia, 1821–1871

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Notes to pages 11–12 (Toronto: University of Toronto Press 1994). On liberalism in England in the nineteenth century, see T.A. Jenkins, The Liberal Ascendancy, 1830–1886 (London: Macmillan 1994); Richard Bellamy, ed., Victorian Liberalism: Nineteenth-Century Political Thought and Practice (New York: Routledge 1990); Alan Sykes, The Rise and Fall of British Liberalism, 1776–1988 (London: Longman 1997). McKay, ‘The Liberal Order Framework,’ 633–4. In On Liberty, liberal thinker John Stuart Mill complained of vulgar and ignorant jurors who were easily misled. John Stuart Mill, On Liberty with The Subjection of Women and Chapters on Socialism, ed. Stefan Collini (Cambridge: Cambridge University Press 1989), 68–9. For a recent discussion of liberalism’s effect on property law in British North America, see Philip Girard, ‘Land Law, Liberalism, and the Agrarian Ideal: British North America, 1750–1920,’ in John McLaren, A.R. Buck, and Nancy E. Wright, eds., Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press 2005), 120–43. Lindsay Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,’ Law and History Review 18 (2000), 397–426; Philip Schofield, ‘“Professing Liberal Opinions”: The Common Law, Adjudication and Security in Recent Bentham Scholarship,’ Journal of Legal History 16 (1995), 350–67; Philip Schofield, ‘Jeremy Bentham and Nineteenth-Century English Jurisprudence,’ Journal of Legal History 12 (1991), 58–88; Michael Lobban, ‘Henry Brougham and Law Reform,’ English Historical Review 115 (2000), 1184–215; Robert Stewart, Henry Brougham, 1778–1868: His Public Career (London: Bodley Head 1986), 234–8. W. Wesley Pue, ‘Lawyers and Political Liberalism in Eighteenth- and Nineteenth-Century England,’ in Terrence C. Halliday and Lucien Karpik, eds., Lawyers and the Rise of Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford: Clarendon 1997), 167–206. Bentham complained that juries mitigated some punishments by finding criminals guilty of lesser crimes, rather than applying the law uniformly across England. He mused that it would be better to get rid of juries, replacing them with ‘quasi-juries’ of three or five members which would not pronounce verdicts but would watch over the professional judge and, if necessary, demand a rehearing. John Dinwiddy, Bentham (Oxford: Oxford University Press 1989), 67–8; Shirley Robin Letwin, The Pursuit of Certainty (Cambridge: Cambridge University Press 1965), 170. Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 (Montreal: McGill-Queen’s University Press and Toronto: Osgoode Society 1994); G. Blaine Baker, ‘Law Practice and Statecraft in Mid-Nine-

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teenth-Century Montreal: The Torrance-Morris Firm, 1848 to 1868,’ in Carol Wilton, ed., Essays in the History of Canadian Law, vol. 4, Beyond the Law: Lawyers and Business in Canada, 1830 to 1930 (Toronto: University of Toronto Press and Osgoode Society 1990), 45–91; Philip V. Girard, ‘Patriot Jurist: Beamish Murdoch of Halifax, 1800–1875’ (PhD diss., Dalhousie University 1998). 40 W. Wesley Pue, ‘Introduction: “Where History Actually Happened”: The Pursuit of Canadian Legal History,’ in DeLloyd J. Guth and W. Wesley Pue, eds., Canada’s Legal Inheritances (Winnipeg: Canadian Legal History Project, Faculty of Law, University of Manitoba 2001), xix–xx. 41 See, for example, Douglas Hay, ‘The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century,’ in J.S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton, NJ: Princeton University Press 1988), 305–57. 42 In England, women served on ‘juries of matrons,’ which evaluated for judicial purposes whether women were pregnant. See James Oldham, ‘On Pleading the Belly: A History of the Jury of Matrons,’ Criminal Justice History 6 (1985), 1–64; J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press 1986), 430–1. England allowed women to serve as jurors in 1919, but most Canadian jurisdictions were slow to follow England’s lead. For a discussion of women’s inclusion on juries in Canada, see Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment, 1754–1953 (Toronto: Dundurn Press and Osgoode Society 2000), 123–38. Several American historians have examined the efforts to allow women on juries in the United States in the twentieth century. See Alan Rogers, ‘“Finish the Fight”: The Struggle for Women’s Jury Service in Massachusetts, 1920–1994,’ Massachusetts Historical Review 2 (2000), 27–54; Gretchen Ritter, ‘Jury Service and Women’s Citizenship before and after the Nineteenth Amendment,’ Law and History Review 20 (2002), 479–515; Elisabeth Israels Perry, ‘Rhetoric, Strategy, and Politics in the New York Campaign for Women’s Jury Service, 1917–1975,’ New York History 82 (2001), 53–78. 1: Storms, Roads, and Harvest Times: The Jury System and Attitudes towards Jury Service in Nova Scotia 1 J.M. Bumsted, ’1763–1783: Resettlement and Rebellion,’ in Phillip A. Buckner and John G. Reid, eds., The Atlantic Region to Confederation: A History (Toronto: University of Toronto Press 1994), 162.

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2 Harvey Amani Whifield, ‘African and New World African Immigration to Mainland Nova Scotia, 1749–1816,’ Journal of the Royal Nova Scotia Historical Society 7 (2004), 102–11. 3 Robert Mackinnon, ‘Roads, Cart Tracks, and Bridle Paths: Land Transportation and the Domestic Economy of Mid-Nineteenth-Century Eastern British North America,’ Canadian Historical Review 84 (2003), 179. For a sense of the regional, ethnic, and economic divisions in Nova Scotian society, see Graeme Wynn, ‘On the Margins of Empire, 1760–1840,’ in Craig Brown, ed., The Illustrated History of Canada (Toronto: Lester and Orpen Dennys 1987), 268–9; Brian Cuthbertson, Johnny Bluenose at the Polls: Epic Nova Scotia Election Battles, 1758–1848 (Halifax: Formac Publishing 1994); Rusty Bittermann, Robert A. MacKinnon, and Graeme Wynn, ‘Of Inequality and Interdependence in the Nova Scotia Countryside, 1850–1870,’ Canadian Historical Review 74 (1993), 1–43; Graeme Wynn, ‘Places at the Margin: The Atlantic Provinces,’ in Larry McCann and Angus Gunn, eds., Heartland and Hinterland: A Regional Geography of Canada, 3rd ed., (Scarborough, ON: Prentice Hall 1998), 174–7. 4 The ability of jurors to converse in English was often remarked upon. For example, in 1840 Richard James Forestall suggested that in Pictou, among other places, there were few persons over the age of sixty who were capable of performing the duties of grand jurors, ‘either from incapacity or from a want of knowledge of English.’ ‘Provincial Parliament,’ Acadian Recorder, 11 January 1840. In 1853 The Casket, an Antigonish newspaper, complained of jurors who were ‘ignorant of the general business of the county and even of the language in which they are addressed.’ ‘The Jury Law,’ The Casket, 11 August 1853, 2. Also see McLellan v. Ingraham et al. (1882), 15 N.S.R. 164 at 172. 5 This introduction to Nova Scotia is largely drawn from Margaret R. Conrad and James K. Hiller, Atlantic Canada: A Concise History (Don Mills, ON: Oxford 2006). 6 D.G. Bell, ‘Maritime Legal Institutions under the Ancien Régime, 1710– 1850,’ Manitoba Law Journal 23 (1996), 106. Also see T.G. Barnes, ‘“The Dayly Cry for Justice”: The Juridical Failure of the Annapolis Royal Regime, 1713–1749,’ in Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law, vol. 3, Nova Scotia (Toronto: University of Toronto Press and Osgoode Society 1990), 27–8; Thomas Garden Barnes, ‘“As Near as May Be Agreeable to the Laws of this Kingdom”: Legal Birthright and Legal Baggage at Chebucto, 1749,’ in Peter Waite, Sandra Oxner, and Thomas Barnes, eds., Law in a Colonial Society: The Nova Scotia Experience (Toronto: Carswell 1984), 1–23.

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7 Supreme Court Circuit Act, S.N.S. 1776, c.6; Jim Phillips and Philip Girard, ‘Courts, Communities, and Communication: The Nova Scotia Supreme Court on Circuit, 1816–1850,’ forthcoming in H. Foster, A. Buck, and B. Berger, eds., Legal History in Canada, Australia and New Zealand: Comparative and Contextual Perspectives (Vancouver: University of British Columbia Press). 8 Barry Cahill and Jim Phillips, ‘The Supreme Court of Nova Scotia: Origins to Confederation,’ in Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia 1754–2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press and Osgoode Society 2004), 72; Sandra E. Oxner, ‘The Evolution of the Lower Court of Nova Scotia,’ in Waite, Oxner, and Barnes, eds., Law in a Colonial Society, 59–79. 9 Jim Phillips, ‘“Securing Obedience to Necessary Laws”: The Criminal Law in Eighteenth Century Nova Scotia,’ Nova Scotia Historical Review 12, no. 2 (1992), 92–106. 10 These acts required that grand jurors possess a freehold estate of ten pounds per year or a personal estate of 100 pounds. The property qualification for petit jurors was considerably lower: twenty shillings in freehold estate or a personal estate of ten pounds. The property qualification for grand jurors was higher than the qualification for voting in elections, while the petit juror standard was lower. In 1759, the franchise qualification was set at freeholders whose property provided a return of forty shillings. John Garner, The Franchise and Politics in British North America (Toronto: University of Toronto Press 1969), 16; A History of the Vote in Canada, 2nd ed. (Ottawa: Office of the Chief Electoral Officer of Canada 2007), 9–10. 11 Jim Phillips, ‘Halifax Juries in the Eighteenth Century,’ in Greg T. Smith, Allyson N. May, and Simon Devereaux, eds., Criminal Justice in the Old World and the New (Toronto: Centre of Criminology 1998), 138–40. 12 Phillips, ‘Halifax Juries in the Eighteenth Century,’ 149; An Act in amendment of the Several Acts for Regulating Juries, S.N.S. 1777, c.4. A copy may be found in NSARM, RG5, series S, vol. 4.5, file 1777, c.4. 13 The ‘prothonotary and clerk of the Crown’ acted as the chief clerk of the Supreme Court in Halifax. The prothonotary completed the administrative work of the court, as well as serving as the clerk of the crown in criminal cases. Deputy prothonotaries performed the work of the chief prothonotary in each county. Cahill and Phillips, ‘The Supreme Court of Nova Scotia: Origins to Confederation,’ 71–2. 14 An Act for regulating Petit Juries, and declaring the qualification of Jurors, S.N.S. 1759, c.5; Juries, S.N.S. 1760, c.9. A copy of the 1759 act may be found in NSARM, RG5, series S, vol. 1, File 4, c.5.

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15 After the sheriff selected the panel, the twelve-member jury was drawn by ballot. John H. Langbein, ‘The English Criminal Trial Jury on the Eve of the French Revolution,’ in Antonio Padoa Schioppa, ed., The Trial Jury in England, France, Germany, 1700–1900 (Berlin: Duncker and Humblot 1987), 26; R. Blake Brown, ‘“A Delusion, A Mockery, and a Snare”: Challenges to the Array and Jury Selection in England and Ireland, 1800–1850,’ Canadian Journal of History 39 (2004), 4–5. 16 An Act to regulate Juries, S.N.S. 1796, c.2. 17 An act to regulate Juries, S.N.S. 1796, c.2, ss.2, 3. For a contemporary description, see Beamish Murdoch, Epitome of the Laws of Nova Scotia, vol. 3 (Halifax: Joseph Howe 1833), 171–4. Cape Breton, which existed as a separate colony from 1784 to 1820, employed a similar jury selection system, though with slightly lower property qualifications. LAC, MG 9, B11: Cape Breton Ordinances: ‘An Ordinance for regulating Grand and Petit Juries and Declaring the Qualification of Jurors, 1803.’ 18 Brown, ‘“A Delusion, A Mockery, and a Snare,”’ 1–26. 19 R. Blake Brown, ‘Challenges for Cause, Stand-Asides, and Peremptory Challenges in the Nineteenth Century,’ Osgoode Hall Law Journal 38 (2000), 453–94; E.P. Thompson, ‘In Defence of the Jury,’ in Persons and Polemics (London: Merlin Press 1994), 157–64; John F. McEldowney, ‘“Stand By for the Crown”: An Historical Analysis,’ Criminal Law Review [1979], 272–83. 20 See, for example, Conor Hanly’s study of the decline of the civil jury in nineteenth-century England, in which he pays no attention to the attitude of jurors to jury service. Conor Hanly, ‘The Decline of Civil Jury Trial in Nineteenth-Century England,’ Journal of Legal History 26 (2005), 253–78. Also see Paul Romney, ‘From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture,’ Law and History Review 7 (1989), 121–74. On the other hand, James Masschaele has recently shown that medieval jurors regularly avoided jury service in his work Jury, State, and Society in Medieval England (New York: Palgrave MacMillan 2008), 200–5. 21 ‘Jury Bill,’ Novascotian, 12 March 1825. Also see ‘The Intrepid Juryman’ Novascotian, 16 March 1825; Sir Richard Phillips, ‘Golden Rules for Jurymen,’ Belcher’s Farmer’s Almanack (1832) (Halifax: C.H. Belcher ca. 1832), 10–12. 22 For a full discussion of the complaints issued against jury service in Nova Scotia, see R. Blake Brown, ‘Storms, Roads, and Harvest Time: Criticisms of Jury Service in Pre-Confederation Nova Scotia,’ Acadiensis 36 (2006), 93–111. 23 Phillips, ‘Halifax Juries in the Eighteenth Century,’ 150–1. Nancy Parker estimates that the Halifax grand jury list at Confederation included less

Notes to pages 22–3

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25 26

27 28

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than 4 per cent of Halifax’s adult male population, while the petit jury list included 8 per cent. Nancy Kay Parker, ‘Reaching a Verdict: The Changing Structure of Decision-Making in the Canadian Criminal Courts, 1867–1905’ (PhD diss., York University 1999), 267, 322. Grand juries outside of Halifax consisted of prominent local men, though their occupations tended to be diverse. For example, the grand jury in Queens County in 1857 included fourteen farmers, four merchants, three lumbermen, one blacksmith, one millwright, and one seaman. NSARM, RG34–319, G1: Queens County Grand Jury Lists, 1812–1857. Similarly, the grand jury in Shelburne for 1860 had ten farmers, four mariners, four fishermen, two carpenters, one merchant, one seaman, one sawyer, and one blacksmith. NSARM, RG34–321, G269: Shelburne County Court of Sessions, Grand Jury Lists. In 1832, the legislature allowed the Inferior Court of Common Pleas to form special juries in the same way as the Supreme Court. As of 1834, they were also allowed in smuggling cases. An Act concerning the Inferior Courts of Common Pleas within this Province, S.N.S. 1832, c.35; An Act for the Prevention of Smuggling, S.N.S. 1834, c.50, s.14. On the use of special juries in England see James C. Oldham, ‘The Origins of the Special Jury,’ University of Chicago Law Review 50 (1983), 137–221; James Oldham, ‘Special Juries in England: Nineteenth Century Usage and Reform,’ Journal of Legal History 8 (1987), 148–66. Murdoch, Epitome of the Laws of Nova Scotia, vol. 3, 175–6; An Act to regulate Juries, S.N.S. 1796, c.2, s.6. ‘Special Juries,’ Novascotian, 9 March 1825. Also see Acadian Recorder, 26 January 1822. The reference to ‘guinea pigs’ drew from the English experience of paying special jurors. In eighteenth-century England, special jurors received one guinea for each case they decided. This was a sufficiently large sum that some citizens sought out this type of jury duty. This led Jeremy Bentham to complain about ‘guinea-men,’ while in popular vernacular a more vulgar phrase, ‘guinea pigs,’ was used. See Jeremy Bentham, The Elements of the Art of Packing, as Applied to Special Juries, Particularly in Cases of Libel Law (London: Effingham Wilson 1821); Oldham, ‘Special Juries in England,’ 157. David A. Sutherland, ‘Charles Rufus Fairbanks,’ DCB, 7: 278–80. ‘Jury Bill,’ Novascotian, 12 March 1825. In 1832, the Novascotian again repeated this remarkable claim of lengthy jury service. ‘Jurors,’ Novascotian, 3 May 1832. ‘House of Assembly,’ Novascotian, 26 February 1829. An Act relating to Special Juries, S.N.S. 1825, c.24, ss.1–3.

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Notes to page 24

31 An Act in amendment of, and in addition to, an Act, passed in the thirty-sixth year of His late Majesty’s Reign, entitled, An Act to regulate Juries, S.N.S. 1827, c.32. 32 NSARM, RG5, series P, vol. 2, no. 29. Citizens from across Nova Scotia sent numerous petitions about jury service. Today, petitions are usually seen as nothing more than a way to create publicity for a cause or pester a government unwilling to adopt a particular proposal. For much of the nineteenth century, however, petitions were an important means of communication between the periphery and the centre of the colony. Legislators took seriously the complaints and concerns of petitioners, frequently passing reforms in response. Petitions thus offer very valuable insights into the views of Nova Scotians eligible for jury service, including their feelings about the place of the jury in the colony’s legal culture. Petitions pose certain problems for historians, however. To some extent, petitioners tended to adopt a standardized format in phrasing their complaints and requests. One must also be aware that petitioners were frequently ‘making a case’ – they prepared their arguments as forcefully and convincingly as possible, and were thus quite capable of exaggerating the support for their position. For example, in debating a petition in 1825 that concerned the movement of a Supreme Court sitting from River Philip to Amherst, an opponent of the bill examined the petition and dismissed it by asserting that of the 270 names on the petition, about 100 were ‘small boys, apprentices, hired servants, transient persons, blacks or colored persons.’ ‘Provincial Parliament,’ Novascotian, 13 April 1825. There is also the question of whether petitions can be read as truly reflecting a broad spectrum of public opinion. In his study of state institutions in the Eastern Townships of Quebec, J.I. Little faced this dilemma. Little used petitions extensively, and acknowledged ‘that local leaders by definition articulated the local initiatives and responses,’ but assumed that ‘the rest of the community could generally decide how or whether to follow.’ J.I. Little, State and Society in Transition: The Politics of Institutional Reform in the Eastern Townships, 1838–1852 (Montreal: McGill-Queen’s University Press 1997), 10, 12. Also see J.K. Johnson, ‘“Claims of Equity and Justice”: Petitions and Petitioners in Upper Canada, 1815–1840,’ Histoire Sociale/Social History 28 (1995), 219–40; Mary M. Stokes, ‘Petitions to the Legislative Assembly from Local Governments, 1867–1877: A Case Study in Legislative Participation,’ Law and History Review 11 (1993), 145–80. 33 Supreme Court Act, S.N.S. 1816, c.2, s.1. 34 NSARM, RG5, series P, vol. 3, no. 1 (1825). 35 Cumberland Circuit Act, S.N.S. 1830, c.4. Such complaints about the location

Notes to pages 25–6

36 37

38 39 40 41

42

43

239

of courthouses continued into the 1850s. In 1850, petitioners from North and South Sydney complained of the vast size of the County of Cape Breton, which made it extremely difficult for magistrates and jurors to attend the courts at Sydney. JHA 1850, 434. Inhabitants of the township of Chester wrote to the assembly in 1857 to note that their township was ‘situated at the eastern end of this County, and that many of the inhabitants are now obliged to travel forty miles and upwards to Lunenburg for the purpose of attending on Juries, and for other public business.’ NSARM, RG5, series P, vol. 16, no. 26 (12 February 1857). Also see NSARM, RG5, series P, vol. 3, no. 67 (13 February 1828); NSARM, RG5, series P, vol. 4, no. 5 (26 January 1830); NSARM, RG5, series P, vol. 18, no. 68 (24 February 1863). Mackinnon, ‘Roads, Cart Tracks, and Bridle Paths,’ 184. Joseph Howe, Western and Eastern Rambles: Travel Sketches of Nova Scotia, ed. M.G. Parks (Toronto: University of Toronto Press 1973), 15–27; John N. Grant, ‘Travel and Travelers on the Eastern Shore,’ Nova Scotia Historical Quarterly 6, no. 1 (1976), 17–32; Bradford G. Yuill, The Origins and Development of Colchester Roads (Truro, NS: Colchester Historical Museum 1981); Arthur J. Stone, Journey through a Cape Breton County: Pioneer Roads in Richmond County (Sydney, NS: College of Cape Breton Press 1991); Reginald D. Evans, ‘Stage Coaches in Nova Scotia, 1815 to 1867,’ Collections of the Nova Scotia Historical Society 24 (1938), 107–34; G.P. de T. Glazebrook, A History of Transportation in Canada, vol. 1, Continental Strategy to 1867 (Toronto: McClelland and Stewart 1964), 104–39; Rosemary E. Ommer, ‘The 1830s: Adapting Their Institutions to Their Desires,’ in Buckner and Reid, eds., The Atlantic Region to Confederation, 295. Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 66. Also see Phillips and Girard, ‘Courts, Communities, and Communication.’ NSARM, RG5, series P, vol. 3, no. 65 (22 January 1828). NSARM, RG5, series P, vol. 5, no. 4 (17 January 1834). NSARM, RG5, series GP, vol. 1, nos. 22, 23. Also see Novascotian, 26 March 1829; NSARM, RG5, series P, vol. 2, no. 29; Charles Bruce Fergusson, The Boundaries of Nova Scotia and its Counties (Halifax: Public Archives of Nova Scotia 1966), 29. NSARM, RG5, series P, vol. 3, no. 66 (10 February 1828). In 1842, petitioners from Cape Breton said they had to travel sixty miles to the courthouse, ‘to arrive at which several ferries must be crossed, (over one of which a horse cannot be taken but in calm weather).’ NSARM, RG5, series P, vol. 8, no. 113 (27 September 1842). Also see NSARM, RG5, series P, vol. 3, no. 65 (22 January 1828); NSARM, RG5, series P, vol. 4, no. 38 (5 January 1833). Novascotian, 26 March 1829.

240

Notes to pages 26–30

44 Parks, Western and Eastern Rambles, 27–9. 45 JHA 1846, App. 37, 129. In a petition addressed to the lieutenant governor, residents of Hants expressed concern with lodging in asking that the courthouse be moved from Windsor to a more central part of the county. The petitioners stressed that the move would alleviate problems of accommodation; residents from several communities ‘could leave their own dwellings in the morning attend Court and return to their respective houses at night.’Also, their suggested location was ‘a place well calculated to furnish every kind of accommodation for those who might stand of need.’ NSARM, RG5, series P, vol. 2, no. 29. 46 Gould v. Gould (1842), 3 N.S.R. 87. 47 Ibid. 48 Ibid. 49 Ibid., 94. 50 NSARM, RG5, series P, vol. 7, no. 75 (1839). 51 JHA 1838, App. 39, 109–10. Also see JHA 1838, App. 12. 52 A second study of the caseload of the Nova Scotia courts reported to the assembly in 1841 that between 1835 and 1839 there were 548 trials in the Supreme Court and the Common Pleas across the entire province. JHA 1841, App. 22, 102. See Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 90. 53 T.W. Acheson, ‘The 1840s: Decade of Tribulation,’ in Buckner and Reid, eds., The Atlantic Region to Confederation, 320; Julian Gwyn, Excessive Expectations: Maritime Commerce and the Economic Development of Nova Scotia, 1740–1870 (Montreal: McGill-Queen’s University Press 1998), 67–78. 54 NSARM, RG5, series P, vol. 6, no. 98 (7 March 1837). Also see NSARM, RG5, series P, vol. 7, no. 26: (1838); NSARM, RG5, series P, vol. 6, nos. 107–109 (n.d.); NSARM, RG5, series P, vol. 6, no. 108 (n.d.); Novascotian, 23 April 1835. 55 NSARM, RG5, series P, vol. 5, no. 72 (1834). Emphasis in original. 56 NSARM, RG5, series P, vol. 3, no. 30 (13 February 1826). 57 NSARM, RG5, series P, vol. 5, no. 13 (4 February 1834). 58 Novascotian, 23 April 1835. Emphasis in original. 59 Ibid. 60 David Murray, ‘Just Excuses: Jury Culture in Barrington Township, Nova Scotia, 1795–1837,’ in Margaret Conrad and Barry Moody, eds., Planter Links: Community and Culture in Colonial Nova Scotia (Fredericton, NB: Acadiensis Press 2001), 46. 61 Murray, ‘Just Excuses,’ 49–53. See NSARM, RG34–321, files G320–373, Shelburne County Court of Sessions, Barrington Excuse letters, 1795–1837;

Notes to pages 30–2

62 63 64

65

66 67

68 69

70

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NSARM, RG39c, vol. 2, files 14.20, 14.21, Shelburne County Supreme Court, excuses for jury duty, 1837. Act to Regulate Juries, S.N.S. 1796, c.2, s.4. An Act for the further regulation of Inferior Courts, and Special Jurors, S.N.S. 1805, c.15, s.2; An Act relating to Special Juries, S.N.S. 1825, c.24, s.2. JHA 1838, App. 44, 127. There is ample additional evidence that jurors failed to attend Nova Scotia courts despite the fines. The surviving proceeding books of the General Sessions in Nova Scotia, for instance, are replete with references to absent jurors. See, for example, NSARM, RG34– 316 P10: Kings County Court of Sessions Proceedings, 1812–1844; NSARM, RG34–301, vol. P2 (1829–1841): Annapolis County General Sessions Grand Jury Book; NSARM, RG34–312, P17: Halifax Grand Jury Book, 1843–1851; NSARM, RG34–319, G1: Queens County General Sessions Grand Jury Lists. Also see An Act relating to Special Juries, S.N.S. 1825, c.24; NSARM, RG5, series P, vol. 8, no. 113 (27 September 1842); NSARM, RG5, series P, vol. 8A, no. 84 (27 February 1844); ‘For the Recorder,’ Acadian Recorder, 26 January 1822; Halifax British Colonist, 24 March 1857, 2. The exemption list also included the law officers of the courts; staff officers of the army and army clerks; labourers and clerks in the naval yard and ordnance; officers of the customs; registrar of deeds; chief surveyor; naval officers; clergy; attorneys; physicians; surgeons; and engine men. Juries, S.N.S., 36 Geo III, c.2; An Act to regulate Juries, S.N.S. 1796, c.2, s.1. An Act for the Regulation of Juries, S.N.S. 1838, c.6, s.2. For further exemptions from jury service, see An Act to exempt certain Officers and persons …, S.N.S. 1844, c.11, s.1. Novascotian, 8 March 1838. Elizabeth Mancke, The Fault Lines of Empire: Political Differentiation in Massachusetts and Nova Scotia, ca. 1760–1830 (New York: Routledge 2005); D.C. Harvey, ‘The Struggle for the New England Form of Tonwnship Government in Nova Scotia,’ Report of the Annual Meeting of the Canadian Historical Association [1933], 22. For a contemporary discussion of the role of magistrates in the first third of the nineteenth century see John George Marshall, The Justice of the Peace and County & Township Officer in the Province of Nova Scotia (Halifax: Gossip and Coade 1837). On magistrates in Nova Scotia, see Ronald A. MacDonald, ‘The Squires of Antigonish,’ Nova Scotia Historical Review 10, no. 1 (1990), 53–73; J. Murray Beck, The Government of Nova Scotia (Toronto: University of Toronto Press 1957), 136–7; W.S. MacNutt, The Atlantic Provinces: The Emergence of Colonial Society, 1712–1857 (Toronto: McClelland and Stewart 1965), 186–7.

242

Notes to pages 32–4

71 Graeme Wynn, ‘Ideology, Society, and State in the Maritime Colonies of British North America, 1840–1860,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto: University of Toronto Press 1992), 313; Beck, The Government of Nova Scotia, 40–1; J. Murray Beck, The Evolution of Municipal Government in Nova Scotia, 1749–1973 (Halifax: Nova Scotia Royal Commission on Education, Public Services, and Provincial-Municipal Relations 1973), 7–11. 72 Halifax British Colonist, 29 January 1856, 2. Presentments of grand juries on the state of jails did not always lead to action. In 1848, ‘Publicola’ noted that the Halifax grand jury for many years had complained about the disgraceful state of the gaols, ‘yet these representations have been unheeded.’ Acadian Recorder, 26 February 1848. 73 A.A. MacKenzie, ‘John Joseph Marshall,’ DCB, 9: 536–7. Heffernan would go on to serve as a liberal member of the Assembly from 1859 to 1867. Shirley B. Elliott, ed., The Legislative Assembly of Nova Scotia, 1758–1983: A Biographical Directory (Halifax: Province of Nova Scotia 1984), 93. Animosity between Marshall and Heffernan seems to have endured. In 1849, Heffernan petitioned the assembly, arguing that Marshall’s success in a race for a seat in the assembly should be voided because of voting irregularities. NSARM, RG5, series P, vol. 10, no. 83. 74 ‘Parliamentary Portraits, Painted with Pen and Ink,’ Acadian Recorder, 17 May 1856, 2. 75 Novascotian, 16 May 1839. 76 Novascotian, 23 May 1839. 77 Novascotian, 4 April 1839. Also see ‘Answer to Mr J.J. Marshall,’ Novascotian, 2 May 1839; Novascotian, 23 May 1839; ‘Guysborough Affairs,’ Novascotian, 19 June 1839. 78 ‘Answer to Mr J.J. Marshall,’ Novascotian, 2 May 1839; ‘Guysborough Affair,’ Novascotian, 30 May 1839; ‘Guysborough Affairs,’ Novascotian, 19 June 1839. 79 JHA 1839–1840, App. 75, 206. 80 JHA 1839–1840, 817. 81 NSARM, RG1, vol. 214.5D, Council Minutes (12 December 1840). Sawers resigned his position as president of the General Sessions in November 1839, though it is unclear whether his dispute with Marshall played a role in his decision. In a letter to Lieutenant Governor Colin Campbell, Sawers emphasized the expense and inconvenience of the role in explaining his decision to resign. NSARM, RG1, vol. 245, no. 74 (25 November 1839). 82 John Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press 1986), 319–22.

Notes to pages 34–7

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83 An act to regulate Juries, S.N.S. 1796, c.2, ss.2–3. 84 NSARM, RG5, series P, vol. 4, no. 63 (28 February 1833). 85 JHA 1833, 356. Shirley Elliott incorrectly indicates that Lovett only served in the assembly until 1830. Elliott, ed., The Legislative Assembly of Nova Scotia, 1758–1983, 119. For Lovett’s continued membership, see Belcher’s Farmer’s Almanack (1833) (Halifax: C.H. Belcher ca. 1833), 51. 86 An Act relating to Grand Jurors, S.N.S. 1833, c.51, s.2. The act also increased property qualifications for jury service. The qualification for grand jurors was increased to a yearly freehold worth fifteen pounds, a five pound increase, or personal estate worth 300 pounds, a threefold increase. 87 In the 1830s, the chief justice of the Supreme Court nominated three people in each county to serve as sheriff; the lieutenant governor then chose one from this list. Philip Girard, ‘The Supreme Court of Nova Scotia: Confederation to the Twenty-First Century,’ in Girard, Phillips, and Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004, 152; S.N.S., 35 Geo. III, c.1; An Act to impower the Governor, Lieutenant Governor, or Commander in Chief, to appoint Sheriffs in such Counties where it may be found necessary, S.N.S. 1778, c.2. By 1851, the chief justice (or another two judges in his stead) and another judge of the Supreme Court, along with two members of the executive council, selected the three appropriate candidates for the sheriff in each county every year. In practice, the lieutenant governor then appointed the first person from the short list. Brenton Halliburton to William Young (15 February 1856), NSARM, MG2, vol. 734, no. 750. 88 NSARM, RG5, series P, vol. 5, no. 49 (15 December 1834). Emphasis in original. 89 The principle of the ‘balanced constitution’ was widely known in British North America. Robert L. Fraser, ‘“All the Privileges which Englishmen Possess”: Order, Rights, and Constitutionalism in Upper Canada,’ in Robert L. Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of National Biography (Toronto: University of Toronto Press and the Osgoode Society 1992), xxviii–xxix; Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press 2000), 24–43. 90 NSARM, RG5, series P, vol. 5, no. 59 (22 December 1834). 91 Ibid. 92 NSARM, RG5, series P, vol. 6, no. 101 (9 March 1837). 93 See, for example, Mancke, The Fault Lines of Empire: Political Differentiation in Massachusetts and Nova Scotia, ca. 1760–1830. 94 See, for example, NSARM, RG5, series P, vol. 16, no. 37 (2 March 1857); NSARM, RG5, series P, vol. 16, no. 93 (18 March 1858).

244

Notes to pages 37–8

95 JHA 1837, 54. Complaints about the courts in that area were not new. See, for example, NSARM, RG5, series GP, vol. 1, no. 21 (1819). 96 JHA 1838, 407; An Act to divide and set off the Township of Saint Mary’s, in the County of Guysborough, as a separate and distinct District, S.N.S., 1840, c.29. 97 See, for example, NSARM, RG5, series P, vol. 3, no. 60 (4 October 1827); NSARM, RG5, series P, vol. 3, no. 65 (22 January 1828). An 1843 act that altered the times of the Supreme Court in Truro and Amherst, was prefaced by the comment that ‘the times of holding the Supreme Court in some of the Counties in this Province, have been found inconvenient,’ and thus it was desirable to alter the dates of the Court. An Act to alter the Act, entitled, An Act to improve the Administration of the Law, and to reduce the number of Courts of Justice within this Province, and to diminish the expense of the Judiciary therein, S.N.S. 1843, c.9. Also see An Act to provide for an additional Term of the Supreme Court in the County of Digby, and to alter the time of the holding of the Supreme Court at Yarmouth, S.N.S. 1839, c.30. Of course, not everyone in a given county agreed on the necessity of a new court, or when and where the courts should sit. This sometimes led to competing petitions to the legislature. For example, petitioners from the northeastern district of Cape Breton asked the assembly not to change the date of the Common Pleas. They said they were responding to a petition asking that the court’s dates be shifted. NSARM, RG5, series P, vol. 4, no. 86 (n.d.). Also see NSARM, RG5, series P, vol. 5, no. 36 (19 March 1834). 98 An Act for the Regulation of Juries, S.N.S. 1838, c.6, s.2. 99 See, for example, NSARM, RG34–312, P17: Halifax Grand Jury Book, 1843–1851; NSARM, RG34–321, G245-G270: Shelburne County Court of Sessions, Grand Jury Lists. 100 Summary Trial Act, S.N.S. 1817, c.11; Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 93–4; Philip Girard, ‘The Rise and Fall of Urban Justice in Halifax, 1815–1886,’ Nova Scotia Historical Review 8 (1988), 59–61. 101 Summary Trial Act – Cape Breton, S.N.S. 1837, c.59. 102 Sydney County was created in 1784 to administer the eastern mainland of Nova Scotia. Between 1824 and 1836, Sydney County was divided into upper and lower districts. In 1836, the lower district became Guysborough County and the upper district became a separate county, taking the name Antigonish County in 1863. Fergusson, The Boundaries of Nova Scotia and its Counties, 17–18; Harriet Cunningham Hart, History of the County of Guysborough (Belleville, ON: Mika Publishing 1975), 163. 103 NSARM, RG5, series P, vol. 7, no. 62 (23 February 1839). Also see NSARM, RG5, series P, vol. 8A, no.71 (18 February 1844); NSARM, RG5, series P, vol. 10, no. 84 (22 January 1849). Similar calls for easier access to

Notes to pages 38–9

104

105

106 107

108

109

110 111 112

113

245

the courts were made in Lower Canada. J.I. Little has found that in the Eastern Townships of Lower Canada in the 1840s there were persistent demands for ready access to the law courts, usually to assist in debt collection. Little, State and Society in Transition, 50. An Act for the Summary Trial of Actions, S.N.S. 1807, c.12; Summary Trial Act, S.N.S. 1817, c.11; Halifax Court of Commissioners Act, S.N.S. 1824, c.36; Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 93–4. Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 94; An Act for the Summary Trial of Actions, S.N.S. 1807, c.12; An Act for reducing the Expenses of Suits at Law, In Certain Cases, S.N.S. 1832, c.53. An Act in relation to Trials of Summary Causes in the Supreme Court, S.N.S. 1845, c.10. An act to continue and amend the Act for the Summary Trial of Actions, and the Act in amendment thereof, S.N.S. 1837, c.60, ss.4–8. Also see An Act to continue the Act for the Summary Trial of Actions, and the Acts in amendment thereof, S.N.S. 1838, c.50; An Act for the Summary Trial of Actions before Justices of the Peace, S.N.S. 1842, c.33. Michael Lobban, ‘The Strange Life of the English Civil Jury, 1837–1914,’ in John W. Cairns and Grant McLeod, eds., ‘The Dearest Birth Right of the People of England’: The Jury in the History of the Common Law (Oxford: Hart 2002), 176–7. ‘Judiciary Reform,’ Colonial Patriot, 5 June 1830. Bentham’s call for small juries can be found in Jeremy Bentham, Justice and Codification Petitions: Being Forms Proposed for Signature by all Persons Whose Desire it is to See Justice No Longer Sold, Delayed, or Denied … (London: R. Heward 1829), 181–2. Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1851, c.131; Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c.131. Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 89–91. NSARM, RG5, series P, vol. 5, no. 38 (September 1834). Also see NSARM, RG5, series P, vol. 3, nos.71, 77 (1828); NSARM, RG5, series P, vol. 5, no. 73 (1834). NSARM, RG5, series P, vol. 7, no. 26 (1838). Also see NSARM, RG5, series P, vol. 6, no. 98 (7 March 1837); NSARM, RG5, series P, vol. 5, no. 72 (1834); NSARM, RG5, series P, vol. 7, no. 34 (11 January 1839; NSARM, RG5, series P, vol. 7, no. 53 (11 February 1839). This is not to say that everyone agreed that the Common Pleas should be abolished. The citizens who argued for the retention of the Common Pleas, however, did not want more courts, just the right courts. Thus, a number of petitions from Cumberland County attempted to prevent the abolition of the Common

246

114 115

116 117 118 119 120

121

122

Notes to pages 39–41 Pleas, arguing that the assembly should instead abolish the September term of the Supreme Court. NSARM, RG5, series P, vol. 5, no. 69 (1834); NSARM, RG5, series P, vol. 5, no. 68 (1834); NSARM, RG5, series P, vol. 5, nos. 70–71 (1834); NSARM, RG5, series P, vol. 6, nos. 19–21 (21 January 1835); NSARM, RG5, series P, vol. 7, no. 68 (1839); NSARM, RG5, series P, vol. 7, no. 69 (1839); NSARM, RG5, series P, vol. 7, no. 73 (1839); NSARM, RG5, series P, vol. 7, nos. 76, 77, 77A (1839). See also NSARM, RG5, series P, vol. 7, no. 36 (19 January 1839); NSARM, RG5, series P, vol. 7, no. 70 (1839); NSARM, RG5, series P, vol. 7, no. 71 (1839); NSARM, RG5, series P, vol. 7, no. 72 (1839); NSARM, RG5, series P, vol. 7, no. 74 (1839). ‘House of Assembly,’ Novascotian, 26 February 1829. ‘Provincial Parliament of Nova Scotia,’ Novascotion, 26 March 1834; JHA 1834–1835, 754, 777, 804; J. Murray Beck, ‘Alexander Stewart,’ DCB, 9: 746–8. JHA 1838, 245. JHA 1838, App. 39, 110. Ibid., 114. Ibid., 119. An Act to improve the Administration of the Law, and to reduce the number of Courts of Justice within the Province, and to diminish the expense of the Judiciary therein, S.N.S. 1841, c.3, preamble. An Act to improve the Administration of the Law, and to reduce the number of Courts of Justice within the Province, and to diminish the expense of the Judiciary therein, S.N.S. 1841, c.3, ss.24–25, 32. As early 1825, the government said that jurors were not required during Trinity term in Halifax unless specially summoned. An Act relating to the Terms of the Supreme Court at Halifax, S.N.S. 1825, c.23. In the mid- to late 1840s, the legislature reduced the inconvenience of jurors in other ways. In 1846, the legislature stipulated that fines for the non-attendance of jury duty could not be imposed until after the last day of the term following the one that led to the fine. Absent jurors were to receive a notice of the fine before the next court so that they could appear and offer an acceptable excuse for their absence. An Act to continue and amend the Acts for the Regulation of Juries, S.N.S. 1846, c.37. This limit on the imposition on fines was intended to placate residents who faced fines for inadvertent or excusable absences. For those who did attend, the legislature took other steps to ensure that they would not be tied up in court for too long. For example, in 1847 the legislature separated appeals and new business at the Supreme Court in Halifax. An Act further to improve the Administration of the Law, S.N.S. 1847, c.2. This change likely occurred for

Notes to pages 41–4

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the convenience of jurors. Before the passage of the act, jurors were called to attend an entire court term, and might have to wait around for days to allow for the hearing of all appeals. By separating appeals and trials, the legislature ensured that jurors would not have to attend court at those times when nothing but legal arguments took place. Cahill and Phillips, ‘The Supreme Court of Nova Scotia,’ 97–8. An 1847 act affecting Pictou and Cumberland Counties also relieved jurors of some of their burden. Petit jurors were summoned to attend the Supreme Court in Pictou and Cumberland for the whole term. However, the 1841 act that eliminated the Common Pleas had allowed the Supreme Court to continue once a year, if the business required it, until the second Saturday after the day of the opening of the term. This, the legislature noted, was ‘burthensome on the Jurors who attend the first week of the said Term’ who were then ‘compelled to attend the second week.’ The solution was to select fortyeight jurors, then divide them into two panels of twenty-four. The first panel drawn attended in the first week; the second panel in the second week. An Act in addition to an Act for the Regulation of Juries so far as relates to certain Counties herein named, S.N.S. 1847, c.22, preamble; JHA 1847, 608. A similar provision for Halifax became law in 1849. At the sittings of the Supreme Court after Michaelmas term each year, the first panel of trial jurors had to appear. A second panel appeared the second week, but if proceedings continued past two weeks, then the first panel appeared again. This alternating of jury panels was to continue until the sitting ended. An Act further to Improve the Administration of the Law, S.N.S. 1849, c.22, ss.8–10. Also see An Act to alter and amend Chapter 126 of the Revised Statutes, ‘Of the Supreme Court and its Officers’, S.N.S. 1856, c.2, s.8; Of the Supreme Court and its officers, R.S.N.S. 1864, c.126, s.8. 123 Douglas Hay, ‘The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century,’ in J.S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200– 1800 (Princeton, NJ: Princeton University Press 1988), 305–57. 2: The Jury System and Attitudes towards Jury Service in Upper Canada 1 This introduction to Upper Canada is largely drawn from Peter A. Baskerville, Sites of Power: A Concise History of Ontario (Don Mills, ON: Oxford 2005). 2 Margaret A. Banks, ‘The Evolution of the Ontario Courts, 1788–1981,’ in David H. Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: University of Toronto Press and Osgoode Society 1983), 500–3.

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Notes to pages 44–6

3 John C. Weaver, Crimes, Constables, and Courts: Order and Transgression in a Canadian City, 1816–1970 (Montreal: McGill-Queen’s University Press 1995), 80. 4 An act to establish trials by jury, S.O. 1792, c.2. 5 An Act for the better regulation of juries, 3 Geo. II, c.25; J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press 1986), 379. 6 Douglas Hay, ‘The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century,’ in J.S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200– 1800 (Princeton, NJ: Princeton University Press 1998), 319–20; J.M. Beattie, ‘London Juries in the 1690s,’ in Cockburn and Green, eds., Twelve Good Men and True, 216–21; J.M. Beattie, Policing and Punishment in London, 1660– 1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press 2001), 264–9; John H. Langbein, ‘The English Criminal Trial Jury on the Eve of the French Revolution,’ in Antonio Padoa Schioppa, ed., The Trial Jury in England, France, Germany, 1700–1900 (Berlin: Duncker and Humblot 1987), 24–9. 7 David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press 1998), 92–3; An Act for consolidating and amending the Laws relative to Jurors and Juries, 6 Geo. IV, c.50; Times (London), 10 March 1825, 2. For jury selection procedures following the 1825 act, see James Kennedy, A Treatise on the Law and Practice of Juries (London: S. Sweet 1826). 8 An act for the regulation of juries, S.O. 1794, c.1, s.1. 9 An Act for the regulation of juries, S.O. 1794, c.1, s.8. In practice, however, exemptions existed for those affiliated with the legislature. For example, in 1811 John Beikie, the sheriff of the Home District, apologized for accidentally summoning for grand jury service a member of the assembly, the clerk of the assembly, and the sergeant-at-arms, as well as the doorkeeper for petit jury service. JHA 1811 in Eighth Report of the Bureau of Archives for the Province of Ontario, 1911 (Toronto: L.K. Cameron 1912), 471. An act of 1809 stipulated that no Menonists or Tunkers were qualified to serve on juries in criminal cases. An Act for the relief of Menonists and Tunkers, in certain cases, S.O. 1809, c.6, s.3. Quakers were also excluded in 1828. See An Act to provide for the admission of evidence of Quakers, Menonists, Tunkers, and Moravians, in criminal cases, S.O. 1828, c.1, s.3. Members of fire companies in Upper Canada, as in Nova Scotia, lobbied for an exemption, which the assembly provided in 1841. An Act to repeal a certain Act therein mentioned, and to exempt the Members of Companies of Firemen, lawfully

Notes to page 46

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11

12

13

14 15

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established, from serving as Jurors and in the Militia, except in certain cases, S.O. 1841, c.43; JLA 1841, 323, 401, 447–8, 641. Other individuals could be excluded just before trial. For example, in at least once instance a court refused to select a juror because he was drunk. OA, RG22–2685–0-1: 1849 Spring Assizes, Kent County (1 May 1849), Kent County Sheriff and Clerk of the Peace Jurors’ Book, 1846–1857. An act for the regulation of juries, S.O. 1794, c.1, ss.5–6. If the sheriff was a party to the suit or related to one of the litigants, the court could direct the coroner to select a panel of jurors. For example, in Fraser v. Dickson, an 1848 case, the defendant was the sheriff of the district of Bathurst, so the coroner selected the jury panel. Fraser v. Dickson (1848), 5 U.C.Q.B. 231. Also see Payne v. McLean (1826), Taylor’s 325. The 1794 Upper Canada jury act contemplated that jurors could be ‘challenged and set aside,’ but did not detail the law governing such challenges. An act for the regulation of juries, S.O. 1794, c.1, s.6. The 1850 jury act dictated that defendants had a right to twenty peremptory challenges in felony and murder cases. An Act for the consolidation and amendment of the Laws relative to Jurors, Juries and Inquests in that part of this Province called Upper Canada, S.O. 1850, c.55, s.58. Upper Canada also allowed the Crown to stand-aside jurors. See Reg. v. Benjamin et al. (1854), 4 U.C.C.P. 179; Reg. v. Fellowes et al. (1859), 19 U.C.Q.B. 48; R. Blake Brown, ‘Challenges for Cause, Stand-Asides, and Peremptory Challenges in the Nineteenth Century,’ Osgoode Hall Law Journal 38 (2000), 479–93. The sheriff, for instance, was liable to a fine not exceeding ten pounds if he intentionally summoned a juror who had served within the previous year. The sheriff was to keep a book with the names of those who had been summoned and served. If asked by the juror, the sheriff had to provide a certificate as proof of jury service. Sheriffs could not take money to excuse a person from jury service. Also, if a sheriff summoned someone whose name did not appear on the jury panel he could be fined up to three pounds. An act for the regulation of juries, S.O. 1794, c.1, ss.2–4. An Act for the better regulation of Special Juries, S.O. 1808, c.13; An Act for the regulation of Special Juries, S.O. 1800, c.2. Proceedings of the Legislative Council of Upper Canada on the bill sent up from the House of Assembly, entitled, An Act to amend the Jury Laws of this Province (Toronto: R. Stanton 1836), 13. An Act for the better regulation of Special Juries, S.O. 1808, c.13. ‘Provincial Parliament,’ St Thomas Liberal, 13 December 1832, 1; Proceedings of the Legislative Council of Upper Canada on the Bill … An Act to amend the Jury Laws of this Province, 5–6; JHA 1840, vol. 1, App., 2–3; Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legisla-

250

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17 18

19 20

21 22 23 24

25

Notes to pages 47–9 ture, 1791–1899 (Toronto: University of Toronto Press and Osgoode Society 1986), 295; David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 (Toronto: University of Toronto Press and Osgoode Society 2002), 53; J.H. Aitchison, ‘The Development of Local Government in Upper Canada, 1783–1850’ (Phd diss., University of Toronto 1953), 131. H. Pearson Gundy, ‘Literary Publishing,’ in Carl F. Klink, ed., Literary History of Canada: Canadian Literature in English (Toronto: University of Toronto Press 1965), 176. An Address to the Liege Men of Every Colony and Province in the World (Kingston: Herald Office 1822), 6. Sir John Hawles, The Canadian’s Right the same as the Englishmen’s. A Dialogue between a Barrister at law and a Juryman (York, Upper Canada: Charles Fothergill 1823), vii, viii. Fothergill’s motivation for publishing the tract may have stemmed from his decision to run for a seat in the Assembly against a brother of Solicitor General Henry John Boulton. On Fothergill, see Paul Romney, ‘Charles Fothergill,’ DCB, 7: 317–21. Quoted in R.J. Morgan and Robert Lochiel Fraser, ‘Sir William Campbell,’ DCB, 6: 116. F.H. Armstrong, ‘William Lyon Mackenzie, First Mayor of Toronto: A Study of a Critic in Power,’ Canadian Historical Review 48 (1967), 321–2; Frederick H. Armstrong and Ronald J. Stagg, ‘William Lyon Mackenzie,’ DCB, 9: 496–510; Paul Romney, ‘Rebel as Magistrate: William Lyon Mackenzie and His Enemies,’ in Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, vol. 5, Crime and Criminal Justice (Toronto: University of Toronto Press and Osgoode Society 1994), 324–52. ‘Toronto Quarter Sessions,’ Canadian Correspondent, 26 July 1834, 1. ‘Constitutional Questions,’ Toronto Globe, 25 November 1845, 2. ‘No Concession,’ Toronto Globe, 10 September 1856, 2. LAC, RG1, E3, vol. 45, 94–8: Upper Canada: executive council, State Submissions. Citizens voiced such complaints after 1848 as well. The grand jury at the assizes in Toronto in November 1856 complained that multiple courts meant that jurors frequently wasted time attending unnecessarily. At both the Recorder’s Court and the Quarter Sessions, grand and petit jurors were assembled ‘to do little more than to learn that nearly all the criminal cases which those courts were organized to take cognizance of, had been, after a tedious routine, disposed of at the Assizes.’ ‘Toronto Assizes,’ Toronto Globe, 10 November 1856, 2. JHA 1826–1827, 37. Also see Petition of Inhabitants of the District of Johnston, JHA 1806 in Eighth Report of the Bureau of Archives for the Province of Ontario, 1911 (Toronto: L.K. Cameron 1912), 65–6.

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26 JHA 1835, 155. Also see the petition from the County of Halton. JHA 1835, 164. 27 JHA 1835, 236. 28 Douglas McCalla, Planting the Province: The Economic History of Upper Canada, 1784–1870 (Toronto: University of Toronto Press 1993), 67. 29 See, for example, An Act to alter the times of sitting of the General Quarter Sessions in the Niagara District, S.O. 1830, c.8; An Act to appoint the time and place for holding the Court of General Quarter Sessions of the Peace in each of the several Districts of this Province, and to repeal the several Laws now in force for that purpose, S.O. 1837, c.11; An Act to appoint the time for holding the Court of General Quarter Sessions of the Peace for the Home District, and to repeal the Law now in force for that purpose, S.O. 1840, c.26. Jury duty was even more onerous when jurors felt mistreated. For example, in 1829 petitioners asked the assembly for redress for grievances sustained while acting as petit jurors at the Quarter Sessions of the Home District. The jury had left the jury box between noon and one o’clock and entered the jury room to consider its verdict. Justice Grant Powell sent a message to the jurors after they had been in deliberations for a quarter of an hour, telling the jurors that he would lock them up until three in the afternoon if they did not immediately return with a verdict. The jurors refused, and Powell followed through with his threat. When the jurors asked to use the washroom, an old pail was shoved into the room. A member of the jury, Edward Henderson, said that he had been a member of juries at the Court of King’s Bench in Westminster and at the Old Bailey, and he had never received such poor treatment. JHA 1829, App., 48. 30 G.P. de T. Glazebrook, A History of Transportation in Canada, vol. 1, Continental Strategy to 1867 (Toronto: McClelland and Stewart 1964), 127–30. 31 ‘Provincial Parliament,’ Perth Courier, 27 March 1835, 2. Also see ‘Mr. Perry’s Jury Bill,’ Brockville Gazette, 22 November 1832, 2. Sheriffs in England also tended to consider where potential jurors lived in selecting petit jury panels. Langbein, ‘The English Criminal Trial Jury on the Eve of the French Revolution,’ 26. 32 OA, RG22–2685–0-1: Kent County Sheriff and Clerk of the Peace Jurors’ Book, 1846–1857. 33 An act for the regulation of juries, S.O. 1794, c.1, s.7. Sheriffs could seize goods in payment of such fines. See, for example, J.K. Johnson, The Letters of Sir John A. Macdonald, 1836–1857, vol. 1 (Ottawa: Public Archives of Canada 1968), 419–20. 34 An act for the regulation of juries, S.O. 1794, c.1, s.9. 35 An Act for Regulating the Practice of the Court of King’s Bench, S.O. 1797, c.4, s.8; An Act to Repeal part of, and amend the Laws now in force respecting the

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37 38 39

40 41 42

43

44

Notes to pages 50–2 practice of His Majesty’s Court of King’s Bench in this Province, S.O. 1822, c.1, s.30. The act also required the person who requested the special jury to pay all of the expenses associated with striking the jury, unless the judge immediately after the trial certified that the case was a proper one to be tried by a special jury. An Act for the better regulation of Special Juries, S.O. 1808, c.13, ss.3, 5, 7–8. Perth Courier, 9 November 1847, 4. OA, RG22–2685–0-1: Kent County Sheriff and Clerk of the Peace Jurors’ Book, 1846–1857. LAC, R3944–0-4-E (former: MG24, I73), J.W. Dunbar Moodie, 1839–1863; LAC, RG5, C1, vol. 479, no. 914. Petitioners occasionally provided affidavits to prove their claims. An excuse letter by William Elliot was typical. The local sheriff summarized Elliot’s appeal in December 1850, noting that to avoid a three-pound fine Elliot had provided an affidavit indicating that he was sixty-three. LAC, RG5, C1, vol. 312, no. 2161. LAC, RG5, C1, vol. 325, no. 749; LAC, RG5, C1, vol. 334, no. 1305; ‘Toronto Mayor’s Court,’ Canadian Correspondent, 6 September 1834, 3. LAC, RG5, C1, vol. 426, no. 1536. LAC, RG5, C1, vol. 448, no. 1146; Johnson, The Letters of Sir John A. Macdonald, vol. 1, 331. While a member of the assembly, William Botsford Jarvis recalled a time when he was working as a sheriff and seventy-one out of seventy-two persons he summoned as jurors made applications for discharge from duty. ‘Mr. Perry’s Jury Bill,’ Brockville Gazette, 22 November 1832, 2. An Act to provide for the better internal Government of that part of this Province which formerly constituted the Province of Upper Canada, by the establishment of Local or Municipal Authorities therein, S.O. 1841, c.10. Ian Radforth, ‘Sydenham and Utilitarian Reform,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992), 81–5; J.H Aitchison, ‘The Municipal Corporations Act of 1849,’ Canadian Historical Review 30 (1949), 107–22; An Act for abolishing the Territorial Division of Upper-Canada into Districts, and for providing for temporary Unions of Counties for Judicial and other purposes, and for the future dissolutions of such Unions, as the increase of wealth and population may require.’ S.O. 1849, c.78. Also see C.F.J. Whebell, ‘The Upper Canada District Councils Act of 1841 and British Colonial Policy,’ Journal of Imperial and Commonwealth History 17, no. 2 (1989), 185–209; Engin F. Isin, ‘The Origins of Canadian Municipal Government,’ in James Lightbody, ed., Canadian Metropolitics: Governing Our Cities (Toronto: Copp

Notes to pages 52–5

45

46

47

48 49 50 51 52 53 54 55 56 57 58 59 60

61 62 63 64 65 66

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Clark 1995), 51–91; C.F.J. Whebell, ‘Robert Baldwin and Decentralization 1841–9,’ in F. H. Armstrong, ed., Aspects of Nineteenth-Century Ontario (Toronto: University of Toronto Press 1974), 36–64. Nancy Kay Parker, ‘Reaching a Verdict: The Changing Structure of Decision-Making in the Canadian Criminal Courts, 1867–1905’ (PhD diss., York University 1999), 242–3. Hereward Senior, ‘Ogle Robert Gowan,’ DCB, 10: 309–14; Hereward Senior, ‘Ogle Gowan: Founder of Canadian Orangeism,’ in Robert O’Driscoll and Lorna Reynolds, eds., The Untold Story: The Irish in Canada, vol. 2 (Toronto: Celtic Arts of Canada 1988), 623–5. An Act for Regulating the Practice of the Court of King’s Bench, S.O. 1797, c.4, s.8. Jury pay became an important issue in England later in the century. See David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press 1998), 94. JHA 1835, 72. JHA 1837–38, 15, 102–3, 151–2. JHA 1839, 13–4, 40, 99, 193; Perth Courier, 22 March 1839, 2. JHA 1839–40, 3, 7. JLA 1841, 202. JLA 1844–1845, 28. Debates of the Legislative Assembly of United Canada, vol. 4, part 1 (1844–45), 1222. Emphasis in original. Debates of the Legislative Assembly of United Canada, vol. 4, part 1 (1844–45), 1222–3. JLA 1847, 157. Colin Read, ‘John Wilson,’ DCB, 9: 843–4. Debates of the Legislative Assembly of United Canada, vol. 6 (1847), 953–4. Ibid., 954. Phillip A. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press 1985), 311; J.M.S. Careless, ‘Robert Baldwin,’ in J.M.S. Careless, ed., The PreConfederation Premiers: Ontario Government Leaders, 1841–1867 (Toronto: University of Toronto Press 1980), 132. JLA 1849, 56, 220, 226, 230. Debates of the Legislative Assembly of United Canada, vol. 8, part 1 (1849), 398. Ian MacPherson, ‘Sir William Buell Richards,’ DCB, 11: 730–1. Debates of the Legislative Assembly of United Canada, vol. 8, part 1 (1849), 399; Bruce W. Hodgins, ‘John Sandfield Macdonald,’ DCB, 10: 462–9. Debates of the Legislative Assembly of United Canada, vol. 8, part 1 (1849), 399. Ibid., 403; Larry Turner, ‘Billa Flint,’ DCB, 12: 321–3.

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Notes to pages 55–8

67 Debates of the Legislative Assembly of United Canada, vol. 8, part 1 (1849), 400; Henry J. Morgan, The Canadian Parliamentary Companion, First Year (Quebec: Desbarats and Derbishire 1862), 39. 68 Debates of the Legislative Assembly of United Canada, vol. 8, part 1 (1849), 401–2. 69 Ibid., 427–8. 70 Bill: an act to limit the number of petty jurors to be summoned to attend the several courts in Upper Canada, and to provide for the payment of them, CIHM, no.9_04119. 71 Lawyer William Notman claimed that jurors were ‘a class of persons very much to be pitied and who ought to be paid,’ and he believed that a ‘tax to pay jurors would cheerfully be paid by the people all over the country.’ The commissioner of Crown lands, James Hervey Price, a long-time proponent of causes to assist farmers, thought that the whole country should contribute to the payment of jurors as it received a benefit as a whole from their services. He claimed that the citizens of the Home District were almost unanimous in favor of the payment of jurors. ‘It would be popular in the country, because it was just and right,’ Price argued. John Wilson relayed that he had heard complaints for years about the lack of juror pay. He said that the bill was simply a form of local insurance: each person in the district, by paying a small sum, would ensure five shillings per day to whoever among them were called to serve as jurors. Debates of the Legislative Assembly of United Canada, vol. 8, part 3 (1849), 1854–6. Morgan, The Canadian Parliamentary Companion, First Year, 35; Lillian F. Gates, ‘James Hervey Price,’ DCB, 11: 712–4. 72 Debates of the Legislative Assembly of United Canada, vol. 8, part 3 (1849), 1854–6. 73 Ibid., 1855. Inspector General Francis Hincks also believed the proposed act would be criticized because it would ‘compel the district councils to raise money whether they liked it or not.’ He was, rather, in favour of leaving the councils alone in managing their affairs. Ibid.,1856. 74 JLC 1849, 71, 78. 3: ‘The Bean Box’: Reformers and the Politicization of the Jury System in Nova Scotia 1 In 1838 the council was divided in two: the executive council (which retained executive powers) and a new legislative council that sat as a legislative upper house. 2 Novascotian, 12 February 1835.

Notes to pages 58–62 3 4 5 6 7 8 9

10

11 12 13

14 15 16

17 18 19 20

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‘Grand Jury Presentment,’ Novascotian, 27 December 1837. David A. Sutherland, ‘Thomas Forrester,’ DCB, 7: 307–9. JHA 1837, 69. JHA, 1838, 241, 252. A copy of Howe’s bill may be found at NSARM, RG5, series U, vol. 14, no. 19 (1838). J. Murray Beck, ‘Alexander Stewart,’ DCB, 9: 746–8. Novascotian, 8 March 1838; Jane Hollingworth Nokes, ‘William Lawson,’ DCB, 7: 491–3. For similar critiques of the idea see Novascotian, 5 April 1838. An Act for the Regulation of Juries, S.N.S. 1838, c.6, ss. 4–9. The legislation also increased the property qualifications for trial jurors to a freehold estate with a yearly value of forty shillings (rather than twenty) or a personal estate of 100 pounds (rather than ten). An Act for the Regulation of Juries, S.N.S. 1838, c.6, s.2. The requirement for a forty shilling freehold brought the petit jury qualification in line with the qualification for the provincial franchise, which had been forty shillings since 1759. John Garner, The Franchise and Politics in British North America (Toronto: University of Toronto Press 1969), 16; A History of the Vote in Canada, 2nd ed. (Ottawa: Office of the Chief Electoral Officer of Canada 2007), 9–10. For trial jurors, the practice remained the same: the sheriffs returned the names of persons qualified to serve to the prothonotaries or clerks, who then created ballots that were used to select the jury panels. ‘Supreme Court,’ Novascotian, 23 October 1839. ‘Supreme Court,’ Novascotian, 23 January 1840. Also see ‘Trial of Clarke and Elexon,’ Acadian Recorder, 25 January 1840. NSARM, RG1, vol. 214.5D: (5 Nov 1839) Executive Council Minutes. The original of this letter, dated 25 October 1839, is at NSARM, RG1, vol. 245, no. 105. JHA 1840, 643. Also see Acadian Recorder, 4 January 1840. JHA 1840, 646. For a discussion of communication difficulties within the Nova Scotia justice system, see William H. Laurence, ‘Process and Particulars: The Informational Needs and Sources of a Nineteenth-Century Nova Scotian Sheriff,’ Épilogue 12, no. 1 (1997), 1–22. JHA 1840, App. 87, 226. JHA 1840, 645; An Act to continue and amend the Act for the Regulation of Juries, and to render valid the proceedings of certain Grand Juries, S.N.S. 1840, c.8. ‘Provincial Parliament,’ Acadian Recorder, 11 January 1840. Also see ‘House of Assembly,’ Acadian Recorder, 4 January 1840. An Act to continue and amend the Act for the Regulation of Juries, and to render valid the proceedings of certain Grand Juries, S.N.S. 1840, c.8.

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21 Lieutenant Governor Sir Colin Campbell to Lord John Russell (27 July 1840), LAC, RG7, G7, vol. 11: Governor General’s Office, Despatches from Lieutenant Governors to Governor, Lieut. Governor Nova Scotia to Governor, 1820–1827, 1836–1877. 22 On English magistrates see Norma Landau, The Justices of the Peace, 1679– 1760 (Berkeley: University of California 1984); J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press 1986), 59–67. 23 Ronald A. MacDonald, ‘The Squires of Antigonish,’ Nova Scotia Historical Review 10, no. 1 (1990), 66; Sandra E. Oxner, ‘The Evolution of the Lower Court of Nova Scotia,’ in Peter Waite, Sandra Oxner, and Thomas Barnes, eds., Law in a Colonial Society: The Nova Scotia Experience (Toronto: Carswell 1984), 68; J. Murray Beck, The Government of Nova Scotia (Toronto: University of Toronto Press 1957), 129; W.S. MacNutt, The Atlantic Provinces: The Emergence of Colonial Society, 1712–1857 (Toronto: McClelland and Stewart 1965), 186–7. 24 See, for example, Jim Phillips, ‘“Securing Obedience to Necessary Laws”: The Criminal Law in Eighteenth Century Nova Scotia,’ Nova Scotia Historical Review 12, no. 2 (1992), 87–124; Jim Phillips, ‘Poverty, Unemployment, and the Administration of the Criminal Laws: Vagrancy Laws in Halifax, 1864–1890,’ in Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law, vol. 3, Nova Scotia (Toronto: University of Toronto Press and Osgoode Society 1990), 128–62; Jim Phillips, ‘Women, Crime, and Criminal Justice in Early Halifax, 1750–1800,’ in Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, vol. 5, Crime and Criminal Justice (Toronto: University of Toronto Press and Osgoode Society 1994), 174–206; Judith Fingard, The Dark Side of Life in Victorian Halifax (Potters Lake, NS: Pottersfield Press 1989). 25 Michael S. Cross, ‘“The Laws Are Like Cobwebs”: Popular Resistance to Authority in Mid-Nineteenth Century British North America,’ in Waite, Oxner, and Barnes, eds., Law in a Colonial Society: The Nova Scotia Experience, 103–23; Susan Lewthwaite, ‘Violence, Law, and Community in Rural Upper Canada,’ in Phillips, Loo, and Lewthwaite, eds., Essays in the History of Canadian Law, vol. 5, 353–86. 26 ‘House of Assembly,’ Acadian Recorder, 4 January 1840; J. Murray Beck, ‘James Boyle Uniacke,’ DCB, 8: 903–6. 27 ‘Legislative Summary,’ Novascotian, 16 January 1840; David A. Sutherland, ‘Thomas Forrester,’ DCB, 7: 307–9. Also see ‘Provincial Parliament,’ Acadian Recorder, 11 January 1840. 28 Graeme Wynn, ‘Ideology, Society, and State in the Maritime Colonies of

Notes to pages 64–6

29

30

31 32 33

34 35

36 37 38

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British North America, 1840–1860,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992), 313. T.W. Acheson, ‘The 1840s: Decade of Tribulation,’ in Phillip A. Buckner and John G. Reid, ed., The Atlantic Region to Confederation: A History (Toronto: University of Toronto Press 1994), 314–16. Increasing ethno-religious tension stemming from greater Irish immigration in the 1840s was not, of course, limited to Nova Scotia. See, for example, Scott W. See, Riots in New Brunswick: Orange Nativism and Social Violence in the 1840s (Toronto: University of Toronto Press 1993). Charles Bruce Fergusson, ‘Laurence (Lawrence) O’Connor Doyle,’ DCB, 9: 224–7; Terrence M. Punch, Some Sons of Erin in Nova Scotia (Halifax: Petheric Press 1980), 39–46; Kildare Dobbs, ‘Newfoundland and the Maritimes: An Overview,’ in Robert O’Driscoll and Lorna Reynolds, eds., The Untold Story: The Irish in Canada, vol. 1 (Toronto: Celtic Arts of Canada 1988), 191–3; Terrence M. Punch, ‘“Gentle as the Snow on a Rooftop”: The Irish in Nova Scotia to 1830,’ in O’Driscoll and Reynolds, eds., The Untold Story: The Irish in Canada, vol. 1, 226–7; Herbert Leslie Stewart, The Irish in Nova Scotia: Annals of the Charitable Irish Society of Halifax, 1786–1836 (Kentville, NS: Kentville Publishing Company 1949), 131–8. Terrence M. Punch, Irish Halifax: The Immigrant Generation, 1815–1859 (Halifax: International Education Centre, Saint Mary’s University 1981), 38. Ibid., 39–40. Oliver MacDonagh, The Hereditary Bondsman: Daniel O’Connell, 1775–1829 (London: Weidenfeld and Nicolson 1988); K. Theodore Hoppen, Ireland Since 1800: Conflict and Conformity (London: Longman 1989), 9–32. Fergusson, ‘Laurence (Lawrence) O’Connor Doyle’; Punch, Some Sons of Erin in Nova Scotia, 39–46. D.A. Sutherland, ‘James William Johnston,’ DCB, 10: 383–8; J. Murray Beck, Politics of Nova Scotia, vol. 1: Nicholson-Fielding, 1710–1896 (Tantallon, NS: Four East 1985), 123. ‘Sheriffs,’ Novascotian, 21 January 1841. Emphasis in original. ‘County Affairs’ Novascotian, 15 December 1842. Emphasis in original. Gertrude E.N. Tratt, A Survey and Listing of Nova Scotia Newspapers, 1752– 1957, Occasional Paper no. 21 (Halifax: Dalhousie University Libraries and Dalhousie University School of Library Service 1970); Travis Decook, ‘The Spread of Newspapers in British North America,’ in Patricia Lockhart Fleming, Gilles Gallichan, and Yvan Lamonde, eds., History of the Book in Canada, vol. 1: Beginnings to 1840 (Toronto: University of Toronto Press 2004), 229–33; D.C. Harvey, ‘Newspapers in Nova Scotia, 1840–1867,’ Ca-

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nadian Historical Review 26 (1945), 279–301; J.S. Martell, ‘The Press of the Maritime Provinces in the 1830s,’ Canadian Historical Review 19 (1938), 24– 49. Nova Scotia also witnessed a rapid growth in the number and size of voluntary associations at mid century. David Sutherland, ‘Voluntary Societies and the Process of Middle-class Formation in Early-Victorian Halifax, Nova Scotia,’ Journal of the Canadian Historical Association 5 (1994), 237–63. 39 Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press 2000), 119. 40 H. Pearson Gundy, ‘Liberty and Licence of the Press in Upper Canada,’ in W.H. Heick and Roger Graham, eds., His Own Man: Essays in honour of Arthur Reginald Marsden Lower (Montreal: McGill-Queen’s University Press 1974), 71–92; Barry Wright, ‘Sedition in Upper Canada: Contested Legality,’ Labour / Le Travail 29 (1992), 7–57; John McLaren, ‘The Judicial Office … Bowing to no Power but the Supremacy of the Law: Judges and the Rule of Law in Colonial Australia and Canada, 1788–1840,’ Australian Journal of Legal History 7 (2003), 177–92. Reform presses were also physically attacked. Carol Wilton, ‘“Lawless Law”: Conservative Political Violence in Upper Canada, 1818–41,’ Law and History Review 13 (1995), 111–36; Sarah Brouillette, ‘Attacks on Newspaper Printers and Their Shops,’ in Fleming, Gallichan, and Lamonde, eds., History of the Book in Canada, vol. 1, 238–9. For an overview of the battle over press freedom in British North America in the 1830s see Gilles Gallichan, ‘Political Censorship,’ in Fleming, Gallichan, and Lamonde, eds., History of the Book in Canada, vol. 1, 320–31. On the liberty of the press and libel in Prince Edward Island, see J.M. Bumsted, ‘Liberty of the Press in Prince Edward Island,’ in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, vol. 1, Law, Politics, and Security Measures, 1608–1837 (Toronto: University of Toronto Press and Osgoode Society 1996), 522–46. On similar efforts to use the law to silence government critics in Australia in the nineteenth century see Brendan Edgeworth, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales, 1824–1831,’ Australian Journal of Law and Society 6 (1990), 50– 82. For an overview of developments in the United States see John Nerone, Violence Against the Press: Policing the Public Sphere in U.S. History (Oxford: Oxford University Press 1994). 41 Philip Girard, ‘“I will not pin my faith to his sleeve”: Beamish Murdoch, Joseph Howe, and Responsible Government Revisited,’ Royal Nova Scotia Historical Society Journal 4 (2001), 48–69; Beck, Politics of Nova Scotia, 117; J. Murray Beck, ‘The Party System in Nova Scotia,’ Canadian Journal of Economics and Political Science 20 (1954), 514–15. Also see Janet Ajzenstat, ‘The

Notes to pages 67–9

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48 49

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Constitutionalism of Etienne Parent and Joseph Howe,’ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791–1991 (Ottawa: Canadian Study of Parliament Group 1992), 168–70; Phillip A. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press 1985), 296; Greg Marquis, ‘In Defence of Liberty: 17th-Century England and 19th-Century Maritime Political Culture,’ University of New Brunswick Law Journal 42 (1993), 69–94. The traditional distrust of political parties also had to be overcome in the United States. See Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley: University of California Press 1969). ‘Misrepresentations,’ Halifax Morning Post, 3 September 1844, 3. Emphasis in original. Also see ‘Party Policy,’ Halifax Morning Post, 21 September 1844, 2; ‘Politics of Nova Scotia,’ Halifax Morning Post, 5 October 1844, 3; ‘Provincial Politics, Past, Present and Future,’ Halifax Morning Post, 5 December 1844, 3; ‘Party Combinations,’ Halifax Morning Post, 11 January 1845, 2; ‘Politics of Nova Scotia,’ Halifax Times, 18 June 1844, 5; Halifax Times, 10 September 1844, 3; ‘Party Policy,’ Halifax Times, 17 September 1844, 6. See, for example, ‘To the Patrons of the Novascotian and Morning Chronicle,’ Halifax Morning Chronicle, 7 May 1844, 2; ‘The No-Party System – How it Works,’ Halifax Morning Chronicle, 3 September 1844, 2; ‘The Conservatives and the Government,’ Halifax Morning Chronicle, 19 September 1844, 2. ‘The Press,’ Yarmouth Herald, 1 August 1844, 3. Also see Halifax Morning Chronicle, 13 August 1844, 2–3; ‘The Governor’s Printer,’ Halifax Morning Herald, 5 September 1844, 2–3. Lyndsay M. Campbell, ‘License to Publish: Joseph Howe’s Contribution to Libel Law in Nova Scotia,’ Dalhousie Law Journal 29 (2006), 92–4. This description of events leading to the trial is drawn largely from J. Murray Beck, Joseph Howe, vol. 1: Conservative Reformer, 1804–1848 (Kingston and Montreal: McGill-Queen’s University Press 1982), 129–35; J.M. Beck, ‘“A Fool for a Client”: The Trial of Joseph Howe,’ in P.A. Buckner and David Frank, eds., The Acadiensis Reader, vol. 1: Atlantic Canada Before Confederation (Fredericton, NB: Acadiensis Press 1985), 227–44. Barry Cahill, ‘R. v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates,’ in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, vol. 1, Law, Politics, and Security Measures, 1608–1837 (Toronto: University of Toronto Press and Osgoode Society 1996), 548. Cahill, ‘R. v. Howe (1835) for Seditious Libel,’ 556. David Alexander Sutherland, ‘The Merchants of Halifax, 1815–1850: A

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54

55

56

57

Notes to pages 69–70 Commercial Class in Pursuit of Metropolitan Status,’ (PhD Dissertation, University of Toronto 1975), 264n77. Beck, Joseph Howe, vol. 1, 129–57. William Annand, ed., The Speeches and Public Letters of the Hon. Joseph Howe, vol. 1 (Halifax: A.W. Mackinlay 1858), 66, 67. Beck, Joseph Howe, vol.1, 140–1. In his 1858 reporting of Howe’s case, publisher and reformer William Annand told of the celebrations and how the crowd left the courtroom to ‘teach their children the names of the TWELVE MEN who had established the FREEDOM OF THE PRESS.’ Annand, The Speeches and Public Letters of the Hon. Joseph Howe, 81. For a sense of the positive perception of the jury in the Howe trial a century later, see Barry Cahill, ‘A Forerunner of J.B. McLachlan? – Sedition, Libel and Manipulating the Myth of Howe,’ Collections of the Royal Nova Scotia Historical Society 44 (1996), 189–99. For an earlier example of how seditious libel was employed to chill public criticism see Barry Cahill, ‘Sedition in Nova Scotia: R. v. Wilkie (1820) and the Incontestable Illegality of Seditious Libel before R. v. Howe (1835),’ Dalhousie Law Journal 17 (1994), 458–97. R. Blake Brown, ‘“A Delusion, A Mockery, and a Snare”: Challenges to the Array and Jury Selection in England and Ireland, 1800–1850,’ Canadian Journal of History 39 (2004), 1–26; John F. McEldowney, ‘The Case of The Queen v. McKenna (1869) and Jury Packing in Ireland,’ Irish Jurist 12 (1977), 339–53; J.F. McEldowney, ‘Some Aspects of Law and Policy in the Administration of Criminal Justice in Nineteenth-Century Ireland,’ in J.F. McEldowney and Paul O’Higgins, eds., The Common Law Tradition: Essays in Irish Legal History (Dublin: Irish Academic Press 1990), 136–53; John D. Jackson, Katie Quinn, and Tom O’Malley, ‘The Jury System in Contemporary Ireland: In the Shadow of a Troubled Past,’ in Neil Vidmar, ed., World Jury Systems (Oxford: Oxford University Press 2000), 284–8; Neal Garnham, The Courts, Crime and the Criminal Law in Ireland, 1692–1760 (Dublin: Irish Academic Press 1996), 133–45. David Johnson, ‘Trial by Jury in Ireland, 1860–1914,’ Journal of Legal History 17 (1996), 270–93; John Saville, 1848: The British State and the Chartist Movement (Cambridge: Cambridge University Press 1987), 47–52, 186–92. For the arguments concerning the challenge to the jury at the trial see Shaw’s Authenticated Report of the Irish State Trials (Dublin: Henry Shaw 1844). Also see Charles Gavin Duffy, Young Ireland: A Fragment of Irish History, 1840–1850 (New York: D. Appleton and Company 1881), 389–414. O’Connell v. Reg., [1844] 8 All E.R. Reports, 1061 at 1071–1073. On the politics surrounding the case see Robert Carl Shipkey, Robert Peel’s Irish Policy: 1812–1846 (New York: Garland 1987), 346–54.

Notes to pages 71–2

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58 O’Connell v. Reg., 1135. 59 Nova Scotia newspapers representing all political perspectives covered the case. See, for example, ‘The Irish State Trials,’ Halifax Morning Chronicle, 3 October 1844, 2; ‘The Irish State Trials,’ Halifax Times, 13 August 1844; ‘The Irish State Trials,’ Yarmouth Herald, 10 October 1844, 1; ‘The State Trials,’ Spirit of the Times, 28 June 1844, 4. 60 J. Murray Beck, ‘Richard Nugent,’ DCB, 8: 656–8. For discussions of the litigation see ‘Libel Case – Sawers vs. Nugent,’ Halifax Morning Post, 25 July 1843, 2; ‘Correspondence,’ Halifax Morning Post, 27 July 1843, 2; ‘Libel,’ Halifax Times, 17 October 1843, 5; ‘Supreme Court,’ Morning Herald, 21 July 1843, 2; ‘Libel Case – Sawers vs. Nugent,’ Yarmouth Herald, 4 August 1843, 3. The special jury panels for Nugent’s trials may be found at NSARM, RG39, series C, Halifax County Supreme Court: Sawers vs. Nugent (1843). 61 Novascotian, 13 May 1844. Special juries also came under attack in England as tools to suppress the critical press. James Oldham, ‘Special Juries in England: Nineteenth Century Usage and Reform,’ Journal of Legal History 8 (1987), 153–6. Jeremy Bentham, for example, attacked special juries as a tool for governments to repress freedom of the press in a tract written in 1808 but not published until 1821, because of its heated rhetoric. Jeremy Bentham, The Elements of the Art of Packing, as Applied to Special Juries, Particularly in Cases of Libel Law (London: Effingham Wilson 1821). 62 Novascotian, 2 September 1844. 63 ‘Great Public Meeting!!’ Novascotian, 10 February 1845. 64 ‘Letter from Mr Delaney,’ Halifax Morning Post, 15 August 1844, 2; ‘James W. Delaney,’ Halifax Morning Chronicle, 17 August 1844, 2–3. 65 Novascotian, 2 September 1844. 66 Beck, Joseph Howe, vol. 1, 275–6. 67 Novascotian, 2 September 1844. Emphasis in original. For references to this bean box analogy see, for example, Halifax Morning Chronicle, 17 August 1844, 3; ‘McCoubry vs. Annand,’ Halifax Morning Chronicle, 5 September 1844, 3. 68 Delaney asserted that ‘a more scandalous, unprincipled attempt to slander an absent man was never perpetuated.’ ‘Letter from Mr. Delaney,’ Halifax Morning Post, 15 August 1844, 2. Also see ‘Cumberland Jury Box,’ Halifax Morning Post, 20 August 1844, 2; ‘Correspondence,’ Halifax Morning Post, 10 September 1844, 3; ‘Correspondence,’ Halifax Morning Post, 28 September 1844, 2; ‘James W. Delaney,’ Halifax Morning Chronicle, 17 August 1844, 2. 69 ‘McCoubry vs. Annand,’ Halifax Morning Chronicle, 10 September 1844, 2; ‘McCoubry vs. Annand,’ Halifax Morning Chronicle, 12 September 1844, 2; ‘McCoubry vs. Annand,’ Novascotian, 16 September 1844.

262

Notes to pages 73–6

70 ‘Provincial,’ Yarmouth Herald, 19 August 1844, 1. 71 Ibid. Also see ‘The Press and its Assailants,’ Yarmouth Herald, 26 August 1844, 3; ‘Close of the Session,’ Halifax Morning Chronicle, 30 July 1844, 3. 72 ‘McCourbry vs. Annand,’ Halifax Morning Chronicle, 10 September 1844, 2. 73 ‘The Press,’ Halifax Morning Chronicle, 14 September 1844, 2. Also see ‘Jurisprudence,’ Halifax Morning Chronicle, 12 December 1844, 3. 74 ‘McCoubry vs. Annand,’ Novascotian, 16 September 1844. 75 The reformers’ appeals that juries be inclusive demonstrates Greg Marquis’ claim that the right of British North American subjects to ‘demand their legal and political rights was prominent in the language of local political struggles.’ Greg Marquis, ‘Doing Justice to “British Justice”: Law, Ideology and Canadian Historiography,’ in W.W. Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 52. 76 ‘The Grand Jury System,’ Novascotian, 20 January 1845. 77 ‘The Jury System,’ Novascotian, 3 February 1845. 78 ‘The Jury System,’ Novascotian, 3 February 1845; ‘The Jury System,’ Halifax Morning Chronicle, 30 January 1844, 2. 79 ‘The Courts,’ Novascotian, 10 February 1845. Also see ‘The Jury System – Grand and Special,’ Halifax Register, 14 January 1845, 2; ‘The Jury System,’ Halifax Register, 21 January 1845, 2; ‘The Halifax Courts,’ Halifax Register, 21 January 1845, 7; ‘The Courts,’ Halifax Register, 28 January 1845, 2. 80 David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press 1991), 185–6. 81 ‘Public Meeting,’ Novascotian, 3 February 1845; ‘Public Meeting,’ Halifax Morning Chronicle, 6 February 1845, 4. 82 ‘Review of the Public Meeting held on Thursday, 6th Instant,’ Halifax Morning Post, 8 February 1845, 2; ‘Review of the Public Meeting on Thursday last, the 6th Inst.,’ Halifax Morning Post, 11 February 1845, 3. 83 ‘Grand Jury Agitation,’ Halifax Times, 4 February 1845, 6. 84 Shirley B. Elliott, ed., The Legislative Assembly of Nova Scotia, 1758–1983: A Biographical Directory (Halifax: Province of Nova Scotia 1984), 221. 85 ‘Great Public Meeting!!’ Novascotian, 10 February 1845; ‘Great Public Meeting!!’ Halifax Morning Chronicle, 10 February 1845, 1–2. 86 ‘Great Public Meeting!!’ Novascotian, 10 February 1845; ‘Great Public Meeting!!’ Halifax Morning Chronicle, 10 February 1845, 1–2. 87 ‘Great Public Meeting!!’ Novascotian, 10 February 1845; ‘Great Public Meeting!!’ Halifax Morning Chronicle, 10 February 1845, 1–2. 88 J. Murray Beck, ‘George Renny Young,’ DCB, 8: 955–9.

Notes to pages 76–81

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89 ‘Great Public Meeting!!’ Novascotian, 10 February 1845; ‘Great Public Meeting!!’ Halifax Morning Chronicle, 10 February 1845, 1–2. 90 ‘Great Public Meeting!!’ Novascotian, 10 February 1845; ‘Great Public Meeting!!’ Halifax Morning Chronicle, 10 February 1845, 1–2. 91 NSARM, RG5, series P, vol. 9, no. 18 (17 February 1845); JHA 1845, 231. 92 JHA 1845, 241. 93 This theory is substantiated by tory Andrew Mitchell Uniacke’s appearance at the meeting at Mason’s Hall. He substantiated the claim of reformers when he expressed his belief that the Irish were ‘not fairly represented in Grand and Special Juries,’ and that ‘their claims ought not, and could not be overlooked.’ ‘Great Public Meeting!!’ Novascotian, 10 February 1845; ‘Great Public Meeting!!’ Halifax Morning Chronicle, 10 February 1845, 1–2. The Acadian Recorder mocked Uniacke’s appearance at the meeting, saying that he believed the issue was ‘a popular one with those to whose opinions Mr U. stands opposed.’ He thus ‘comes forth with his lures, and throwing his sprats, hopes they may catch mackerel for his use at the next Election.’ Acadian Recorder, 15 February 1845. 94 ‘Legislative Summary,’ Novascotian, 3 March 1845. 95 An Act to amend the Act for the regulation of Juries, S.N.S. 1845, c.1. 96 A copy of the 1845 Halifax jury list may be found in NSARM, RG34–312, series G, vol. 2: Halifax Sessions, List of Grand Jurors, 1845. 97 ‘The Jury System,’ Novascotian, 26 January 1846. 98 David A. Sutherland, ‘Race Relations in Halifax, Nova Scotia, During the Mid-Victorian Quest for Reform,’ Journal of the Canadian Historical Association n.s. 7 (1996), 45. Also see Halifax Sun, 24 March 1845; Halifax Morning Chronicle, 7 June 1845; ‘The Day of Trial,’ Novascotian, 26 April 1847; J.F.W. Johnston, Notes on North America, Agricultural, Economical, and Social, vol. 1 (Edinburgh: Blackwood 1851), 7. 99 ‘The Jury System,’ Novascotian, 26 January 1846. 100 An Act to continue and amend the Acts for the Regulation of Juries, S.N.S. 1846, c.37. 101 Allan Greer, ‘Historical Roots of Canadian Democracy,’ Journal of Canadian Studies 34 (1999), 7. 4: Reformers, Rebellion, and the Jury System of Upper Canada 1 David Murray, Colonial Justice: Justice: Morality, and Crime in the Niagara District, 1791–1849 (Toronto: University of Toronto and Osgoode Society 2002), 42–5. 2 Ibid., 44.

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Notes to pages 81–3

3 ‘Second Report on the Administration of Justice,’ JHA 1836, vol. 1, App., no. 135, 9. 4 JHA 1840, vol. 1, App., 2. For an example of the value of the position, see Charlotte Gray’s description of John Dunbar Moodie’s glee on hearing of his appointment as a sheriff in 1839. According to Gray, Moodie received more than $1,000 per year from fees, the proceeds from the sale of impounded property, and court-imposed fines. Charlotte Gray, Sisters in the Wilderness: The Lives of Susanna Moodie and Catherine Parr Traill (Toronto: Viking 1999), 147, 156–8. 5 JHA 1811, in Eighth Report of the Bureau of Archives for the Province of Ontario, 1911 (Toronto: L.K. Cameron 1912), 464, 466; JHA 1812, in Ninth Report of the Bureau of Archives for the Province of Ontario, 1912 (Toronto: L.K. Cameron 1913), 14, 18; Robert Lochiel Fraser, ‘Benajah Mallory,’ DCB, 8: 606–10. 6 JHA 1812, in Ninth Report of the Bureau of Archives for the Province of Ontario, 77; Elwood H. Jones, ‘Joseph Willcocks,’ DCB, 5: 854–9. 7 Gerald M. Craig, Upper Canada: The Formative Years, 1784–1841 (Toronto: McClelland and Stewart 1963), 188. And see J.K. Johnson, Becoming Prominent: Regional Leadership in Upper Canada, 1791–1841 (Montreal: McGillQueen’s University Press 1989), 137. 8 Craig, Upper Canada: The Formative Years, 193–4; G.H. Patterson, ‘Barnabas Bidwell,’ DCB, 6: 54–9; G.M. Craig, ‘John Rolph,’ DCB, 9: 683–90; Robert L. Fraser, ‘William Warren Baldwin,’ DCB, 7: 35–44. 9 Carol Wilton, ‘“Lawless Law”: Conservative Political Violence in Upper Canada, 1818–41,’ Law and History Review 13 (1995), 116. Also see Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press 2000), 44; Carol Wilton, ‘British to the Core: Responsible Government in Canada West,’ in Carol Wilton, ed., Change and Continuity: A Reader on Pre-Confederation Canada (Toronto: McGraw-Hill Ryerson 1992), 289–97. 10 S.F. Wise, ‘The Reform Tradition in Upper Canada,’ in A.B. McKillop and Paul Romney, eds., God’s Peculiar Peoples: Essays on Political Culture in Nineteenth-Century Canada (Ottawa: Carleton University Press 1993), 176–9. 11 Robert L. Fraser, ‘“All the privileges which Englishmen possess”: Order, Rights, and Constitutionalism in Upper Canada,’ in Robert L. Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of National Biography (Toronto: University of Toronto Press and the Osgoode Society, 1992), xxiv–xxv; Craig, Upper Canada: The Formative Years, 205–6. 12 JHA 1829, App., 50. 13 Allan Greer, ‘Historical Roots of Canadian Democracy,’ Journal of Canadian Studies 34 (1999), 15. 14 Craig, Upper Canada: The Formative Years, 222.

Notes to pages 83–4

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15 Correspondent and Advocate, 2 February 1835, 1. Also see Kingston Chronicle and Gazette, 10 January 1835, 2. And see Colin Read and Ronald J. Stagg, eds., The Rebellion of 1837 in Upper Canada: A Collection of Documents (Ottawa: Carleton University Press 1988), 59, 97. 16 See Margaret Fairley, ed., The Selected Writings of William Lyon Mackenzie, 1824–1837 (Toronto: Oxford University Press 1960), 180, 205, 347; ‘Toronto Quarter Sessions,’ Canadian Correspondent, 26 July 1834, 2. 17 ‘Meeting of Parliament!’ Toronto Globe, 26 May 1847, 1. Also see ‘The Reform Party of Canada!’ Toronto Globe, 3 July 1849, 3. 18 This explanation contradicts the work of Paul Romney, who argues that the motivation for jury reform grew out of the complaints made by small agrarian landholders that local elites packed juries in civil cases when they sued to collect debts for credit granted to the small landholders. Paul Romney, ‘From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture,’ Law and History Review 7 (1989), 131. The desire to protect freedom of the press also led to efforts to reform libel law in Upper Canada. See H. Pearson Gundy, ‘Liberty and Licence of the Press in Upper Canada,’ in W.H. Heick and Roger Graham, eds., His Own Man: Essays in Honour of Arthur Reginald Marsden Lower (Montreal: McGill-Queen’s University Press 1974), 85–6. 19 McNairn, The Capacity to Judge, 107, 329–40. On the growing number of newspapers in Upper Canada, see Travis Decook, ‘The Spread of Newspapers in British North America,’ in Patricia Lockhart Fleming, Gilles Gallichan, and Yvan Lamonde, eds., History of the Book in Canada, vol. 1, Beginnings to 1840 (Toronto: University of Toronto Press 2004), 229–33. 20 Barry Wright, ‘The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19,’ in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, vol. 1, Law, Politics, and Security Measures, 1608–1837 (Toronto: University of Toronto Press and Osgoode Society 1996), 487–504; S.F. Wise, ‘Robert Fleming Gourlay,’ DCB, 9: 330–6; Address to the Jury, at Kingston Assizes in the Case of The King v. Robert Gourlay for Libel with a Report of the Trial (Kingston: Gazette Office 1818). 21 Paul Romney, ‘Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins,’ in Greenwood and Wright, ed., Canadian State Trials, vol. 1, 505–21; John Ward, ‘Francis Collins: An Irishman’s Contribution to the Freedom of the Press in Canada,’ in Robert O’Driscoll and Lorna Reynolds, eds., The Untold Story: The Irish in Canada, vol. 2 (Toronto: Celtic Arts of Canada 1988), 609–16. 22 ‘Mr. Attorney General and his Libel Cases,’ Canadian Freeman (1st ed.), 1 May 1828, 2. Also see ‘Liberty of the Press,’ Canadian Freeman (1st ed.), 17 April 1828, 2.

266

Notes to pages 85–7

23 Canadian Freeman (1st ed.), 6 November 1828, 2. Also see ‘Administration of Justice in Upper Canada and Liberty of the Press,’ Canadian Freeman (1st ed.), 6 November 1828, 2. 24 ‘Judge Willis,’ Canadian Freeman (1st ed.), 4 December 1828, 3. 25 McNairn, The Capacity to Judge, 139, 140. Also see Barry Wright, ‘Sedition in Upper Canada: Contested Legality,’ Labour / Le Travail 29 (1992), 9. Recognition of the limitations of seditious libel to silence the press also occurred in England. Philip Harling, ‘The Law of Libel and the Limits of Repression, 1790–1832,’ The Historical Journal 44 (2001), 107–34. 26 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: University of Toronto Press and Osgoode Society 1986), 154–5. 27 Toronto Examiner, 10 November 1841, 2. 28 See the references to the Collins case in later debates over jury reform. See, for example, ‘Provincial Parliament,’ Brockville Recorder, 27 March 1835, 1. 29 JHA 1825–1826, 13, 16; ‘Debate on the Jury Bill,’ Upper Canada Herald, 19 November 1825. 30 JHA 1826–1827, 3, 6, 75, 79. 31 JHA 1828, 7, 18, 67, 73; Romney, Mr Attorney, 294; Romney, ‘From Constitutionalism to Legalism,’ 130. 32 Quoted in Romney, Mr Attorney, 294. 33 An Act for consolidating and amending the Laws relative to Jurors and Juries, 6 Geo. IV, c.50; James Kennedy, A Treatise on the Law and Practice of Juries (London: S. Sweet 1826). 34 JHA 1829, 11. Baldwin had expressed his concern over the corruption of trial by jury as early as 1821, when, in a speech in the assembly during the debate over the repeal of the Sedition Act of 1804, he emphasized the role of the jury in the British constitution. He concluded that the act had ‘remained in force, not only in the face of Magna Charta, but directly in the face of all the statutes made for the liberty and protection of the subject.’ He argued that the act was ‘arbitrary and tyrannical,’ and undermined trial by jury, ‘the great land-mark in our constitution.’ Quoted in Robert L. Fraser, ‘William Warren Baldwin,’ DCB, 7: 38. 35 ‘From the Loyalist,’ Brockville Gazette, 13 February 1829, 1. 36 Fraser, ‘“All the privileges which Englishmen possess,”’ xxxv; Janet Ajzenstat, ‘Durham and Robinson: Political Faction and Moderation,’ in Janet Ajzenstat and Peter J. Smith, eds., Canada’s Origins: Liberal, Tory, or Republican? (Ottawa: Carleton University Press 1995), 143; Robert E. Saunders, ‘Sir John Beverley Robinson,’ DCB, 9: 668–79.

Notes to pages 87–9

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37 ‘From the Loyalist,’ Brockville Gazette, 13 February 1829, 1. 38 Ibid. 39 JHA 1831, 6, 14; H.V. Nelles, ‘Bartholomew Crannell Beardsley,’ DCB, 8: 69–70. 40 LAC, MG24, B18, vol. 5, 413. 41 York Courier, 28 February 1831, quoted in Craig, Upper Canada: The Formative Years, 197. 42 H.E. Turner, ‘Peter Perry,’ DCB, 8: 694–9. 43 JHA 1832–1833, 17. 44 Reformers also attempted to extend the benefits of juries to courts they considered to be irresponsible. For example, reformers sought to provide juries for the Courts of Requests. Perry attempted to ensure that parties could have a six-person jury in these courts. In 1835, a future leader of the 1837 rebellion, Charles Duncombe, gave notice that he would introduce a bill to allow parties access to trial by jury when either party requested it in the Courts of Requests. JHA 1832–33, 50; JHA 1835, 18. In April 1836, a special committee of the assembly appointed to enquire into the state of the administration of justice provided a hint as to why reformers introduced such legislation. The committee suggested that the Courts of Requests consisted of ‘a body of irresponsible Commissioners, resident in the immediate neighbourhood of the litigant parties, and to them are committed the Administration of Justice, in cases of debts under £10, without the medium of a Jury, or the power of Appeal.’ The committee (and perhaps Duncombe and Perry) had little faith in the commissioners sitting in the Courts of Requests. Juries would provide better justice, they believed. ‘Second Report on the Administration of Justice,’ JHA 1836, App., vol. 1, no. 136, 9. 45 Reformers frequently drew from American legislation in modeling reform initiatives. Craig, Upper Canada: The Formative Years, 188–209. 46 Seymour D. Thompson, A Treatise on the Law of Trials in Actions Civil and Criminal, vol. 1 (Chicago: T.H. Flood and Company 1889), 12–13. 47 Note that slightly different legislative provisions existed for the selection of jurors in the City of New York. See 2 Rev. Stat. N.Y. 414, ss.24–6, 29–30; Thomas W. Waterman, A Complete Practical Treatise on Criminal Procedure, Pleading and Evidence in Indictable Cases, vol. 1, 7th ed. (Albany: Banks and Brothers 1860), 518–22; John H. Colby, A Practical Treatise upon the Criminal Law and Practice of the State of New York, vol. 1 (Albany: Weare C. Little 1868), 333–4; Hugo Hirsh, A Practical Treatise on Juries (New York: George S. Diossy 1879), 37–44. 48 ‘Provincial Parliament,’ St Thomas Liberal, 13 December 1832, 1. Also see ‘Provincial Parliament,’ Christian Guardian, 21 November 1832, 3; ‘Prov-

268

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50 51 52 53 54 55

56 57

58 59

60

Notes to pages 89–90 incial Parliament,’ Christian Guardian, 28 November 1832, 2; ‘Mr Perry’s Jury Bill,’ Colonial Advocate, 22 November 1832, 2; ‘Mr Perry’s Jury Bill,’ Courier of Upper Canada, 10 November 1932, 2; ‘Provincial Parliament,’ Courier of Upper Canada, 1 December 1832, 1. In encouraging the passage of Perry’s bill, the radical St Thomas Liberal argued that the legislation would protect the English constitution. ‘Trial by jury, ever since the reign of Alfred the Great,’ the paper asserted, ‘has justly been considered the palladium of English liberty – the mighty bulwark of British freedom.’ Jurors, it continued, ‘should be selected in a way that would be entirely above suspicion,’ and Perry’s bill ‘obviates all difficulties with which the present system is encumbered.’ St Thomas Liberal, 22 November 1832, 3. ‘Mr Perry’s Jury Bill,’ Brockville Gazette, 22 November 1832, 2; ‘Mr Perry’s Jury Bill,’ St Thomas Liberal, 22 November 1832, 2; Robert J. Burns, ‘William Botsford Jarvis,’ DCB, 9: 411–12. ‘Provincial Parliament,’ St Thomas Liberal, 13 December 1832, 1; Robert L. Fraser, ‘Christopher Alexander Hagerman,’ DCB, 7: 365–72. Lord Goderich to Lieutenant Governor Sir John Colborne (27 February 1833), LAC, RG7, G1, vol. 70, 79–87. JHA 1833–1834, 22, 78, 83; ‘To the Free and Independent Electors of the County of Lanark,’ Perth Courier, 3 October 1834, 3. Craig, Upper Canada: The Formative Years, 220–1. JHA 1835, 19, 48; ‘Jury Bill,’ Brockville Recorder, 27 February 1835, 1. For example, for every township with 5,000 or fewer citizens, the selectors would choose eighteen potential jurors for every 100 residents. As townships got bigger, the proportion of jurors to be selected decreased, so that when a township had over 35,000 residents, the selectors chose only five petit jurors per 200 inhabitants. A copy of the 1835 bill may be found in ‘Provincial Parliament,’ Correspondent and Advocate, 29 January 1835, 1. Also see LAC, MG24, B18, vol. 5, 435–55: William Lyon Mackenzie papers: ‘Mr Perry’s Jury Bill for the regulating of the manner of appointing Grand and Petit Jurors.’ ‘Provincial Parliament,’ Perth Courier, 27 March 1835, 2. ‘Provincial Parliament,’ Kingston Chronicle and Gazette, 14 March 1835, 1–2; ‘Jury Bill,’ Brockville Recorder, 20 March 1835, 1–2; ‘Provincial Parliament,’ Brockville Recorder, 27 March 1835, 1. ‘Jury Bill,’ Kingston Chronicle and Gazette, 4 April 1835, 2. ‘Provincial Parliament,’ Perth Courier, 27 March 1835, 2; Correspondent and Advocate, 5 March 1835, 2; ‘Provincial Parliament,’ Correspondent and Advocate, 12 March 1835, 2. JHA 1836, 200; A copy of the 1836 bill may be found in Proceedings of the

Notes to pages 91–4

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62 63 64 65 66 67 68 69 70 71

72

73

74 75 76 77 78 79

269

Legislative Council of Upper Canada on the bill … An Act to amend the Jury Laws of this Province, 35–47. Proceedings of the Legislative Council of Upper Canada on the bill … An Act to amend the Jury Laws of this Province, 17–18. For further criticisms of the bill, see ‘Provincial Parliament,’ Canadian Emigrant, 22 March 1836, 1–2. Proceedings of the Legislative Council of Upper Canada on the bill … An Act to amend the Jury Laws of this Province, 18. Greer, ‘Historical Roots of Canadian Democracy,’ Journal of Canadian Studies 34 (1999), 11. Proceedings of the Legislative Council of Upper Canada on the bill … An Act to amend the Jury Laws of this Province, 19. Ibid., 21. Ibid., 23. Ibid., 24. Fraser, ‘“All the privileges which Englishmen possess,”’ xxxviii. Proceedings of the Legislative Council of Upper Canada on the bill … An Act to amend the Jury Laws of this Province, 31. Colin Read, The Rising in Western Upper Canada, 1837–38: The Duncombe Revolt and After (Toronto: University of Toronto Press 1982). An Act to provide for the more effectual and impartial Trial of Persons charged with Treason and Treasonable Practices, committed in this Province, S.O. 1838, c.2, s.2. F. Murray Greenwood and Barry Wright, ‘Introduction: Rebellion, Invasion, and the Crisis of the Colonial State in the Canadas, 1837–9,’ in F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, vol. 2, Rebellion and Invasion in the Canadas, 1837–1939 (Toronto: University of Toronto Press and Osgoode Society 2002), 3–37. Rainer Baehre, ‘Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion,’ in Greenwood and Wright, eds., Canadian State Trials, vol. 2, 46–7. Paul Romney and Barry Wright, ‘The Toronto Treason Trials, March–May 1838,’ in Greenwood and Wright, eds., Canadian State Trials,vol. 2, 67. Ibid., 62. Ibid., 84–7. Quoted in E.A. Lacey, ‘The Trials of John Montgomery,’ Ontario History 52 (1960), 150. E.A. Theller, Canada in 1837–38, vol. 1 (Philadelphia: Henry F. Anners 1841), 202. Reminiscences of Charles Durand of Toronto, Barrister (Toronto: Hunter Rose 1897), 348, 349, 350.

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Notes to pages 94–7

80 Quoted in Colin Read, ‘The Treason Trials of 1838 in Western Upper Canada,’ in Greenwood and Wright, eds., Canadian State Trials, vol. 2, 107. 81 Barry Wright, ‘The Kingston and London Courts Martial,’ in Greenwood and Wright, eds., Canadian State Trials, vol. 2, 130–59. 82 F. Murray Greenwood, ‘The Chartrand Murder Trial: Rebellion and Repression in Lower Canada, 1837–1839,’ Criminal Justice History 5 (1984), 129–59; F. Murray Greenwood, ‘The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison,’ in Greenwood and Wright, eds., Canadian State Trials, vol. 2, 281–2. 83 Quoted in Jean-Marie Fecteau, ‘“This Ultimate Resource’: Martial Law and State Repression in Lower Canada, 1837–8,’ in Greenwood and Wright, eds., Canadian State Trials, vol. 2, 226. 84 Western Herald, 25 September 1838, 4. 85 Janet Ajzenstat, The Political Thought of Lord Durham (Montreal: McGillQueen’s University Press 1988). 86 Sir Charles Lucas, ed., Lord Durham’s Report on the Affairs of British North America, vol. 2 (Oxford: Clarendon Press 1912), 45. 87 See, for example, Perth Courier, 20 September 1839, 3. 88 ‘Public Meeting on Lord Durham’s Resignation,’ Kingston Chronicle and Gazette, 6 October 1838, 2. 89 Paul Romney, ‘Upper Canada (Ontario): The Administration of Justice, 1784–1850,’ Manitoba Law Journal 23 (1996), 184. 90 Debates of the Legislative Assembly of United Canada, vol. 3 (1843), 161, 398. 91 Ibid., 458. Baldwin asked for and received comments concerning the proposed property qualifications in the bill. Several respondents suggested that he reduce the property requirements. See Wilson S. Conyer to Robert Baldwin (22 November 1843), Baldwin Room, Toronto Reference Library, L5, A39-99; John B. Crouse to Robert Baldwin (22 October 1843), Baldwin Room, Toronto Reference Library, L5, A40-61; Nathan Fellows to Robert Baldwin (18 November 1843), Baldwin Room, Toronto Reference Library, L5, A44-68; John A. Sloan to Robert Baldwin (22 November 1843), Baldwin Room, Toronto Reference Library, L5, A70-71; Adam Wilson to Robert Baldwin (18 October 1843), Baldwin Room, Toronto Reference Library, L5, A77-66. 92 Michael S. Cross and Robert Lochiel Fraser, ‘Robert Baldwin,’ DCB, 8: 45–59. 93 Wilton, ‘British to the Core: Responsible Government in Canada West,’ 290. And see Phillip A. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press 1985), 73–7.

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94 Peter Oliver notes that despite the many complaints about jury packing, juries frequently reached decisions at odds with the wishes of the government. ‘Either the sheriffs were remarkably unskilled in finding right-thinking jurors,’ Oliver ponders, ‘or the processes of justice remained far freer than some would have us believe.’ Peter Oliver, ‘Power, Politics, and the Law: The Place of the Judiciary in the Historiography of Upper Canada,’ in G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law, vol. 8, In Honour of R.C.B. Risk (Toronto: University of Toronto Press and Osgoode Society 1999), 452. 95 Similarly, McNairn argues that Upper Canadian reformers brought forth a steady stream of bills to end primogeniture in part because the issue served to unify reformers, even if there was little chance that a bill would succeed. McNairn, The Capacity to Judge, 368–9. 96 On the tendency of both Tories and reformers to emphasize their loyalty to British institutions, see David Mills, The Idea of Loyalty in Upper Canada, 1784–1850 (Montreal: McGill-Queen’s University Press 1988); Wilton, ‘British to the Core: Responsible Government in Canada West’; Greer, ‘Historical Roots of Canadian Democracy,’ 7–26. 5: Responsible Government, the Magistrates’ Affair, and the Breakdown of the Nova Scotia Jury System 1 For example, in 1847 the judge who was to have presided at the Supreme Court in Yarmouth County arrived too late to hold the term. As a consequence, the juries for the upcoming year were not legally formed since a member of the Supreme Court had to be present at the drawing of names. Special legislation for Yarmouth therefore allowed the deputy prothonotary of the Supreme Court for Yarmouth to draw the grand and petit jurors, in the presence of the high sheriff and custos rotulorum. JHA 1847, 559; An Act to provide for the Drawing of Juries in the County of Yarmouth for the present Year, S.N.S. 1847, c.8. Another problem concerned jury selection in Halifax. In 1847, the legislature declared that there were too few qualified petit jurors returned in Halifax and took drastic steps to remedy the situation. The solution was for the Halifax prothonotary in April 1847 to form a petit jury by drawing thirty-six persons alternatively from the boxes containing the names of the grand and petit jurors, until one of the boxes was exhausted. JHA 1847, 609; ‘Legislative,’ Halifax Sun, 24 February 1847, 2; An Act to provide for the Drawing of Petit Juries for the Supreme Court in Halifax for the present year, S.N.S. 1847, c.23. 2 David Alexander Sutherland, ‘The Merchants of Halifax, 1815–1850: A

272

Notes to pages 102–3

Commercial Class in Pursuit of Metropolitan Status’ (PhD diss., University of Toronto 1975), 397. 3 An Act for the regulation of Juries, S.N.S. 1848, c.34. The act also altered slightly the property qualifications for jurors. In Halifax, the act increased the property qualifications for grand jurors to a freehold worth at least thirty pounds, or a personal estate of 500 pounds. In other counties, the requirements remained those first passed in the 1833 jury act: a freehold estate of fifteen pounds or personal estate of 300 pounds. The biggest change concerned the property qualification of trial jurors. Anyone with a freehold and/or personal estate of 200 pounds could serve as a petit juror in the province. The 1848 act also modified the special jury laws. It required that special jurors be drawn from the petit juror boxes rather than from the grand juror boxes, as in the past. An Act for the regulation of Juries, S.N.S. 1848, c.34. 4 J. Murray Beck, Politics of Nova Scotia, vol. 1., Nicholson-Fielding, 1710–1896 (Tantallon, NS: Four East 1985), 134–5; Ronald A. MacDonald, ‘The Squires of Antigonish,’ Nova Scotia Historical Review 10, no. 1 (1990), 67–8; Philip Girard, ‘The Maritime Provinces, 1850–1939: Lawyers and Legal Institutions,’ Manitoba Law Journal 23 (1996), 384; T.W. Acheson, ‘The 1840s: Decade of Tribulation,’ in Phillip A. Buckner and John G. Reid, eds., The Atlantic Region to Confederation: A History (Toronto: University of Toronto Press 1994), 326; Phillip A. Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press 1985), 304. 5 See the breakdown of county officials for Cumberland County in Belcher’s Farmer’s Almanack between 1847 and 1851. There was also a substantial turnover in the sheriffs of Nova Scotia. Belcher’s indicates that six counties received new sheriffs in the same period. Belcher’s Farmer’s Almanack (Halifax: W.C. Manning 1847–1851). The effect of party politics on the appointment of sheriffs could be seen in other ways. In 1856, Brenton Halliburton wrote to William Young to ask that the judges of the Supreme Court be removed from the selection process for sheriffs. He noted that, in the past, the lieutenant governor had selected the first of the three sheriff candidates listed for each county. Halliburton charged, however, that the government had recently failed to reappoint an able sheriff in Cumberland County because he was aligned with the wrong political party. He said it was ‘of the utmost importance’ that sheriffs ‘should not be mere political partisans or made to feel that their continuance in office depends upon the zeal with which they may support a government.’ Brenton Halliburton to William Young (15 February 1856), NSARM, MG2, vol. 734, no. 750, William Young

Notes to pages 103–5

6 7 8 9 10

11 12

13

14

15 16 17 18

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Papers. In 1868, the provincial government refused to reappoint George Craigie Laurence, the sheriff of Inverness County from 1837 to 1868, because of his pro-Confederation leanings. William H. Laurence, ‘Process and Particulars: The Informational Needs and Sources of a NineteenthCentury Nova Scotian Sheriff,’ Épilogue 12, no. 1 (1997), 1–22. The selection of judges to the Supreme Court of Nova Scotia also became more political. This is best illustrated by Premier William Young’s decision to appoint himself chief justice of the Nova Scotia Supreme Court in 1860. Philip Girard, ‘The Supreme Court of Nova Scotia, Responsible Government, and the Quest for Legitimacy, 1850–1920,’ Dalhousie Law Journal 17 (1994), 435; J. Murray Beck, ‘Sir William Young,’ DCB, 11: 943–9. MacDonald, ‘The Squires of Antigonish,’ 66–8. See, for example, ‘To the Queen’s Most Excellent Majesty,’ Halifax British Colonist, 15 May 1849, 2. JHA 1858, App. 51, 377, 378, 381, 387. JHA 1858, App. 51, 384. Philip Girard, ‘“I will not pin my faith to his sleeve”: Beamish Murdoch, Joseph Howe, and Responsible Government Revisited,’ Royal Nova Scotia Historical Society Journal 4 (2001): 48–69. Also see Greg Marquis, ‘In Defence of Liberty: 17th-Century England and 19th-Century Maritime Political Culture,’ University of New Brunswick Law Journal 42 ‘(1993): 86; Buckner, The Transition to Responsible Government, 71. ‘The Coming Election,’ Halifax British Colonist, 5 July 1851, 2. Emphasis in original. Janet Ajzenstat, ‘The Constitutionalism of Etienne Parent and Joseph Howe,’ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791–1991 (Ottawa: Canadian Study of Parliament Group 1992), 168–70. Buckner, The Transition to Responsible Government, 305. Also see J. Murray Beck, ‘The Party System in Nova Scotia,’ Canadian Journal of Economics and Political Science 20 (1954), 514–15. Allan C. Dunlop, ‘James Daniel Bain Fraser,’ DCB, 9: 280–2; R.A. MacLean, ‘Martin Isaac Wilkins,’ DCB, 11: 926–7; Brian Cuthbertson, Johnny Bluenose at the Polls: Epic Nova Scotia Election Battles, 1758–1848 (Halifax: Formac Publishing 1994), 250–8; John Doull, ‘Four Attorney-Generals,’ Collections of the Nova Scotia Historical Society 27 (1947), 5–10. ‘The Trial for Libel,’ Halifax British Colonist, 5 January 1849, 1. Halifax British Colonist, 2 February 1850, 2. Halifax British Colonist, 22 March 1851, 2. Halifax British Colonist, 22 March 1851, 2; K.G. Pryke, ‘Stephen Fulton,’ DCB, 9: 294–5.

274

Notes to pages 105–9

19 Novascotian, 1 April 1850. 20 An Act further concerning the Act for the Regulation of Juries, S.N.S. 1850, c.55, s.1; Novascotian, 1 April 1850. The legislature passed a number of other acts excusing jury selection irregularities before 1900. See, for example, An Act to amend the Jury Law, S.N.S. 1855, c.18; An Act to amend the Jury Law, S.N.S. 1856, c.25; An Act to legalize Jury Lists and Panels for the present year, S.N.S. 1864, c.14; An Act to legalize Jury Lists and Panels for the present year, S.N.S. 1875, c.4; An Act to Legalize Jury Panels and Assessment Rolls for 1889, S.N.S. 1889, c.65. 21 Halifax British Colonist, 17 February 1853, 2. 22 ‘Talk, &c., in the Country,’ Halifax British Colonist, 19 March 1853, 2. 23 ‘Jury Frauds Discovered in Cumberland Bean Box Outdone,’ Halifax British Colonist, 30 June 1853, 2. 24 Halifax British Colonist, 2 July 1853, 2. 25 Halifax British Colonist, 16 July 1853, 2. 26 Novascotian, 25 July 1853; ‘Supreme Court,’ Halifax British Colonist, 26 July 1853, 2; ‘Criminal Information,’ Acadian Recorder, 23 July 1853. 27 Novascotian, 4 July 1853. 28 ‘Talk in the Country,’ Novascotian, 15 June 1853. 29 ‘Cumberland Past and Present,’ Novascotian, 4 July 1853. 30 ‘Spirit of the Provincial Press,’ Novascotian, 11 July 1853. For their part, the magistrates at the Cumberland General Sessions claimed that the charges of jury packing were false. At a special sessions held in Amherst on 5 October 1853, the court recorded its belief that the charges were ‘wholly untrue.’ NSARM, RG34–309: Proceedings Book, Cumberland County, General Sessions, 1850–1859, 87. 31 ‘Law Decisions and Something More,’ Novascotian, 1 August 1853; ‘Nonsuited. Robert Barry Dickey Against Joshua Huestis,’ Novascotian, 1 August 1853; ‘Supreme Court,’ Halifax British Colonist, 2 August 1853, 2. 32 Lessee of Seaman v. Campbell (1853), 2 N.S.R. 94 at 95. Also see ‘The Supreme Court,’ Novascotian, 25 July 1853. 33 Lessee of Seaman v. Campbell (1853), 2 N.S.R. 94 at 97. 34 Ibid., 98. 35 Ibid., 100. 36 Ibid., 101. 37 ‘The Supreme Court,’ Novascotian, 1 August 1853; ‘Law Decisions and Something More,’ Novascotian, 1 August 1853. 38 ‘Judiciary,’ Acadian Recorder, 30 July 1853. 39 The Queen v. Thomas Murphy and Others (1853), 2 N.S.R. 158 at 158–9. 40 NSARM, RG5, series GP, misc. A, vol. 2, no. 89 (29 November 1853). 41 JHA 1854, 394.

Notes to pages 110–13

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42 An Act to alter and amend Chapter 136 of the Revised Statutes, ‘Of Juries,’ S.N.S. 1854, c.11, s.1. 43 An Act to further amend the Jury Law, S.N.S. 1854, c.22, s.1. 44 The Queen v. William R. Belyea (1854), 2 N.S.R. 220 at 222. 45 Ibid., 223. 46 Ibid., 225. 47 Ibid., 226. 48 Ibid., 227. 49 Ibid., 227–8. 50 Terrence M. Punch, Irish Halifax: The Immigrant Generation, 1815–1859 (Halifax: International Education Centre, Saint Mary’s University 1981), 58–65. 51 Halifax British Colonist, 9 December 1856, 2. It was unclear whether defendants being tried together could each peremptorily challenge four jurors, or whether they could only challenge four in total. The Court held that the defendants could collectively only challenge four jurors. In 1838, Nova Scotia provided three peremptory challenges ‘in all cases of the trial of any Issues, Actions or Prosecutions, Civil or Criminal.’ In 1848, parties in Halifax County had the number of peremptories raised to four, though three peremptories remained the norm in other parts of the colony. An Act for the Regulation of Juries, S.N.S. 1838, c.6, s.16; An Act for the regulation of Juries, S.N.S. 1848, c.34, s.13. 52 Halifax British Colonist, 13 December 1856, 1; Beck, Politics of Nova Scotia, vol. 1, 145. 53 Terrence M. Punch, ‘Joe Howe and the Irish,’ Collections of the Nova Scotia Historical Society 41 (1982), 131–5; Punch, Irish Halifax: The Immigrant Generation, 63–5; J. Murray Beck, Joseph Howe, vol. 2, The Briton Becomes Canadian, 1848–1873 (Montreal: McGill-Queen’s University Press 1983), 115–20. 54 Halifax British Colonist, 4 April 1857, 2. 55 The Queen v. James Kennedy (1857), 3 N.S.R. 203. 56 ‘Opposition Justice,’ Halifax British Colonist, 29 November 1859, 2. 57 The Queen v. James Kennedy (1857), 3 N.S.R. 203 at 209. For press discussions of the case, see Halifax British Colonist, 20 June 1857, 2; Halifax British Colonist, 1 December 1857, 2; Halifax British Colonist, 28 January 1858, 2. 58 Halifax British Colonist, 22 October 1859, 2. Also see Halifax British Colonist, 29 October 1859, 2; Halifax British Colonist, 8 November 1859, 2. 59 ‘Look on this Picture, and on That,’ Halifax British Colonist, 24 November 1859, 2. 60 The Queen vs. George Preeper, An Indictment for Manslaughter, Tried at Halifax Before Mr. Justice Wilkins (Halifax: James Bowes and Sons 1859); ‘First

276

61 62 63 64 65

66 67

68

69 70 71 72

Notes to pages 113–15

Fruits of the Preeper Verdict,’ Halifax British Colonist, 12 January 1860, 2. Halifax British Colonist, 19 November 1859, 2. ‘Trial of Preeper,’ Halifax British Colonist, 26 November 1859, 2; ‘Trial of Preeper,’ Acadian Recorder, 3 December 1859. ‘Look on this Picture, and on that,’ Halifax British Colonist, 24 November 1859, 2. ‘Opposition Justice,’ Halifax British Colonist, 29 November 1859, 2. Halifax British Colonist, 8 December 1859, 2. Also see, ‘The Preeper Verdict,’ Halifax British Colonist, 10 December 1859, 2; Halifax British Colonist, 13 December 1859, 2; Halifax British Colonist, 17 December 1859, 2; Halifax British Colonist, 21 February 1860, 2. ‘Criminal Information,’ Acadian Recorder, 23 July 1853. Emphasis in original. Daniel Sampson, The Spirit of Industry and Improvement: Liberal Government and Rural- Industrial Society, Nova Scotia 1790–1862 (Montreal: McGillQueen’s University Press, 2008), 11. On rule of law thought in Canada, see R.C.B. Risk, ‘Canadian Courts under the Influence,’ University of Toronto Law Journal 40 (1990), 687–737; R.C.B. Risk, ‘Constitutional Thought in the Late Nineteenth Century,’ Manitoba Law Journal 20 (1991), 196–203. On legal formalism in the United States, see William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press 1998); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press 1995), 9–64. Risk, ‘Constitutional Thought in the Late Nineteenth Century,’ 200. Tina Loo, Making Law, Order, and Authority in British Columbia, 1821–1871 (Toronto: University of Toronto Press 1994). ‘Trial by Jury,’ Acadian Recorder, 30 January 1847. Jim Phillips, ‘The Criminal Trial in Nova Scotia, 1749–1815,’ in G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law, vol. 8, In Honour of R.C.B. Risk (Toronto: University of Toronto Press and Osgoode Society 1999), 475–7. The criminal trial was a shorter affair in England in the same period. At the criminal proceedings held in London at the Old Bailey courthouse it was common for two juries to discharge caseloads of fifty to 100 criminal trials over a couple of days up until the 1770s. John H. Langbein, ‘The English Criminal Trial Jury on the Eve of the French Revolution,’ in Antonio Padoa Schioppa, ed., The Trial Jury in England, France, Germany, 1700–1900 (Berlin: Duncker and Humblot 1987), 27–8.

Notes to pages 115–18

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73 Summary Proceedings Act, S.N.S. 1858, c.16; Barry Cahill and Jim Phillips, ‘The Supreme Court of Nova Scotia: Origins to Confederation,’ in Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia 1754–2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press and Osgoode Society 2004), 103. 74 ‘The Supreme Court,’ Acadian Recorder, 20 April 1850. 75 An Act to amend Chapter 126 of the Revised Statutes, ‘Of the Supreme Court and its Officers,’ S.N.S. 1862, c.5, preamble. 76 Debates, Nova Scotia House of Assembly, 1864, 225. 77 For example, in its presentment in December 1868, the grand jury at the Quarter Sessions in Halifax complained that twenty-four jurors were taken from their businesses. The jury proposed that the law should be amended ‘as to require only fifteen Grand Jurors, nine to constitute a quorum.’ NSARM, RG34–312, series F, vol. 11: Halifax Sessions: Financial papers including treasurers’ accounts, Grand Jury Estimates. 78 ‘Supreme Court,’ Acadian Recorder, 19 November 1859. 79 NSARM, RG5, series P, vol. 17, no. 86 (18 February 1860). 80 NSARM, RG5, series P, vol. 18, no. 77 (25 February 1863); JHA 1863, 24. Also see JHA 1863, 38. And see the debate in the legislative council regarding a bill to abolish special juries in 1861. Debates, Nova Scotia Legislative Council, 1861, 23–6. 81 Halifax Sun and Advertiser, 29 January 1866. Also see ‘Supreme Court,’ Halifax Sun and Advertiser, 5 December 1864, 2. 82 The traditional view of the self-informing jury is described in Thomas Andrew Green, Verdict According to Conscience: Perspective on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press 1985), 16–17. For a review of the debate about the extent to which the jury was self-informed and when it began relying more on the evidence presented in court, see James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University Press 2006), 115–26; Daniel Klerman, ‘Was the Jury Ever Self-Informing?’Southern California Law Review 77 (2003), 123–49; Sanjeev Anand, ‘The Origins, Early History and Evolution of the English Criminal Trial Jury,’ Alberta Law Review 43 (2005), 417–18. 83 ‘The Jury Law,’ The Casket, 11 August 1853, 2. 84 Philip V. Girard, ‘Patriot Jurist: Beamish Murdoch of Halifax, 1800–1875’ (PhD diss., Dalhousie University 1998), 133–6, 145. Also see Philip Girard, ‘The Roots of a Professional Renaissance, Lawyers in Nova Scotia, 1850– 1910,’ Manitoba Law Journal 20 (1991), 154. 85 Girard, ‘Patriot Jurist,’ 14.

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Notes to pages 118–20

86 Matthew P. Harrington, ‘The Law-Finding Function of the American Jury,’ Wisconsin Law Review [1999], 427–35. 87 ‘The Changing Role of the Jury in the Nineteenth Century,’ Yale Law Journal 74 (1964), 191. 88 John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire (Dekalb, IL: Northern Illinois Press 2004). 89 Conor Hanly, ‘The Decline of Civil Jury Trial in Nineteenth-Century England,’ Journal of Legal History 26 (2005), 259. 90 Thomas A. Green, ‘The English Criminal Trial Jury and the Law-Finding Traditions on the Eve of the French Revolution,’ in Schioppa, ed., The Trial Jury in England, France, Germany, 72. 91 Halifax Sun and Advertiser, 14 November 1864, 2. 92 Cox v. Witt (1869), 8 N.S.R. 25 at 29. Emphasis in original. 93 Debates, Nova Scotia House of Assembly, 1856, 14. 94 Ibid. 95 An Act to amend Chapter 136 of the Revised Statutes, ‘Of Juries,’ S.N.S. 1856, c.7. In 1859, the legislature continued the 1856 act for five years. An Act to continue the Act to amend Chapter 136 of the Revised Statutes, ‘Of Juries,’ S.N.S. 1859, c.34. 96 An Act for the regulation of Juries, S.N.S. 1848, c.34, ss.11, 14. An act in 1787 had provided that each juror should receive one shilling for every case tried. An Act for the establishment of Fees, as regulated by the Governor and Council, at the request of the House of Assembly, S.N.S. 1787, c.15. 97 Halifax British Colonist, 22 December 1860, 2. 98 NSARM, RG34–312, series J, vol. 9: Halifax Sessions, Administration of Justice: Fees paid to witnesses and jurors. Also see NSARM, RG34–313, J13: Hants County Court of General Sessions of the Peace Fonds: Fees Paid to Witnesses and Jurors, 1863–1879. For a complaint about the cost of jury fees, see ‘Grand Jury Presentment,’ Halifax Citizen, 19 December 1872, 3. 99 Debates, Nova Scotia House of Assembly, 1856, 13. For example, at the General Sessions in Lunenburg in April 1854, it was recommended that sixty pounds be assessed on the county to pay the grand jurors for their services at the General Sessions. NSARM, RG34–317, P2: Lunenburg County General Sessions Book, 1845–1871, 137. In 1872, Nova Scotia provided that every grand juror at a General Sessions was to be paid one dollar per day, plus ten cents per mile travelled. An Act regulating Fees of Grand and Petit Jurors, S.N.S. 1872, c.8. 100 Debates, Nova Scotia House of Assembly, 1864, 85–6. An 1854 petition from Colchester County recommended that grand jurors receive five shillings

Notes to pages 120–2

101 102

103

104 105 106 107 108 109 110

111

112

279

per day. Halifax British Colonist, 30 March 1854, 2; NSARM, RG5, series P, vol. 14, no. 1 (9 January 1854); JHA 1854, 441. In 1860, a petition calling for compensation for grand jurors at the Supreme Court failed to spur action. NSARM, RG5, series P, vol. 17, no. 64 (13 January 1860). An Act relating to the Fees of Grand Jurors, S.N.S. 1874, c.19. Patrick Devlin, Trial by Jury (London: Stevens and Sons 1966), 50; Jurors Act (U.K.), 1870, s.23. This is not to say that all jurors in Nova Scotia would be pleased by the quality of the food, drink, and light provided. See ‘Juries and Justice,’ Halifax Morning Chronicle, 27 March 1875, 2. New Brunswick had abolished the rule keeping food, drink, and other comforts from jurors in 1855. An Act relating to Jurors, S.N.B. 1855, c.24, s.16. Michael Lobban, ‘The Strange Life of the English Civil Jury, 1837–1914,’ in John W. Cairns and Grant McLeod, eds., ‘The Dearest Birth Right of the People of England’: The Jury in the History of the Common Law (Oxford: Hart 2002), 204. The traditional rule did not disturb the sensibilities of the Nova Scotia Attorney General in 1841, however. In discussing a petition that called for the end of the unanimity rule, he said that the petition ought to be withdrawn, for while in Scotland a majority of the jurors was considered sufficient to find a verdict, this was only because, he joked, ‘twelve Scotchmen never could be brought to agree upon anything.’ In England, however, it was unnecessary ‘because there the juries were allowed neither meat nor drink until they had unanimously agreed to a verdict. That was quite enough for John Bull; they might quarrel a little at first, but when the qualms of hunger came on, they generally came to a conclusion.’ Acadian Recorder, 6 March 1841. The Queen v. James Kennedy (1857), 3 N.S.R. 203; ‘Supreme Court,’ Halifax British Colonist, 1 December 1857, 2. The Queen v. James Kennedy (1857), 3 N.S.R. 203 at 206, 207. Ibid., 208. See chapter 4. NSARM, RG5, series P, vol. 10, no. 84 (22 January 1849). An Act relating to Jurors, S.N.B. 1855, c.24, s.11. David M. Gold, ‘Reforming the Civil Jury in the Nineteenth-Century West: Jury Size and Unanimity of Verdicts,’ Western Legal History 15, no. 2 (2002), 137–64. ‘Unanimity of Juries on Criminal Trials,’ Novascotian, 18 February 1830. The Times article was drawn from a pamphlet entitled ‘Observations on the English Jury Laws in Criminal Cases, with respect to the distinction between Unanimous Verdicts and Verdicts by Majority.’ ‘Unanimity of Juries,’ Novascotian, 14 February 1833.

280 113 114 115 116

117

118 119 120 121

122 123 124 125 126

127

Notes to pages 123–6 Ibid. See also ‘Unanimity of Juries,’ Novascotian, 21 February 1833. NSARM, RG5, series P, vol. 8, no. 46 (1840). Acadian Recorder, 6 March 1841; JHA 1841, 58. ‘Supreme Court,’ Halifax British Colonist, 28 August 1849, 2. Emphasis in original. Also see, for example, Halifax British Colonist, 13 December 1856, 1; ‘Court of General Sessions,’ Halifax British Colonist, 20 December 1860, 2; ‘The Supreme Court,’ Acadian Recorder, 23 January 1858; ‘Supreme Court,’ Acadian Recorder, 19 November 1859; ‘Supreme Court,’ Halifax Sun and Advertiser, 15 July 1863, 2; ‘Supreme Court,’ Halifax Sun and Advertiser, 7 November 1866, 2; Halifax Citizen, 17 May 1864, 2. ‘The Late Trial of Carten versus Walsh and Others,’ Novascotian, 14 January 1850; George Patterson, Studies in Nova Scotian History (Halifax: Imperial Publishing 1940), 70–7; Important Trial Supreme Court, Halifax, Carten vs. Walsh, et. al., for trespass (N.p.: N.p., 1849?). Halifax British Colonist, 5 January 1850, 2. Lobban, ‘The Strange Life of the English Civil Jury, 1837–1914,’ 204–5. ‘Supreme Court,’ Halifax Citizen, 20 November 1866, 2. J. Murray Beck, The Evolution of Municipal Government in Nova Scotia, 1749–1973 (Halifax: Nova Scotia Royal Commission on Education, Public Services, and Provincial-Municipal Relations 1973), 12–15. Girard, ‘The Maritime Provinces, 1850–1939: Lawyers and Legal Institutions,’ 383. An Act to Incorporate the Town of Halifax, S.N.S. 1841, c.55, ss.62, 70–1. Halifax British Colonist, 2 February 1850, 2. NSARM, RG5, series P, vol. 12, no. 14 (19 February 1852). NSARM, RG5, series P, vol. 12, no. 32 (26 February 1852). For other petitions from Digby in favour of incorporation, see NSARM, RG5, series P, vol. 12, no. 50 (4 March 1852). NSARM, RG5, series P, vol. 13, no. 9 (4 February 1853). For other petitions to the assembly supporting municipal incorporation see NSARM, RG5, series P, vol. 12, no. 33 (26 February 1852); NSARM, RG5, series P, vol. 12, no. 34 (26 February 1852); NSARM, RG5, series P, vol. 12, no. 35 (26 February 1852); NSARM, RG5, series P, vol. 12, no. 36 (26 February 1852); NSARM, RG5, series P, vol. 12, no. 37 (26 February 1852); NSARM, RG5, series P, vol. 12, no. 37A (26 February 1852); NSARM, RG5, series P, vol. 12, no. 51 (5 March 1852); NSARM, RG5, series P, vol. 12, no. 52 (5 March 1852); NSARM, RG5, series P, vol. 12, no. 53 (5 March 1852); NSARM, RG5, series P, vol. 12, no. 54 (8 March 1852); NSARM, RG5, series P, vol. 12, no. 57 (11 March 1852); NSARM, RG5, series P, vol. 12, no. 67 (1852); NSARM, RG5, series P, vol. 12, no. 68 (1852); NSARM, RG5, series P, vol.

Notes to pages 126–8

128 129

130 131 132 133 134 135 136 137 138 139 140

141 142

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12, no. 69 (1852); NSARM, RG5, series P, vol. 12, no. 70 (1852); NSARM, RG5, series P, vol. 12, no. 71 (1852); NSARM, RG5, series P, vol. 15, no. 24 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 36 (15 February 1855); NSARM, RG5, series P, vol. 15, no. 37 (16 February 1855); NSARM, RG5, series P, vol. 15, no. 38 (16 February 1855); NSARM, RG5, series P, vol. 15, no. 41 (27 February 1855). See chapter 4. “House of Assembly,’ Halifax British Colonist, 25 January 1853, 2; ‘House of Assembly,’ Halifax British Colonist, 29 January 1853, 4. Johnston had long disliked the development of a party system in Nova Scotia. See David A. Sutherland, ‘J.W. Johnston and the Metamorphosis of Nova Scotia Conservatism’ (MA thesis, Dalhousie University 1968). ‘House of Assembly,’ Halifax British Colonist, 14 March 1854, 2. Halifax British Colonist, 20 June 1854, 2. JHA 1852, 69, 165; JHA 1853, 223, 226. JHA 1854, 407, 497, 532–3. Debates, Nova Scotia House of Assembly, 1855, 27–8; An Act for the Municipal Government of Counties, S.N.S. 1855, c.49. An Act of the Municipal Government of Townships, S.N.S. 1856, c.11; An Act to amend the Act for the Municipal Government of Counties, S.N.S. 1856, c.12. Debates, Nova Scotia House of Assembly, 1856, 44. ‘To the Electors of the Township of Argyle,’ Yarmouth Herald, 27 September 1855, 2. ‘Municipal Incorporations,’ Acadian Recorder, 4 October 1856, 2. Emphasis in original. Debates, Nova Scotia House of Assembly, 1856, 19–22, 43–5. See, for example, NSARM, RG5, series P, vol. 15, no. 22 (13 February 1855). For other petitions against incorporation, see NSARM, RG5, series P, vol. 15, no. 21 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 23 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 25 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 26 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 30 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 31 (13 February 1855); NSARM, RG5, series P, vol. 15, no. 32 (14 February 1855); NSARM, RG5, series P, vol. 15, no. 33 (14 February 1855); NSARM, RG5, series P, vol. 15, no. 34 (14 February 1855); NSARM, RG5, series P, vol. 15, no. 35 (15 February 1855); NSARM, RG5, series P, vol. 15, no. 42 (5 March 1855); NSARM, RG5, series P, vol. 15, no. 90 (February 1855). ‘The New Principle in Legislation,’ Acadian Recorder, 11 March 1854, 3. Yarmouth Herald, 11 October 1855, 3.

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143 An Act for the Municipal Government of Counties, S.N.S. 1855, c.49, s.4. 144 ‘Daily Summary,’ Halifax British Colonist, 30 March 1858, 2; ‘Provincial Parliament,’ Halifax British Colonist, 4 April 1857, 2; ‘To Thomas Killam,’ Yarmouth Herald, 15 April 1858, 3; ‘Communications,’ Yarmouth Herald, 22 April 1858, 2; ‘Provincial Secretary’s Office,’ Halifax British Colonist, 23 December 1858, 2. 145 See chapter 6. 146 JHA 1859, 28, 97, 108. A copy of the bill may be found in NSARM, RG5, series U, vol. 125, no. 20 (1859). 147 NSARM, RG5, series P, vol. 16, no. 63 (18 February 1858). 148 NSARM, RG5, series P, vol. 17, no. 26a (February 1859); NSARM, RG5, series P, vol. 17, no. 26b (19 February 1859); NSARM, RG5, series P, vol. 17, no. 26c (15 February 1859). In November 1864, Chief Justice William Young acknowledged the continuing unfairness of the urban/rural divide in Halifax County. He noted the ‘peculiarity in the law confining the selection in this County to an area of fifteen miles around the city of Halifax.’ As a result, a ‘large proportion of the inhabitants, including the populous settlement of Musquodoboit, and on the eastern and western coasts, are thus relieved from the burthen, but debarred also of the privilege of sitting on juries.’ Halifax Sun and Advertiser, 14 November 1864, 2. An original copy of Young’s comments may be found in NSARM, RG34–312, vol. 21, Halifax County, Grand Jury Book (8 November 1864). 149 Act Relating to Grand Jurors, S.N.S. 1833, c.51. 150 An Act to amend Chapter 136 of the Revised Statutes ‘Of Juries,’ S.N.S. 1863, c.27, s.2. 151 An Act to amend Chapter 136 of the Revised Statutes ‘Of Juries,’ S.N.S. 1865, c.8, ss.1–4; ‘Provincial Parliament,’ Halifax Morning Chronicle, 22 April 1865. 152 NSARM, RG5, series P, vol. 19, no. 124 (10 April 1865). 153 NSARM, RG34–312, vol. 21, Halifax County, Grand Jury Book (15 March 1866). 154 JHA 1866, 59; An act to alter and amend the Jury Law, so far as relates to the County of Halifax, S.N.S. 1866, c.52, s.1. 155 Halifax Sun and Advertiser, 29 January 1866. 6: Responsible Government and the 1850 Upper Canada Jury Act 1 For examples of the key place of jury reform in the list of reformers’ demands in the late 1840s, see ‘Meeting of Parliament!’ Toronto Globe, 26 May 1847, 1; ‘The Reform Party of Canada!’ Toronto Globe, 3 July 1849, 3.

Notes to pages 134–5

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2 See, for example, ‘Irish State Trials,’ Bytown Gazette, 4 April 1844, 1; ‘A Nut for “The Traversers,”’ Bytown Gazette, 16 May 1844, 1; ‘Ireland,’ Perth Courier, 27 February 1844, 2; ‘Ireland. The State Trials,’ Perth Courier, 5 March 1844, 1; ‘The State Trials,’ Toronto British Colonist, 13 February 1844, 2; ‘The Irish State Trials,’ Toronto British Colonist, 29 March 1844, 1; ‘The Irish State Trials,’ Toronto British Colonist, 9 August 1844, 2; ‘Liberation of O’Connell – Sentence Revered,’ Toronto British Colonist, 15 October 1844, 2. 3 The Toronto Globe did note, however, that ‘where a publication has been evidently made for the public benefit, and not for the indulgence of personal malice, it is rare to find a conviction obtained.’ ‘Prosecution for Libel,’ Toronto Globe, 27 May 1848, 2. Also see ‘The Assizes,’ Bathurst Courier, 18 May 1847, 2; ‘Colonel Gugy and the Press,’ Toronto Globe, 7 October 1848, 1; ‘Libel,’ Perth Courier, 24 November 1848, 1; ‘The Liberty of the Press,’ Toronto Globe, 30 May 1849, 2; ‘The Queen vs. George Brown,’ Toronto Globe, 20 June 1849, 3. 4 Debates of the Legislative Assembly of United Canada, vol. 9, part 2 (1850), 1253. 5 Ibid., 1254; North American Semi-Weekly, 23 July 1850, 2. Also see ‘The Jury Law,’ Perth Courier, 29 March 1850, 2. 6 An Act for the consolidation and amendment of the Laws relative to Jurors, Juries and Inquests in that part of this Province called Upper Canada, S.O. 1850, c.55, s.1 (hereinafter, UC Jury Act, 1850). 7 Exemptions from jury service at the superior courts included people over sixty years old; members of executive council; the secretary to the governor; clerks and servants belonging to the legislature, or to the public departments of the province; the warden of the provincial penitentiary, and all his officers and servants; judges of courts with general jurisdiction; judges of the County Courts, and judges of other courts except the Quarter Sessions of the Peace; sheriffs; gaolers; keepers of houses of corrections; priests, clergy, and ministers; members of the Law Society of Upper Canada; officers of the courts of justice; physicians, surgeons, and apothecaries; officers in the army and navy on full pay; pilots and seamen; officers of the post office, customs, and excise; sheriff’s officers and constables; county, township, city, town, and village treasurers and clerks; professors or teachers at universities, colleges, grammar schools, common schools, or other schools; officers or servants of any university; county, township, city, town, or village officers, except magistrates; millers; and fire fighters. The act provided for extra exemptions for jurors at the inferior courts, including members of legislative council and legislative assembly; wardens of counties; all members of county councils; mayors, town reeves, and deputy town reeves of any city, town, township, and village; and magistrates.

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Notes to pages 136–7

8 UC Jury Act, 1850, s.4. 9 RG22–2685–0-1: Kent County Sheriff and Clerk of the Peace Jurors’ Book, 1846–1857. 10 Allan Greer, ‘Historical Roots of Canadian Democracy,’ Journal of Canadian Studies 34 (1999), 16. 11 UC Jury Act, 1850, ss.5–7. 12 UC Jury Act, 1850, s.11. 13 UC Jury Act, 1850, ss.13–14. 14 If the court believed that a ‘full’ jury list was necessary, provisions were made to select forty-eight grand jurors for the superior court, ninety-six grand jurors for the inferior courts, 144 trial jurors for the superior courts, and 288 for the inferior courts’ trial juries. If the courts were less busy, the Quarter Sessions ordered the selection of one-half or one-third of a full complement of jurors. UC Jury Act, 1850, ss.16–19. 15 For example, the clerk was ‘to carefully fold and enclose the whole of each of the said sets of ballots in a separate and distinct sheet of paper envelope, and securely fold, and seal the same so as to prevent any of such ballots from being lost from or out of the same, and shall endorse each of said parcels of ballots with the year and name of the Jurors’ Roll to which the same belong.’ UC Jury Act, 1850, s.18. 16 UC Jury Act, 1850, ss.20–23. 17 UC Jury Act, 1850, ss.24–28, 36, 38, 86. The 1850 act also contained important new special jury provisions. As in the past, special juries were allowed in any case, whether civil or criminal, except for indictments of treason or felony. Special jurors were drawn from the lists of grand jurors for the inferior and superior courts. Forty ballots were drawn to form the special jury panel. Each party then struck out twelve. From the sixteen left, a balloting process formed the twelve-member jury. UC Jury Act, 1850, ss.39, 42, 43. These provisions thus used the ballot to remove jury selection from the hands of the sheriff. The act also allowed for the formation of ‘extra special’ juries with the consent of the parties. These could be empanelled if the legal dispute was between merchant and merchant, trader and trader, merchant and trader, manufacturer and manufacturer, mechanic and mechanic, or manufacturer and mechanic, and involved ‘one or more questions of Mechanical or scientific consideration.’ UC Jury Act, 1850, s.45. Three ‘elisors’ (i.e., persons chosen by the court) struck these extra special juries. Each party appointed one elisor, and the clerk of the crown selected the third. The elisors made decisions about potential jurors by examining the jury rolls and marking those who were qualified because of their

Notes to pages 137–40

18 19

20 21 22

23

24 25 26 27 28 29

30 31

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special knowledge. If there were not enough such people on the jury rolls, the elisors could select people they personally knew to have the requisite knowledge. If a disagreement developed between the elisors, they settled it by majority vote. As in ordinary special juries, the elisors selected forty, each party struck off twelve, and then a balloting process reduced the jury from sixteen to twelve. UC Jury Act, 1850, ss.46–47. For an example of the striking of such a jury, see Hooker et al. v. Gurnett (1858), 16 U.C.Q.B. 180. UC Jury Act, 1850, ss.65–73. UC Jury Act, 1850, s.81. The assembly had earlier considered pay to sheriffs for summoning jurors. See Debates of the Legislative Assembly of United Canada, vol. 4, part 1 (1844–45), 1248–50; Debates of the Legislative Assembly of United Canada, vol. 4, part 2 (1844–45), 2118. ‘Upper Canada Jury Bill,’ Toronto Examiner, 31 July 1850, 2. ‘The New Jury Law,’ Perth Courier, 6 September 1850, 4. John Beverley Robinson to Robert Baldwin (1 August 1850), Baldwin Room, Toronto Reference Library, L5, A66–73. Also see John Beverley Robinson to Robert Baldwin (29 October 1850), Baldwin Room, Toronto Reference Library, L5, A66–74. Bruce Curtis, ‘The Canada “Blue Books” and the Administrative Capacity of the Canadian State, 1822–67,’ Canadian Historical Review 74 (1993), 535–65. Circular to Clerks of the Peace, LAC, RG5, C1, vol. 311, no.2111. Clerk of the Peace for Simcoe to James Leslie (23 October 1850), LAC, RG5, C1, vol. 311, no. 2111. Clerk of the Peace for Norfolk to James Leslie (22 November 1850), LAC, RG5, C1, vol. 311, no. 2111. Clerk of the Peace for the County of Norfolk to James Leslie (22 July 1850), LAC, RG5, C1, vol. 301, no. 1405. Perth Courier, 6 September 1850, 2. Clerk of the Peace for the United Counties of Leeds and Grenville to James Leslie (18 September 1850), LAC, RG5, C1, vol. 304, no. 1692. In time, manuals meant to assist municipal officers helped disseminate the act’s requirements. See, for example, Hugh Scobie, Scobie’s Municipal Manual for Upper Canada, 3rd ed. (Toronto: Hugh Scobie 1852); Robert A. Harrison, The New Municipal Manual for Upper Canada (Toronto: Maclear and Co. 1859). Warden of the United Counties of Lanark and Renfrew to James Leslie (12 October 1850), LAC, RG5, C1, vol. 306, no. 1815. Samuel B. Freeman to Robert Baldwin (29 October 1850), Baldwin Room, Toronto Reference Library, L5, A46–27. Also see Samuel B. Freeman to

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36 37 38

Notes to pages 140–2 Robert Baldwin (14 November 1850), Baldwin Room, Toronto Reference Library, L5, A46–28; Samuel B. Freeman to Robert Baldwin (21 December 1850), Baldwin Room, Toronto Reference Library, L5, A46–29; James Jessup to Robert Baldwin (27 November 1850), Baldwin Room, Toronto Reference Library, L5, A54–26. Another example: in one petition, the townreeve, town clerk, and assessor of the township of Oxford in the United Counties of Leeds and Grenville noted that ‘in consequence of neither of your petitioners having received a copy of the new Jury Law and being unable to find one in this section of the country’ they had procured a copy and then ‘diligently proceeded to the best of their ability to comply with the requirements of the Law.’ They had employed a person to transport their township’s jury list thirty-eight miles, but because of bad weather and poor roads, the jury reports arrived too late. The township officials had ‘thereby unintentionally subjected themselves to the penalty prescribed in the Act.’ The petitioners thus asked that the time be extended for accepting their jury lists. Petition from Oxford (6 December 1850), LAC, RG5, C1, vol. 312, no. 2159. Also see Clerk of the Peace for the United Counties of Huron, Perth and Bruce to James Leslie (23 October 1850), LAC, RG5, C1, vol. 311, no. 2111. There was also some confusion regarding the exemption provisions of the 1850 act. See Thomas Eyre to Robert Baldwin (6 November 1850), Baldwin Room, Toronto Reference Library, L5, A44–50; Samuel B. Freeman to Robert Baldwin (14 November 1850), Baldwin Room, Toronto Reference Library, L5, A46–28. An Act to extend the time for making the selection of Jurors, and preparing the Jurors’ Books in Upper Canada in the present year, S.O. 1851, c.112, s.1. Provincial Secretary to Clerks of the Peace (19 August 1852), LAC, RG5, C1, vol. 337, no. 1462. Aggregate Return of Jury Information, Simcoe County (1850), LAC, RG5, C1, vol. 337, no. 1462. Clerk of the peace for United Counties of Lincoln and Welland, LAC, RG5, C1, vol. 361, no. 1127. From Haldimand County came an excuse that the return of jurors was accidentally blotted out. Clerk of the peace for the County of Haldimand to Augustin-Norbert Morin (23 August 1852), LAC, RG5, C1, vol. 361, no. 1127. ‘The Assizes,’ Perth Courier, 27 May 1853, 2. ‘Hamilton Fall Assizes,’ Toronto Globe, 29 October 1857, 2. Bruce Curtis, ‘Class Culture and Administration: Educational Inspection

Notes to page 142

39

40

41 42 43

44

287

in Canada West,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992), 105; Curtis, ‘The Canada “Blue Books” and the Administrative Capacity of the Canadian State,’ 535–65. Bruce Curtis, The Politics of Population: State Formation, Statistics, and the Census of Canada, 1840–1875 (Toronto: University of Toronto Press 2001), 7. Also see Ian Radforth, ‘Sydenham and Utilitarian Reform,’ in Greer and Radforth, eds., Colonial Leviathan, 69. See the records of jury selection held at the Ontario Archives. See, for example, OA, RG22–1882: Essex County Board of Selectors Jurors Minutes; OA, RG22–4592: Prince Edward County Clerk of the Peace jurors’ rolls; OA, RG22–3695: Norfolk County Clerk of the Peace Jurors’ Rolls; OA, RG22–3785: The Northumberland and Durham United Counties Board of Selectors of Jurors’ rolls. See, for example, OA, RG22–3786: Northumberland and Durham United Counties Clerk of the Peace jurors’ roll, File: Jurors’ Book 1851. Aggregate return of Jurors for the County of Simcoe, 1851, LAC, RG5, C1, vol. 311, no. 2111. Aggregate return of Jurors for the County of York, 1851, LAC, RG5, C1, vol. 311, no. 2111. Also see other returns from 1851, including: Aggregate return of Jurors for the United Counties of Prescott and Russell, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the United Counties of Stormont, Dundas, and Glengarry, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of jurors for the United Counties of Lanark and Renfrew, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the United Counties of Leeds and Grenville, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the County of Hastings, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the County of Norfolk, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the County of Prince Edward, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the United Counties of Essex and Lambton, 1851, LAC, RG5, C1, vol. 311, no. 2111. Aggregate return of Jurors for the United Counties of York, Ontario and Peel, 1853, LAC, RG5, C1, vol. 371, no. 1843. Because recent jury duty was a ground for exemption, the act also required that officials keep close track of those who had served. The jurors’ book from Perth County demonstrates how previous service on juries could be recorded. The book was arranged alphabetically. The ‘A’ listing was then divided by year. Thus, in 1854 the clerk listed eight people with last names starting with ‘a’ who had

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45 46

47 48 49

50

Notes to pages 142–3 served as jurors that year. The Perth County jurors’ book also contained a tally of the names entered under each letter from 1854 to 1860. A total of 2,466 people served as jurors in this one county between 1854 and 1860. There is a note saying ‘additional names of 1861,’ suggesting that some names from 1861 might also be included in the tally. OA, RG22–4268–0-2: Perth County Clerk of the Peace Jurors’ Rolls: Perth County Alphabetical List of Jurors, vol. 2, 1854–1882. Aggregate return of Jurors for the County of Norfolk, 1851, LAC, RG5, C1, vol. 311, no. 2111. Aggregate return of Jurors for the County of Prince Edward, 1851, LAC, RG5, C1, vol. 311, no. 2111. Comparing these jury qualifications and the requirements for the franchise provides a sense of the composition of juries under the 1850 legislation. In 1849, the Province of Canada dictated that in rural ridings, male owners of a freehold assessed with a yearly value of forty shillings could vote, while urban residents had to own a plot of land with a dwelling with a yearly value of five pounds, or be an urban tenant who paid an annual rent of ten pounds and had been resident in the city for twelve months. John Garner, The Franchise and Politics in British North America (Toronto: University of Toronto Press 1969), 105; A History of the Vote in Canada, 2nd ed. (Ottawa: Office of the Chief Electoral Officer of Canada 2007), 31. Aggregate Jury Returns, County of Norfolk, 1851, LAC, RG5, C1, vol. 311, no. 2111. Aggregate Jury Returns, United Counties of Stormont, Dundas, and Glengarry, 1851, LAC, RG5, C1, vol. 311, no. 2111. ‘The Assizes,’ Perth Courier, 27 May 1853, 2. Ethnic minorities were not always excluded, however. In discussing the implementation of the 1850 jury act, Charles Treadwell told Robert Baldwin in 1851 that there were English, French, and Gaelic speakers in his area. There were too few English to form the necessary jury lists so some French jurors had been chosen. These men saw their selection ‘as a compliment and have generally attended with the utmost promptness.’ Charles P. Treadwell to Robert Baldwin (13 June 1851), Baldwin Room, Toronto Reference Library, L5, A75–35. William B. McVity to Robert Baldwin (26 December 1850), Baldwin Room, Toronto Reference Library, L5, A61–106. David Murray notes an earlier example of race affecting jury selection. In 1828, at the quarter sessions in Niagara, a potential juror identified as a ‘Blackman’ was not called to serve. David Murray, Colonial Justice: Justice: Morality, and Crime in the Niagara District, 1791–1849 (Toronto: University of Toronto and Osgoode Society 2002), 170.

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51 LAC, RG5, C1, vol. 327, no. 880. 52 Voice of the Fugitive, 21 May 1851, 3. 53 ‘Colored Jurymen in Canada,’ Voice of the Fugitive, 2 July 1851, 2; Robin W. Winks, The Blacks in Canada: A History, 2nd ed. (Montreal: McGill-Queen’s University Press 1997), 251. 54 ‘Black vs. White – A Rich Scene,’ St Thomas Weekly Dispatch, 23 April 1863, 3; ‘White Men Refuse to Serve on a Jury with a Colored Man,’ Simcoe Reformer, 23 April 1863, 3; ‘White Men Refuse to Serve on a Jury with a Colored Man,’ Toronto Globe, 20 April 1863. 55 Murray et al to John A. Macdonald (n.d.), LAC MG26 A, vol.335a, pt. 1, 151503–6. Also see JLA 1871–1872, 226. 56 Circular to the Sheriffs and Clerks of the Peace of Upper Canada, LAC, RG5, C1, vol. 311, no. 2111. 57 Statement of amount received by the Clerk of the Peace for the United Counties of York, Ontario and Peel, for services rendered under the Jury Act, LAC, RG5, C1, vol.311, no. 2111. 58 Sheriff’s detailed statement for the services under the new Jury Act for 1851 in the United Counties of York, Ontario and Peel, (1851), LAC, RG5, C1, vol. 362, no. 1160. 59 Sheriff’s detailed statement for the services under the new Jury Act from February to December 1851 in the United Counties of Northumberland and Durham, LAC, RG5, C1, vol. 362, no. 1160; Sheriff’s detailed statement for the services under the new Jury Act from November 1850 to November 1851 in the United Counties of Peterborough and Victoria, LAC, RG5, C1, vol. 362, no. 1160. 60 Sheriff’s detailed statement for the services under the new Jury Act from November 1850 to December 1851 in the County of Simcoe, LAC, RG5, C1, vol. 362, no. 1160. Also see Letter from sheriff of United Counties of Wentwoth and Halton (24 August 1852), LAC, RG5, C1, vol. 362, no. 1160. 61 Sheriff’s detailed statement for the services under the new Jury Act for 1851 in the County of Hastings, (26 August 1852), LAC, RG5, C1, vol. 362, no. 1160. To limit costs, Prince Edward County reduced unilaterally the number of jurors that had to be summoned. Another county, Peterborough, found itself unable to pay the sheriff his fees. See Sheriff’s detailed statement for the services under the new Jury Act for 1851 in the County of Prince Edward, (26 August 1852), LAC, RG5, C1, vol. 362, no. 1160; Sheriff’s detailed statement for the services under the new Jury Act in the County of Peterborough, (27 August 1852), LAC, RG5, C1, vol. 362, no. 1160.

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Notes to pages 145–6

62 Sheriff’s detailed statement for the services under the new Jury Act from November 1850 to December 1851 in the County of Simcoe, LAC, RG5, C1, vol. 362, no. 1160. 63 Clerk of the peace’s detailed statement for the services under the new Jury Act in the County of Hastings, (26 August 1852), LAC, RG5, C1, vol. 362, no. 1160. 64 Samuel B. Freeman to Robert Baldwin (14 November 1850), Baldwin Room, Toronto Reference Library, L5, A46–28. Also see Samuel B. Freeman to Robert Baldwin (21 December 1850), Baldwin Room, Toronto Reference Library, L5, A46–29. 65 George Gurnett to Robert Baldwin (5 June 1851), Baldwin Room, Toronto Reference Library, L5, A48–74. Also see James Jessup to Robert Baldwin (23 June 1851), Baldwin Room, Toronto Reference Library, L5, A54–27; John McKay to Robert Baldwin (25 January 1851), Baldwin Room, Toronto Reference Library, L5, A61–10; John McKay to Robert Baldwin (7 February 1851), Baldwin Room, Toronto Reference Library, L5, A61–13. For a dispute about the fees of the clerks of the peace see Pringle, Clerk of the Peace v. McDonald, Treasurer of the United Counties of Stormont, Dundas, and Glengary (1852), 10 U.C.Q.B. 254. 66 JLA 1851, 171. 67 An Act to amend the Upper Canada Jurors’ Act of one thousand eight hundred and fifty, and to make some further provisions for the better accomplishment of the object thereof, S.O. 1851, c.65, s.3. The 1851 act also required the selectors to divide the names into four categories along new proportions: they chose one-fifteenth as grand jurors for the superior court, two-fifteenths as grand jurors for the inferior courts, four-fifteenths as trial jurors for the superior court, and eight-fifteenths as trial jurors for the inferior courts. An Act to amend the Upper Canada Jurors’ Act of one thousand eight hundred and fifty, and to make some further provisions for the better accomplishment of the object thereof, S.O. 1851, c.65, schedule A. 68 JLA 1849, 131. 69 Perth Courier, 11 October 1850, 2. 70 JLA 1850, 74, 82. On the other hand, Charles P. Treadwell told Robert Baldwin in June 1851 that the farmers in his area found it ‘difficult in some instances to pay the amount of taxes now levied,’ and thus they had generally informed him that it was ‘better for them to sustain themselves than to increase the taxes to an amount necessary to pay for travel and attendance.’ Charles P. Treadwell to Robert Baldwin (13 June 1851), Baldwin Room, Toronto Reference Library, L5, A75–35. 71 JLA 1851, 32.

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72 JLA 1851, 35; Debates of the Legislative Assembly of United Canada, vol. 10, part 1 (1851), 119. 73 An Act for the payment of Petit Jurors in Upper Canada, S.O. 1851, c.14, s.11. 74 An Act for the payment of Petit Jurors in Upper Canada, S.O. 1851, c.14, ss.7– 10, 12. 75 Report of the Grand Inquest of the County of Carleton (13 October 1852), LAC RG5, C1, vol.455, no. 1440. See also LAC, RG5, C1, vol. 648, no. 426. 76 OA, RG22–2685–0-1: Kent County Sheriff and Clerk of the Peace Jurors’ Book, 1846–1857. 77 Presentment of Perth County Grand Jury (3 May 1853), LAC, RG5, C1, vol. 455, no. 1440. 78 Hamilton Grand Jury Presentment (28 October 1852), LAC, RG5, C1, vol. 455, no. 1440. 79 ‘Hamilton Assizes,’ Toronto Globe, 31 October 1856, 2. Also see, for example, ‘Recorder’s Court,’ Toronto Globe, 7 July 1857, 2; ‘Recorder’s Court,’ Toronto Globe, 8 July 1857, 2; LAC, RG5, C1, vol. 536, no. 536: Grand Jury Panel Quarter Sessions, United Counties of Prescott and Russell, 1859. 80 Jury reports at Quarter Sessions of the Peace (3 January 1854), OA, RG22–2685–0-1: Kent County Sheriff and Clerk of the Peace Jurors’ Book, 1846–1857. 81 The amounts of money at issue also led to disputes between counties and cities about the division of juror costs, which, in turn, led to the passage of legislation and extensive litigation. See An Act to amend the Act to provide for the payment of Jurors in Upper Canada, by providing that a City included within a County for judicial purposes, shall pay a fair proportion of the sum required for the payment of Jurors in such County, S.O. 1855, c.130; Corporation of Frontenac v. Corporation of Kingston (1869), 20 U.C.C.P. 49; The Corporation of the County of Frontenac v. The Corporation of the City of Kingston (1871), 30 U.C.Q.B. 584; ‘Jurors’ Expenses – Arrears due by city for several years – County no right to recover,’ Local Courts’ and Municipal Gazette 6 (1870): 71. 82 JLA 1852–1853, 9, 20, 21, 27, 28, 48, 74, 97, 125, 267, 308, 537. 83 JLA 1852–1853, 26, 27, 87, 89, 172, 518. Municipal councils petitioned the Legislative Council as well as the Assembly. See JLC 1852, 34, 35, 50, 51, 52, 56, 65, 76, 79, 84, 103, 262. Counties also had to ensure that officials did not overcharge for their services. In 1860, the Queen’s Bench considered a case stemming from claims that the sheriff of the County of Haldimand had over-billed for his services under the jury laws. Since 1853, the sheriff had charged for summoning both the panels of the County Court and the Quarter Sessions. He also asked for mileage for summoning each juror ac-

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86 87

88 89 90 91

Notes to pages 148–9

cording to the distance between the courthouse and the residence of the juror. The municipal treasurer had paid these fees without question, despite the fact that the mileage bore no relation to the actual distance travelled by the sheriff or his deputies. The municipal council sued to recover the overcharge. The council also claimed that the sheriff could only charge twenty shillings for summoning one panel, since the jurors on each panel were identical, rather than twenty shillings for the County Court panel and twenty shillings for the Quarter Sessions panel. The court held that the jury act authorized the sheriff to charge for both panels, but that he was entitled only to the mileage actually travelled to summon the jurors. The Corporation of the County of Haldimand v. Martin, Sheriff (1860), 19 U.C.Q.B. 178. For another dispute concerning the mileage charged by sheriffs see In the Matter of George Davidson, Sheriff of the County of Waterloo, and the Court of Quarter Sessions in and for the County of Waterloo (1863), 22 U.C.Q.B. 405; In the Matter of Davidson, Sheriff of, and Miller, Chairman of the Quarter Sessions for, the County of Waterloo (1864), 24 U.C.Q.B. 66. ‘The Expensive Jury Law. – Government – What Is It?’ North American Semi-Weekly, 12 March 1852, 2. The treasurer of the United Counties of York, Ontario and Peel reported paying a total of 1042 pounds in fees in 1851 because of the 1850 jury act. ‘The Municipal Council of the United Counties of York, Ontario and Peel,’ Toronto Examiner, 11 February 1852, 3. For examples of county jury costs for the United Counties of Lanark and Renfrew, see ‘Minutes of October Sessions,’ Perth Courier, 31 October 1851, 1; ‘Statement in Detail,’ Perth Courier, 22 January 1858, 3; ‘Statement in Detail,’ Perth Courier, 19 November 1858, 3; ‘Statement in Detail of Receipts and Expenditures,’ Perth Courier, 4 January 1861, 1–2. ‘The Expensive Jury Law. – Government – What Is It?’ North American Semi-Weekly, 12 March 1852, 2. Emphasis in original. ‘Accounts of the County of Elgin for 1855,’ St Thomas Weekly Dispatch, 27 March 1856, 3. Also see ‘Detailed Statement of the County Treasurer of Elgin,’ St Thomas Weekly Dispatch, 20 March 1862, 1. LAC, RG14, C1, vol. 3, no. 399 (2 July 1854). Also see LAC, RG5, C1, vol. 460, no. 35 (20 December 1855). JLA 1852–53, 284. An Act to amend the Upper Canada Jurors’ Act of one thousand eight hundred and fifty, and to repeal certain parts thereof, S.O. 1853, c.120, ss.2–3. Aggregate return of Jurors for the County of Norfolk, 1851, LAC, RG5, C1, vol. 311, no. 2111; Aggregate return of Jurors for the County of Norfolk,

Notes to pages 149–50

92

93

94

95

96 97 98 99

100 101

293

1853, LAC, RG5, C1, vol. 371, no. 1843; Aggregate return of Jurors for the County of Norfolk, 1854, LAC, RG5, C1, vol. 396, no. 1588. Aggregate return of Jurors for the United Counties of Leeds and Grenville, 1853, LAC, RG5, C1, vol. 371, no. 1843; Aggregate return of Jurors for the United Counties of Leeds and Grenville, 1854, LAC, RG5, C1, vol. 396, no. 1588. Aggregate return of Jurors for the United Counties of York, Ontario, and Peel, 1853, LAC, RG5, C1, vol. 371, no. 1843; Aggregate return of Jurors for the United Counties of York, Ontario, and Peel, 1854, LAC, RG5, C1, vol. 396, no. 1588. An Act to amend the Upper Canada Jurors’ Act of one thousand eight hundred and fifty, and to repeal certain parts thereof, S.O. 1853, c.120, s.9(2). Attorney General Richards acknowledged that this would displease these officials, but he believed that if the clerks of the peace, for example, refused to perform their duties, then other officials would gladly receive fees for these tasks. Debates of the Legislative Assembly of United Canada, vol. 11, part 3 (1852–53), 1645. Donald Fyson, The Court Structure of Quebec and Lower Canada, 1764 to 1860 (Montreal: Montreal History Group 1994); J.I. Little, State and Society in Transition: The Politics of Institutional Reform in the Eastern Townships, 1838–1852 (Montreal: McGill-Queen’s University Press 1997), 63. W.K. McCord, circuit judge of the District of Quebec, noted the problems of jury travel in writing to the provincial secretary in January 1845. He said that some citizens were subjected to a ‘heavy expense’ when called as jurors, as they were summoned ‘sometimes from a distance of one hundred and eighty miles, and this without any remuneration.’ Letter from W. King McCord to D. Daly (1 January 1845), JLA 1846, 226. JLA 1846, 240; Debates of the Legislative Assembly of United Canada, vol. 5, part 1 (1846), 99; part 2, 1440, 1828. JLA 1846, 163; JLA 1849, 116, 199; JLA 1850, 12, 13, 28; JLA 1851, 37, 52, 61; JLA 1854–1855, 26, 98, 146, 170, 181, 227, 280. Debates of the Legislative Assembly of United Canada, vol. 11, part 2 (1852– 1853), 975, 975–6. Debates of the Legislative Assembly of United Canada, vol. 12, part 5 (1854– 1855), 1900. Also see Debates of the Legislative Assembly of United Canada, vol. 12, part 5 (1854–1855), 2047–8. Debates of the Legislative Assembly of United Canada, vol. 12, part 8 (1854– 1855), 3681. J.M.S. Careless, ‘George Brown,’ DCB, 10: 91–103.

294

Notes to pages 150–2

102 Debates of the Legislative Assembly of United Canada, vol. 12, part 8 (1854– 1855), 3681. 103 Ibid., 3697; An Act to provide temporarily for the payment of Petty Jurors in Lower Canada, and to make better provisions for the payment of certain judicial officers in that part of the Province, S.Q. 1855, c.98. 104 ‘The Work of the Session,’ Perth Courier, 15 June 1855, 2. Emphasis in original. A statement of expenses and receipts for the United Counties of Lanark and Renfrew in 1857 indicates that the total cost of the jury system for the county was over 822 pounds, or roughly 10 per cent of the counties’ annual expenditures. ‘Statement in Detail,’ Perth Courier, 19 November 1858, 3. 105 ‘Dissolution of the Union,’ St. Thomas Weekly Dispatch, 23 August 1855, 2. Also see ‘Opening of Parliament,’ Perth Courier, 5 March 1858. 106 An Act to provide temporarily for the payment of Petty Jurors in Lower Canada, and to make better provisions for the payment of certain judicial officers in that part of the Province, S.Q. 1855, c.98, s.3. In 1856, a member of the Assembly asked the government whether they intended to provide 5,000 pounds to the jurors of Upper Canada. Attorney General Drummond said that this would be done, but the method of distribution was still under consideration. Debates of the Legislative Assembly of United Canada, vol. 13, (1856), 448. In 1858, another member asked if the government intended to provide money for the payment of jurors in Upper Canada. Attorney General Macdonald said no. Canada: Legislative Assembly, 1858 Debates, LAC, RG14, C9, 101. 107 LAC, RG14, C1, vol. 30, no. 923 (25 February 1856). 108 LAC, RG14, C1, vol. 70, no. 70 (9 March 1858). Also see LAC, RG14, C1, vol. 76, no. 430 (22 March 1858); LAC, RG14, C1, vol. 86, no. 1108 (25 June 1858); LAC, RG14, C1, vol. 86, no. 1142 (18 June 1858); JLA 1858, 22, 198, 219, 260, 359, 488. 109 Debates of the Legislative Assembly of United Canada, vol. 13, part 4 (1856), 1921–3; An Act to amend so much of the Upper Canada Jurors’ Law Amendment Act of 1853, as fixes the amount of Fees payable to Sheriffs and Clerks of the Peace, S.O. 1856, c.92. 110 JLA 1858, 5, 185. 111 Denis Smith, ‘Sidney Smith,’ DCB, 11: 837–8. 112 LAC, RG14, C9: Canada: Legislative Assembly, Debates, 1858, 45. 113 According to the new legislation, the committee then placed the names drawn into four categories of jurors: one-twelfth as grand jurors for the superior courts; two-twelfths as grand jurors for the inferior courts; threetwelfths as petit jurors for the superior courts, and six-twelfths as petit

Notes to pages 152–4

114 115 116 117 118

119 120 121

122 123 124

125 126

295

jurors for the inferior courts. An Act to amend and consolidate the Jury Laws of Upper Canada, S.O. 1858, c.100, ss.18, 20–21. The act also made several minor changes. For example, it expanded the list of those excused from jury duty. It added newspaper editors, reporters and printers, anyone employed in the management or operation of railways, and telegraph operators. An Act to amend and consolidate the Jury Laws of Upper Canada, S.O. 1858, c.100, s.7. An Act to amend and consolidate the Jury Laws of Upper Canada, S.O. 1858, c.100, ss.43–47. An Act to amend and consolidate the Jury Laws of Upper Canada, S.O. 1858, c.100, ss.49, 51, 80–1, 91–2. Quoted in Lillian F. Gates, After the Rebellion: The Later Years of William Lyon Mackenzie (Toronto: Dundurn Press 1988), 296. ‘The Jury Bill,’ Toronto Globe, 12 August 1858, 2. The topics of the petitions were recorded in the journals of the Assembly however. See JLA 1859, 156, 306; JLA 1860, 99, 158; JLA 1861, 44, 57, 59, 126; JLA 1862, 15, 21, 26, 107, 156, 176; JLA 1863, 34; JLA 1864, 88. LAC, RG14, C1, vol. 132, no. 105 (9 March 1861). LAC, RG14, C1, vol. 132, no. 123 (11 March 1861). LAC, RG14, C1, vol. 138, no.371 (16 April 1861). Also see, for example, LAC, RG14, C1, vol. 148, no. 55 (10 February 1862); LAC, RG14, C1, vol. 148, no. 66 (26 March 1862); LAC, RG14, C1, vol. 149, no. 120 (12 February 1862); LAC, RG14, C1, vol. 151, no. 230 (7 April 1862); LAC, RG14, C1, vol. 171, no. 244 (2 March 1863); LAC, RG14, C1, vol. 172, no. 274 (11 February 1863). Also see petitions in LAC, RG13, A-2, vol. 6, file 1862–217. JLA 1860, 256. This figure excludes Lincoln County. The fees to clerks of the peace exclude Perth County, which did not report the fees paid. Perth County and Haldimand County failed to report fees paid to sheriffs. Abstract of Jury Returns, JLA 1860, Sessional Papers, no. 44. The government ordered a similar tally in 1861. JLA 1861, 50, 224; JLA 1861, Sessional Papers, no. 27. JLA 1861, 86; LAC, RG14, C9: Canada: Legislative Assembly, Debates, 1861 (4 April 1861), 25. Bill: an act to amend section one hundred and fifty-nine of chapter thirty-one of the Consolidated statutes for Upper Canada, respecting jurors and juries, CIHM, no.9_02906; LAC, RG14, C9: Canada: Legislative Assembly, Debates, 1861 (1 May 1861), 85–6; ‘Great Meeting at Fort Stanley,’ St Thomas Weekly Dispatch, 27 June 1861, 1.

296

Notes to pages 154–7

127 LAC, RG14, C9: Canada: Legislative Assembly, Debates, 1861 (8 May 1861), 97–8. 128 JLA 1861, 260–5. 129 LAC, RG14, C9: Canada: Legislative Council, Debates, 1862 (25 April 1862); LAC, RG14, C9: Canada: Legislative Assembly, Debates, 1862 (14 May 1862), 98; ‘The New Jury Bill,’ Perth Courier, 23 May 1862, 2. 130 Paul Romney, ‘From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture,’ Law and History Review 7 (1989), 121–74. 131 ‘A Strange Decision,’ Hamilton Evening Times, 14 September 1864, 1. Also see Hamilton Evening Times, 15 September 1864, 1. 132 ‘Trial by Jury and the Fenian Prisoners,’ Ottawa Times, 16 November 1866, 2. 133 ‘Ibid. 134 Perth Courier, 11 October 1850, 2. Other commentators also mocked the ability of farmers to serve as jurors. For example, in 1864 the St Catharines Constitutional printed a humorous story in which an ‘unsophisticated countryman’ told a group of lawyers that he was juror. He said he did not know whether he sat on the grand or petit jury, and when asked if the judge had charged him, the country bumpkin replied that ‘the little fellow that sits up in the pulpit and kinder bosses over the crowd, gin us a talk, but I don’t know whether he charged or not!’ The lawyers broke into laughter. ‘A Green Juryman,’ St Catharines Constitutional, 7 July 1864, 4. Also see The Canadian News, 24 December 1868, 12; Local Courts’ and Municipal Gazette 2 (1866), 146. 135 ‘Law Reform,’ Hamilton Evening Times, 17 October 1863, 2. 136 Desmond H. Brown, ‘Sir James Robert Gowan,’ DCB, 13: 391–5; A.H.U. Colquhoun, ed., The Hon. James R. Gowan, C.M.G., Q.C., LL.D., Member of the Canadian Senate: A Memoir (Toronto: N.p. 1894), 53–4. 137 ‘Trial by Jury,’ Upper Canada Law Journal 2 (1856), 173–4. 138 The defendants offered affidavits from some of the jurors as proof, but Chief Justice John Beverley Robinson refused to receive and act upon affidavits since the jury ‘must be assumed to know the law in so cardinal a point of their duty.’ Regina v. George Byron Lyon Fellowes et al. (1859), 19 U.C.Q.B. 48 at 50. And see ‘Court of Queen’s Bench,’ Toronto Globe, 30 November 1859, 2. 139 ‘Beauties of Trial by Jury,’ St Catharines Constitutional, 24 November 1864, 2. 140 ‘The Maitland Distillery Case,’ St Catharines Constitutional, 18 January 1866, 2.

Notes to pages 157–9 141 142 143 144 145

146 147 148 149 150

151

152

297

‘Trial by Jury,’ St Catharines Constitutional, 17 May 1866, 2. ‘Trial by Jury,’ Toronto Globe, 4 September 1865, 2. LAC, RG14, C1, vol. 117, no. 402. ‘Law Reforms of the Session. – General Review,’ Upper Canada Law Journal 4 (1858), 107. On Robinson see Robert E. Saunders, ‘Sir John Beverley Robinson,’ DCB, 9: 668–79; Bernard J. Hibbitts, ‘Progress and Principle: The Legal Thought of Sir John Beverley Robinson,’ McGill Law Journal 34 (1989), 454–529; David Howes, ‘Property, God and Nature in the Thought of Sir John Beverley Robinson,’ McGill Law Journal 30 (1984), 365–414. Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto: University of Toronto and Osgoode Society 1984), 169–70. Sanderson & Murray v. The Kingston Marine Railway Company (1848), 4 U.C.Q.B. 340. Kerby v. Lewis et al. (1844), 1 U.C.Q.B. 66 at 70. Sutherland v. Black (1853), 10 U.C.Q.B. 515 at 518. Sutherland v. Black (1853), 11 U.C.Q.B. 243. Also see Case v. Benway (1859), 18 U.C.Q.B. 476; Smith v. McKay (1852), 10 U.C.Q.B. 613; Smith v. McKay (1853), 11 U.C.Q.B. 111. American judges in the nineteenth century were also increasingly willing to overturn the decisions of trial juries and order new trials. See Renee B. Lettow, ‘New Trial for Verdict against Law: Judge-Jury Relations in Early Nineteenth-Century America,’ Notre Dame Law Review 71 (1996), 505–53. Robinson’s willingness to do justice in particular cases had its limits, however. For example, he refused on several occasions to consider affidavits alleging improper jury behaviour. The judges of Upper Canada also considered the size of the damages in determining whether to grant a new trial. This ‘trifling matter doctrine’ was grounded on practical concerns, rather than legal principles: it was the view that judges should be reluctant to grant new trials if the amount at issue was small. See Regina v. George Byron Lyon Fellowes et al. (1859), 19 U.C.Q.B. 48; Jones v. Duff (1848), 5 U.C.Q.B. 143; Doe dem. John Silas Hagerman v. Strong & Young (1850), 8 U.C.Q.B. 291; Creighton v. Chambers (1856), 6 U.C.C.P. 282; Harvey Fowler, Sen. v. McDonald (1846), 3 U.C.Q.B. 385; Lane et al. v. Jarvis (1848), 5 U.C.Q.B. 127; Phillips v. Hutchinson (1856), 13 U.C.Q.B. 136; Sherwood v. Gibson (1848), 5 U.C.Q.B. 205; Maddock v. Glass (1848), 5 U.C.Q.B. 229; Day v. Hagarman (1848), 5 U.C.Q.B. 451; Patterson v. Reardon (1850), 7 U.C.Q.B. 326; Curtis and Wife v. Jarvis (1853), 10 U.C.Q.B. 466. ‘Juries,’ Tillsonburg Observer, 12 November 1868, 2. Also see ‘Juries,’ Tillsonburg Observer, 3 December 1868, 2.

298

Notes to pages 159–62

153 ‘The Quebec Jury Affair,’ Perth Courier, 5 August 1853, 2; ‘The Quebec Jury Affair,’ Perth Courier, 19 August 1853, 2; Robert Sylvain, ‘Sejour Mouvemente d’un Revolutionnaire Italien à Toronto et à Québec,’ Revue d’ Histoire de L’Amérique Française 13, no. 2 (1959/60), 183–229; Robert Sylvain, ‘Le 9 Juin 1853 à Montréal: Encore l’affaire Gavazzi,’ Revue d’Histoire de l’Amérique Française 14 (1960/61), 173–216. 154 Philippe Sylvain, ‘Robert Corrigan,’ DCB, 8: 169–71; Michael S. Cross, ‘“The Laws Are Like Cobwebs”: Popular Resistance to Authority in Mid-Nineteenth-Century British North America,’ in Peter Waite, Sandra Oxner, and Thomas Barnes, eds., Law in a Colonial Society: The Nova Scotia Experience (Toronto: Carswell 1984), 116–18. For a contemporary account, see The True Particulars of the Awful Death of Mr. R. Corrigan, farmer in St. Sylvester at the cattle show held October 17, 1855, as revealed at the trial of Richard Kelly, Francis Donaghue, Patrick Donaghue, George Monaghan, Patrick O’Neill, John McCaffrey, and George Bannon, charged with the crime of murder, before the Court of Queen’s Bench, Quebec (Quebec: R. Middleton 1856). 155 Donald Swainson, ‘John Hillyard Cameron,’ DCB, 10: 118–24. 156 Debates of the Legislative Assembly of United Canada, vol. 13, part 2 (1856), 641–51, 666–70, 680–715, 761; part 3, 1168. 157 JLA 1857, App. 45. 158 ‘The St. Sylvester Murder,’ Perth Courier, 7 March 1856, 2. 159 ‘Justice in Lower Canada,’ Toronto Globe, 11 February 1857, 2. 160 ‘The Roman Catholic Triumph in Nova Scotia,’ Toronto Globe, 7 March 1857, 2. The Globe was also not impressed by the commission’s report. ‘The Corrigan Commission,’ Toronto Globe, 17 August 1857, 2. 161 Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press 2000), 421. 162 ‘Trial by Jury,’ Toronto Globe, 4 September 1865, 2. 163 Nancy Kay Parker, ‘Reaching a Verdict: The Changing Structure of Decision-Making in the Canadian Criminal Courts, 1867–1905’ (PhD diss., York University 1999), 243–4. 164 Debates of the Legislative Assembly of United Canada, vol. 9, part 2 (1850), 1253; Elizabeth Gibbs, ‘William Badgley,’ DCB, 11: 40–2. 165 Debates of the Legislative Assembly of United Canada, vol. 9, part 2 (1850), 1254. 166 The number of lawyers in Upper Canada grew from 460 in 1857 to 875 in 1870. Elizabeth Bloomfield, ‘Lawyers as Members of Urban Business Élites in Southern Ontario, 1860 to 1920,’ in Carol Wilton, ed., Essays in the History of Canadian Law, vol. 4, Beyond the Law: Lawyers and Business in

Notes to pages 162–4

167 168

169

170 171

172

173

174 175

176 177 178

299

Canada, 1830–1930 (Toronto: University of Toronto Press and the Osgoode Society 1990), 113. Also see G. Blaine Baker, ‘‘‘So Elegant a Web”: Providential Order and the Rule of Secular Law in Early-Nineteenth-Century Upper Canada,’ University of Toronto Law Journal 38 (1988), 183–205; Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797–1997 (Toronto: University of Toronto Press 1997), 107–8. Allan Greer and Ian Radforth, ‘Introduction,’ in Greer and Radforth, eds., Colonial Leviathan, 6. Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 108. Also see R.D. Gidney and W.P.J. Millar, Professional Gentlemen: The Professions in Nineteenth-Century Ontario (Toronto: University of Toronto Press 1994), 65. Carol Wilton, ‘Introduction: Beyond the Law – Lawyers and Business in Canada, 1830 to 1930,’ in Wilton, ed., Essays in the History of Canadian Law, vol. 4, 13. Wilton, ‘Introduction: Beyond the Law,’ 6. John C. Weaver, Crimes, Constables, and Courts: Order and Transgression in a Canadian City, 1816–1870 (Montreal: McGill-Queen’s University Press 1995), 162. Desmond H. Brown, ‘Sir James Robert Gowan,’ DCB, 13: 391–5; A.H.U. Colquhoun, ed., The Hon. James R. Gowan, C.M.G., Q.C., LL.D., Member of the Canadian Senate: A Memoir (Toronto: N.p. 1894), 26–7, 32–5; Henry H. Ardagh, Life of Hon. Sir James Robert Gowan (Toronto: University of Toronto Press 1911), 8–13, 16–18. Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: University of Toronto Press and Osgoode Society 1986), 214–25. Also see Philip C. Stenning, Appearing for the Crown: A Legal and Historical Review of Criminal Prosecutorial Authority in Canada (Cowansville, QC: Brown Publications Limited 1986). Parker, ‘Reaching a Verdict,’ 243. For example, the Toronto Globe argued in January 1854 that in government prosecutions ‘the Grand Jury system is absolutely essential to prevent tyrannical prosecutions upon slight grounds. Woe to the public writer if, at every word printed against an administration, he could be brought before the courts.’ ‘The Advantages of Grand Juries,’ Toronto Globe, 9 January 1854, 2. See, for example, Lewis Barwell to John A. Macdonald (10 December 1861), LAC, RG13, series A-2, vol. 6, file 1861–1000. ‘Abuse of the Grand Jury System,’ Upper Canada Law Journal 5 (1859), 51. An Act to prevent vexatious Indictments for certain Misdemeanors, S.O. 1861, c.10; Romney, Mr Attorney, 300.

300

Notes to pages 164–5

179 LAC, RG5, C1, vol. 455, no. 1440. Grand jurors at the Toronto fall assizes of 1858 also urged that the scope of summary proceedings be increased to save the valuable time of the grand jury. ‘It is to be deplored that such cases as the theft of a can of oyster or a few keys should occupy the time of the Jurors,’ argued the jury, thus incurring the ‘heavy costs of this court, when they might be dealt with satisfactorily and summarily before the Police Magistrate.’ ‘Toronto Fall Assizes,’ Markham Economist, 18 November 1858, 3. Complaints about the inconvenience of grand jury service also led to appeals to pay grand jurors at the Recorder’s Courts. In 1859 grand jurors of the Recorder’s Court of Toronto asked for juror pay since many persons required to serve were ‘quite unable to lose the time’ as ‘their daily earnings’ were ‘barely sufficient for the sustenance of their families.’ LAC, RG5, C1, vol. 616, no. 695 (8 April 1859). Also see ‘Recorder’s Court,’ Toronto Globe, 10 April 1858, 3. The judiciary was aware of the grand jurors’ concern with their time. For instance, at the Recorder’s Court in Hamilton in 1863, the judge expressed his willingness to advise jurors in order to facilitate the court’s business so that the jurors ‘might be detained from their usual avocations as short a time as possible.’ ‘Recorder’s Court,’ Hamilton Evening Times, 2 March 1863, 3. Also see LAC RG5, C1, vol. 616, no. 695; Presentment of the grand jury of the United Counties of York and Peel, LAC, RG5, C1, vol. 638, no. 24; Toronto Grand Jury Presentment (23 October 1860), LAC, RG5, C1, vol. 668, no. 1361; ‘Presentment of the Grand Jury of the Assizes,’ Toronto Globe, 1 May 1865, 1; ‘Winter Assizes,’ Toronto Globe, 21 December 1865, 1; ‘Recorders’ Court,’ Toronto Globe, 9 March 1866, 2. In the 1840s and 1850s, grand juries in England also complained of their ‘inutility.’ A number of bills to eliminate grand juries in England were introduced in the nineteenth century, though none became law. See David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press 1998), 133. 180 LAC, RG14, C1, vol. 151, no. 230. 181 JLA 1860, 77, 451, 461. 182 ‘Abolition of Grand Jurors in Recorder’s Courts,’ Thompson’s Mirror of Parliament, 15 March 1860, 5 in LAC, RG14, C9: Canada: Legislative Assembly, Debates; Donald Swainson, ‘Sir Alexander Campbell,’ DCB, 12: 150–4. 183 Law Reform Act, S.O. 1868, c.6, ss.10–16; Weaver, Crimes, Constables, and Courts, 80–1. 184 ‘Bill of Rights,’ North American Semi-Weekly, 5 July 1850, 1. 185 JLA 1851, 56, 100, 214. 186 JLA 1852–53, 105; Elwood H. Jones, ‘Rowland Burr,’ DCB, 9: 109–10. The

Notes to pages 165–6

187 188

189

190 191

192

301

argument against juries using the example of the Division Court was common. For example, in 1850, the Toronto Globe argued that the Division Courts should have their powers extended, and that the assessing of damages by juries ‘ought to be done away entirely’ in all civil cases unless one of the parties demanded a jury. ‘Lawyers and Law Costs,’ Toronto Globe, 28 February 1850, 2. Brown, ‘Sir James Robert Gowan,’391–5. An Act to repeal the Laws now in force in that part of this Province, formerly Upper Canada, for the recovery of Small Debts, and to make other provisions therefor, S.O. 1841, c.3, ss.29–34; Western Herald, 11 November 1841, 1; Paul Romney, ‘Upper Canada (Ontario): The Administration of Justice, 1784–1850,’ Manitoba Law Journal 23 (1996), 196; Margaret A. Banks, ‘The Evolution of the Ontario Courts, 1788–1981,’ in David H. Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: University of Toronto Press and Osgoode Society 1983), 509–10. Upper Canada Law Journal 2 (1856), 174, 175. George M. Boswell, judge for the United Counties of Northumberland and Durham, suggested in 1850 that juries were ‘scarcely ever required’ in the Division Courts. He reported that in Northumberland and Durham jury cases ‘barely average one in three hundred and fifty.’ G.M. Boswell, Law Reform in the Inferior Courts: In a Letter Addressed to The Honourable Robert Baldwin, Attorney General (Cobourg: Star and Gazette Office 1850), 6. The Upper Canada Law Journal’s use of the Division Courts as an example of why juries had become unnecessary is similar to the argument in England that County Courts, established in 1846, illustrated that the use of juries could be reduced. See Conor Hanly, ‘The Decline of Civil Jury Trial in Nineteenth-Century England,’ Journal of Legal History 26 (2005), 269–74. ‘Vice Chancellor Mowat,’ Upper Canada Law Journal 10 (1864), 309. In 1858, Mowat opposed extending the summary criminal jurisdiction of the Recorder’s Court. ‘Provincial Parliament,’ Toronto Globe, 22 May 1858, 2. Paul Romney, ‘Sir Oliver Mowat,’ DCB, 13: 724–42. Upper Canada established the Court of Chancery in 1837, and allowed it to refer factual disputes to the common law courts for determination by a jury. Romney, Mr Attorney, 297; An Act to Establish a Court of Chancery in this Province, S.O. 1837, c.2. Also see An Act Respecting the Courts of Chancery, R.S.O. 1877, c.40, s.99. Mowat would serve as vice-chancellor of the Upper Canada Court of Chancery from 1864 until he returned to politics in 1872. A. Margaret Evans, ‘Oliver Mowat: Vice-Chancellor of Upper Canada, 1864–72,’ Ontario History 71 (1979), 75–83; A Margaret Evans, Sir Oliver Mowat (Toronto: University of Toronto Press 1992), 46–65.

302

Notes to pages 166–8

193 Canada, Legislative Assembly, Debates (7 March 1859), LAC, RG14, C9. 194 Joseph Hartman interjected to point out that there had been one – Rowland Burr’s 1852 petition. 195 J.K. Johnson, ‘John A. Macdonald,’ in J.M.S. Careless, ed., The Pre-Confederation Premiers: Ontario Government Leaders, 1841–1867 (Toronto: University of Toronto Press 1980), 228. 196 Canada, Legislative Assembly, Debates (7 March 1859), LAC, RG14, C9. 197 See, for example, ‘Toronto Winter Assizes,’ Toronto Globe, 19 January 1857, 2; ‘Toronto Winter Assizes,’ Toronto Globe, 24 January 1857, 2; ‘The Asylum Libel Case,’ Toronto Globe, 25 April 1857, 2; ‘The Third Libel Case,’ Toronto Globe, 12 May 1857, 2; ‘The Burning of the ‘Montreal’,’ Toronto Globe, 9 February 1858, 3; ‘The Georgina Murder,’ Toronto Globe, 30 October 1858, 2; St Catharines Constitutional, 15 January 1863, 2; ‘Toronto Fall Assizes,’ Toronto Globe, 4 October 1864, 1; ‘Trial by Jury,’ Toronto Globe, 4 September 1865, 2; Ottawa Times, 28 December 1866, 2. 198 According to Robinson, the failure of the jurors to agree meant that prisoners spent more time in jail, and all parties concerned with the operation of the courts were subjected to wasted time and expense. Robinson was against eliminating the unanimity rule altogether, though he suggested that some form of majority vote might be sufficient to render a verdict if a jury failed to reach a unanimous verdict after a certain amount of time. ‘Toronto Winter Assizes,’ Toronto Globe, 7 January 1859, 2. 199 As early as 1850, however, a committee of the municipal council for the United Counties of Lanark and Renfrew resolved that ‘the requiring of Jurors to be unanimous in their verdicts, is unreasonable.’ Perth Courier, 11 October 1850, 2. 200 ‘Recorder’s Court,’ Toronto Globe, 9 April 1857, 2. 201 ‘Judicious Suggestion,’ Toronto Globe, 15 April 1857, 7. For another example of the Globe’s strong endorsement of ending the unanimity rule see ‘The Georgina Murder,’ Toronto Globe, 30 October 1858, 2. The grand jury of the County of Perth in its assizes presentment in March 1861 also suggested getting rid of unanimity rule in favour of majority verdicts. LAC, RG5, C1, vol. 675, no. 266. 202 Petition from the Toronto Board of Trade (8 May 1857), LAC, RG14, C1, vol. 62, no. 1075. 203 ‘Unanimity of Jurors,’ Upper Canada Law Journal 4 (1857), 96, 97. 204 ‘Provincial Parliament,’ Toronto Globe, 16 April 1857, 2; ‘Hon. J. Patton, LL.D, M.L.C.,’ in Henry J. Morgan, Sketches of celebrated Canadian and persons connected with Canada: from the earliest period in the history of the province down to the present time (Montreal: R. Worthington 1865), 639–41.

Notes to pages 168–70

303

205 Canada: Legislative Council, Debates (21 April 1857): LAC, RG14, C9, 1857, 61. 206 Canada: Legislative Council, debates (21 April 1857): LAC RG14 C9, 1857, 61; Canada: Legislative Assembly, Debates (19 May 1857): LAC, RG14, C9, 1857, 105; ‘Legislative Council,’ Toronto Globe, 3 March 1858, 2; Bill: an act to allow verdicts on trials by jury in civil causes to be returned although the jury may not be unanimous, CIHM, no.9_07472. 207 Canada: Legislative Council, Debates (15 March 1858), LAC, RG14, C9, 1858, 38. Also see ‘Legislative Council,’ Toronto Globe, 19 March 1858, 2. The Toronto Globe threw its weight behind the bill, repeating many of the arguments put forward by the bill’s supporters in the council. ‘Unanimous Verdict Against the Ministry!’ Toronto Globe, 20 March 1858, 3. 208 JLA 1858, 158, 473–4. 209 ‘Trial by Jury,’ Upper Canada Law Journal 5 (1859), 52. 210 JLA 1859, 87; Bill: an act to allow verdicts on trials by jury in civil causes to be returned although the jury may not be unanimous, CIHM, no.9_07800. 211 Canada: Legislative Assembly, Debates, (10 March 1859), LAC, RG14, C9, 1859. 212 Canada: Legislative Assembly, Debates (25 April 1859), LAC, RG14, C9; ‘Provincial Parliament,’ Hamilton Evening Times, 26 April 1859. 213 ‘Verdicts of Juries,’ Thompson’s Mirror of Parliament, no. 22 (28 March 1860), 7, in Canada: Legislative Council, Debates (28 March 1860), LAC, RG14, C9; JLA 1860, 133. 214 Canada: Legislative Council, Debates (22 March 1861), LAC, RG14, C9, 11. 215 JLA 1861, 49, 68. But see ‘Unanimity in Juries,’ Local Courts’ and Municipal Gazette 2 (1866), 53–4. 216 ‘Hamilton Assizes,’ North American Semi-Weekly, 4 June 1852, 2; ‘Action for Libel, Slander, &c.,’ North American Semi-Weekly, 8 June 1852, 2. 217 For example, in 1852 the Toronto Globe complained that the Crown had improperly used its right to challenge jurors. ‘Challenging Jurors,’ Toronto Globe, 7 December 1852, 2. Similarly, in the trial of a ‘Tory mob’ in 1861 for a riot in Cobourg, the Perth Courier alleged that challenges were used ‘to exclude all Reformers from the Jury,’ and a ‘picked Jury of political partizans was thus secured.’ ‘The Cobourg Riot,’ Perth Courier, 25 October 1861, 2. In another case a few years earlier, it was charged that defendants had used challenges to secure an Orange jury. ‘A Face of Orangeism,’ Markham Economist, 20 May 1858, 2. Such concerns led to the introduction in 1860 of a bill to change the colony’s jury challenging laws. Proponents of the legislation hoped to ensure that juries came to verdicts according to

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the evidence by preventing litigants from carefully stacking juries in their favour. Lawyer Alexander Campbell argued in the legislative council that defendants’ ability to peremptorily challenge twenty potential jurors out of a panel of forty-eight meant that the defendant had ‘virtually the selection of those who were to try him,’ and could ‘exclude any jurors whom he considered likely to give a fair and honest verdict.’ The right was used ‘to the great contempt of justice.’ ‘Challenging of Jurors,’ Thompson’s Mirror of Parliament (15 March 1860), 6, in LAC, RG14, C9: Canada: Legislative Council, Debates. And see ‘Challenging Juries,’ Thompson’s Mirror of Parliament (12 April 1860), 3, in LAC, RG14, C9: Canada: Legislative Assembly, Debates. The Assembly and Council received petitions in support of the bill from several members of the bar of Upper Canada; these lawyers believed challenges were prejudicial to the due administration of justice because their use meant that juries were ‘often chiefly composed of persons disposed to sympathize with the accused.’ The bill, however, did not become law. LAC, RG14, C1, vol. 117, nos. 423–7 (3 April 1860); JLC 1860, 106; JLA 1860, 132. 218 Bruce Curtis, True Government by Choice Men? Inspection, Education, and State Formation in Canada West (Toronto: University of Toronto Press 1992). 219 Between 1842 and 1856, government expenditures from the consolidated revenue fund increased by 195 per cent. Michael Piva, The Borrowing Process: Public Finance in the Province of Canada, 1840–1867 (Ottawa: University of Ottawa Press 1992), 119–20. 7: ‘We Have Now No Fears of Star Chamber Justice’: The Decline of the Jury in Nova Scotia 1 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, ss.91(27), 92(14). 2 In modern jury selection, the federal power over criminal procedure now begins when the judge’s activity is not concerned with the assembly of an array of eligible citizens but rather with the precautions necessary to ensure an impartial jury. See Criminal Code, R.S.C. 1985, c.46, ss.629–44. 3 Speedy Trials Act, S.C. 1869, c.35. 4 Nancy Ray Parker, ‘Reaching a Verdict: The Changing Structure of Decision-Making in the Canadian Criminal Courts, 1867–1905’ (PhD diss., York University 1999), 47–8. 5 Desmond H. Brown, ‘Sir James Robert Gowan,’ DCB, 13: 391–5. 6 Jonathan Swainger, The Canadian Department of Justice and the Completion of Confederation, 1867–78 (Vancouver: UBC Press 2000), 14.

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7 Canada, Hansard, 21 May 1869, 419–21; Bruce W. Hodgins, ‘John Sandfield Macdonald,’ DCB, 10: 462–9. 8 See, for example, ‘The Assizes,’ Toronto Globe, 11 January 1870, 4. 9 An Act respecting the County Judges’ Criminal Courts, S.N.S. 1889, c.11; Philip Girard, ‘The Supreme Court of Nova Scotia: Confederation to the TwentyFirst Century,’ in Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press and Osgoode Society 2004), 153; Parker, ‘Reaching a Verdict,’ 85–6; J. Murray Beck, The Government of Nova Scotia (Toronto: University of Toronto Press 1957), 291–2. 10 P.B. Waite, The Man from Halifax: Sir John Thompson, Prime Minister (Toronto: University of Toronto Press 1985), 92. 11 See Debates, Nova Scotia House of Assembly, 1871, 40–2. 12 An Act relating to the Administration of Criminal Justice in the Superior Court, S.N.S. 1887, c.6; Canada, Sessional Papers, 1891, 50–2; Beck, The Government of Nova Scotia, 210, 296. 13 John N. Grant, ‘Henry William Smith,’ DCB, 11: 835. 14 Debates, Nova Scotia House of Assembly, 1872, 151. Debates on the County Court Bill may also be found in ‘Provincial Parliament,’ Halifax Morning Chronicle, 1 April 1874, 2; ‘Provincial Parliament,’ Halifax Morning Chronicle, 2 April 1874, 2. 15 ‘The County Court Bill,’ Halifax Morning Chronicle, 31 March 1874, 2. 16 Debates, Nova Scotia House of Assembly, 1874, 52. 17 An Act to establish County Courts, S.N.S. 1874, c.18, ss.30–32. 18 Debates, Nova Scotia House of Assembly, 1874, 52. 19 Greg Marquis, ‘In Defence of Liberty: 17th-Century England and 19th-Century Maritime Political Culture,’ University of New Brunswick Law Journal 42 (1993), 94; M. Brook Taylor, Promoters, Patriots and Partisans: Historiography in 19th-Century English Canada (Toronto: University of Toronto 1989), 41–83. 20 Debates, Nova Scotia House of Assembly, 1874, 126. 21 Lynds et al. v. Hoar (1875), 10 N.S.R. 327 at 327; P.B. Waite, ‘Jonathan McCully,’ DCB, 10: 456–9. 22 Lynds et al. v. Hoar (1875), 10 N.S.R. 327 at 332. 23 Quoted in ‘County Courts,’ Halifax Morning Chronicle, 31 March 1874, 3. For a critique of jury service in the 1870s, see ‘Juries and Justice,’ Halifax Morning Chronicle, 27 March 1875, 2. 24 ‘The County Courts Bill,’ Halifax Morning Chronicle, 13 April 1874, 2. 25 ‘County Courts Bills,’ Halifax British Colonist, 28 March 1874, 2. Also see, ‘Multiplying Courts,’ Halifax British Colonist, 2 April 1874, 2; Halifax British

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Notes to pages 181–4 Colonist, 4 April 1874, 2; ‘County Courts,’ Halifax British Colonist, 14 April 1874, 2. An Act to Establish County Courts, S.N.S. 1874, c.18; Beck, The Government of Nova Scotia, 291–2; George Patterson, ‘The Establishment of the County Court in Nova Scotia,’ Canadian Bar Review 21 (1943), 394–406; Girard, ‘The Supreme Court of Nova Scotia: Confederation to the Twenty-First Century,’ 148–9. Debates, Nova Scotia House of Assembly, 1875, 16–17, 143–6. Also see ‘County Courts,’ Halifax Morning Chronicle, 25 March 1875, 2; ‘Mr Holmes and the County Courts Act,’ Halifax Morning Chronicle, 1 April 1875, 2; ‘The County Courts Act,’ Halifax Morning Chronicle, 22 April 1875, 2; ‘Correspondence,’ Halifax Morning Chronicle, 1 May 1875, 1. Girard, ‘The Supreme Court of Nova Scotia: Confederation to the TwentyFirst Century,’ 153. P.B. Waite, ‘Sir John Sparrow David Thompson,’ DCB, 12: 1040. Debates, Nova Scotia House of Assembly, 1878, 73; ‘Provincial Parliament,’ Halifax Morning Chronicle, 12 March 1878, 2; ‘Provincial Parliament,’ Halifax Morning Chronicle, 3 April 1878, 1. James Muir, ‘Instrumentalism and the Law of Injuries in Nineteenth-Century Nova Scotia,’ in Girard, Phillips, and Cahill, eds., The Supreme Court of Nova Scotia 1754–2004, 361–90. Philip Girard, ‘The Roots of a Professional Renaissance, Lawyers in Nova Scotia, 1850–1910,’ Manitoba Law Journal 20 (1991), 148–80; Philip Girard, ‘The Supreme Court of Nova Scotia, Responsible Government, and the Quest for Legitimacy, 1850–1920,’ Dalhousie Law Journal 17 (1994), 430–57. Acadian Recorder, 2 March 1875, 2. ‘Eccentric Barristers vs. Juries,’ Halifax Morning Chronicle, 22 March 1878, 1. Debates, Nova Scotia House of Assembly, 1878, 182. Ibid., 182. Ibid., 183; Shirley B. Elliott, ed., The Legislative Assembly of Nova Scotia, 1758–1983: A Biographical Directory (Halifax: Province of Nova Scotia 1984), 237. Debates, Nova Scotia House of Assembly, 1878, 183; J. Murray Beck, ‘Otto Schwartz Weeks,’ DCB, 12: 1092–3. An Act to amend the law for the trial of Civil Causes in the Supreme Court, in and for the County of Halifax, S.N.S. 1878, c.4. Nova Scotia Judicature Act, S.N.S. 1884, c.25, s.21. ‘The Changing Role of the Jury in the Nineteenth Century,’ Yale Law Journal 74 (1964), 185. Girard, ‘The Supreme Court of Nova Scotia: Confederation to the TwentyFirst Century,’ 155–6.

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43 The County Incorporation Act, S.N.S. 1879, c.1, ss.72–73; Beck, The Government of Nova Scotia, 302. 44 He suggests that any effort to connect the 1879 legislation to the 1840s movement for responsible government is ‘the grossest distortion of history.’ J. Murray Beck, The Evolution of Municipal Government in Nova Scotia, 1749–1973 (Halifax: Nova Scotia Royal Commission on Education, Public Services, and Provincial-Municipal Relations 1973), 25. 45 Beck’s esteemed place as Nova Scotia’s leading political historian led subsequent scholars to adopt his views without question, but his conclusions regarding municipal reform require revision. See, for example, Waite, The Man from Halifax, 85–6; Phillip A. Buckner, ‘The 1870s: Political Integration,’ in E.R. Forbes and D.A. Muise, eds., The Atlantic Provinces in Confederation (Toronto: University of Toronto Press 1993), 59. 46 See chapter 3. 47 See chapter 5. 48 An Act to amend Chapter 136 of the Revised Statutes ‘Of Juries,’ S.N.S. 1865, c.8, ss.1–4; ‘Provincial Parliament,’ Halifax Morning Chronicle, 22 April 1865. In 1870, the legislature simplified the grand jury selection process by dividing counties into four (rather than eight) equal sections. An Act further to amend Chapter 136 of the Revised Statutes ‘Of Juries,’ S.N.S. 1870, c.19; Parker, ‘Reaching a Verdict,’ 261–2. 49 An Act to amend Chapter 92 of the Revised Statutes, ‘Of Juries,’ so far as regards the District of Guysborough, S.N.S. 1876, c.59, s.2. 50 An Act to amend Chapter 92 of the Revised Statutes ‘Of Juries,’ so far as regards the County of Cape Breton, S.N.S. 1878, c.33; An Act to amend Chapter 92 of the Revised Statutes ‘Of Juries,’ so far as regards the District of Clare, S.N.S. 1878, c.37; An Act to amend Chapter 92 of the Revised Statutes ‘Of Juries,’ so far as regards the District of St. Mary’s, S.N.S. 1878, c.39; An Act to amend Chapter 92 of the Revised Statutes ‘Of Juries,’ so far as regards the District of Chester, S.N.S. 1878, c.44. 51 An Act to incorporate the Town of Dartmouth, S.N.S. 1873, c.17; An Act to incorporate the Town of Pictou, S.N.S. 1874, c.54; An Act to incorporate the Town of Truro, S.N.S. 1875, c.47; An Act to incorporate the Town of New Glasgow, S.N.S. 1875, c.49; An Act to incorporate the Town of Windsor, S.N.S. 1878, c.41. 52 ‘Sessions – Removal of Officer,’ Colonial Standard, 17 February 1874, 2. Also see ‘Incorporation,’ Colonial Standard, 17 March 1874, 2. 53 Eastern Chronicle, 19 February 1874, 3. 54 Eastern Chronicle, 5 March 1874, 3; ‘The Road System,’ Colonial Standard, 2 June 1874, 2; ‘Municipal Institutions,’ Eastern Chronicle, 3 September 1874, 2; ‘Notes and Comments,’ Eastern Chronicle, 10 September 1874, 2; ‘Roads and Bridges,’ Eastern Chronicle, 19 November 1874, 2.

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55 ‘Municipal Institutions,’ Eastern Chronicle, 3 September 1874, 2. Also see ‘Local Matters,’ Eastern Chronicle, 25 February 1875, 3; ‘Incorporation of New Glasgow,’ Eastern Chronicle, 21 January 1875, 2. 56 Beck, The Evolution of Municipal Government in Nova Scotia, 25–8; J. Murray Beck, Politics of Nova Scotia, Volume One: Nicholson-Fielding, 1710–1896 (Tantallon, NS: Four East Publications 1985), 198–9; Allan C. Dunlop, ‘Simon Hugh Holmes,’ DCB, 14: 502–4; Buckner, ‘The 1870s: Political Integration,’ 56. 57 Debates, Nova Scotia House of Assembly, 1879, 127. 58 Ibid., 142. 59 Ibid., 148. 60 See, for example, ‘Municipal Incorporation,’ Halifax Morning Chronicle, 8 April 1879, 2; Eastern Chronicle, 10 April 1879, 2; ‘County Incorporation,’ Colonial Standard, 15 April 1879, 2; ‘Incorporation of Counties,’ Yarmouth Herald, 10 April 1879; ‘Mr. Kinney’s Letter,’ Yarmouth Herald, 17 April 1879; ‘Correspondence,’ Halifax Morning Herald, 9 April 1879, 2. For a complaint about the contents of the act, see ‘County Incorporation,’ Acadian Recorder, 9 April 1879. 61 ‘The Close of the Session,’ Halifax Morning Herald, 18 April 1879, 2. 62 Lunenburg Progress, 29 April 1879, 2. Also see ‘County Incorporation,’ Lunenburg Progress, 15 April 1879, 2. 63 ‘County Municipality,’ Colonial Standard, 6 May 1879, 2. 64 NSARM, RG5, series P, vol. 20, no. 111 (December 1879); NSARM, RG5, series P, vol. 21, no. 27 (28 February 1883). 65 ‘County Incorporation,’ Colonial Standard, 22 April 1879, 2. Also see ‘County Incorporation,’ Colonial Standard, 29 April 1879, 2. The 1879 municipal reforms also affected the selection process for jurors in Nova Scotia. No longer did the government have to rely on the magistracy. The province soon provided that every municipal council would appoint three council members to prepare and revise the grand and petit jury lists. Of Juries, R.S.N.S. 1884, c.106, ss.9–10. 66 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: University of Toronto Press and Osgoode Society 1986), 302. A number of the responses were published in John Alexander Kains, ‘How Say You?’ A Review of the Movement for Abolishing the Grand Jury System in Canada (St Thomas, NB: The Journal 1893). For further discussion, see Parker, ‘Reaching a Verdict,’ 237, 249–50; Desmond H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto and Osgoode Society 1989), 63–5. 67 Canada, Sessional Papers, 1891, 49.

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68 Ibid., 51. On Townshend, see R.E. Inglis, ‘Sketches of Two Chief Justices of Nova Scotia,’ Nova Scotia Historical Society Collections 39 (1977), 107–19. 69 Canada, Sessional Papers, 1891, 50. For another critique of the ability of grand juries to handle criminal prosecutions, see Halifax Citizen, 4 November 1871, 2. 70 Parker, ‘Reaching a Verdict,’ 264–5. 71 An Act to amend Chapter 106, Revised Statutes, ‘Of Juries,’ S.N.S. 1898, c.38. 72 According to Nancy Parker, Halifax grand juries rejected just over 5 per cent of prosecutions in this period. Parker, ‘Reaching a Verdict,’ 271. 8: ‘The Day Has Gone By for the Worship of Legal Idols’: The Decline of the Jury in Ontario 1 Hereward Senior, The Last Invasion of Canada: The Fenian Raids, 1866–1870 (Toronto: Dundurn Press 1991); Hereward Senior, The Fenians and Canada (Toronto: Macmillan 1978); W.S. Neidhardt, Fenianism in North America (University Park: Pennsylvania State University Press 1975). 2 For a full discussion of these trials see R. Blake Brown, ‘“Stars and Shamrocks will be Sown”: The Fenian State Trials in the Canadas, 1866–1867,’ in Barry Wright and Susan Binnie, eds., Canadian State Trials, vol. 3. (Toronto: University of Toronto Press forthcoming); W.S. Neidhardt, ‘The Fenian Trials in the Province of Canada, 1866–7: A Case Study of Law and Politics in Action,’ Ontario History 66 (1974), 23–36. 3 ‘Tampering with Jury Lists,’ Irish Canadian, 20 July 1864, 4; Mark McGowan, ‘Patrick Boyle,’ DCB, 13: 106–8. 4 See, for example, ‘The Fenian Excitement,’ Canadian Freeman (2nd ed.), 17 November 1864, 2; Peter Oliver, ‘James George Moylan,’ DCB, 13: 742–5. 5 See, for example, ‘News from Home,’ Irish Canadian, 13 December 1865, 4; ‘The Fenian Movement in Ireland,’ Irish Canadian, 27 December 1865, 2; ‘The Fenian Movement in Ireland,’ Irish Canadian, 3 January 1866, 3; ‘News from Home,’ Irish Canadian, 17 January 1866, 9; Irish Canadian, 24 January 1866, 4; ‘Black Sheep,’ Irish Canadian, 24 January 1866, 5; ‘News from Home,’ Irish Canadian, 28 February 1866, 6; ‘Prosecuting the Press,’ Irish Canadian, 12 February 1868, 2; ‘The Monaghan Jury Panel,’ Irish Canadian, 31 March 1869, 4–5; ‘An Irish Judge on the Jury System,’ Irish Canadian, 6 April 1870, 2. 6 ‘Lynch and McMahon,’ Irish Canadian, 2 November 1866, 9. 7 ‘The Fenian Trials,’ Canadian Freeman (2nd ed.), 29 November 1866, 2. 8 George R. Gregg and E.P. Roden, Trials of the Fenian Prisoners at Toronto (Toronto: Leader Steam Press 1867), 104.

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9 R. Blake Brown, ‘“Delusion, a Mockery, and a Snare”: Challenges to the Array and Jury Selection in England and Ireland, 1800–1850,’ Canadian Journal of History 39 (2004), 1–26. 10 A copy of the challenge may be found in Gregg and Roden, Trials of the Fenian Prisoners at Toronto, 191–2. Also see ‘The Fenian Trials,’ Toronto Globe, 14 November 1866, 1. 11 Gregg and Roden, Trials of the Fenian Prisoners at Toronto, 192. 12 ‘The Fenian Trials,’ Toronto Globe, 15 January 1867, 2. 13 Gregg and Roden, Trials of the Fenian Prisoners at Toronto, 166. 14 The petit jury panel for the January trials of alleged Fenians in Toronto has survived. It indicates that the eighty-four jurors on the panel were drawn from all areas. York County Crown Attorney Fenian trials papers, OA, RG22–5889, Petit Jury Panel, County Assizes, 10 January 1867. 15 On juries de medietate linguae, see Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press 1994). 16 ‘Fenian Trials,’ St Catharines Constitutional, 17 January 1866, 2, ‘The Fenian Trials,’ Toronto Globe, 17 January 1867, 1–2; ‘The Fenian Trials,’ Toronto Globe, 19 January 1867, 2; ‘Fenian Trials,’ Toronto Globe, 22 January 1867, 2; ‘Fenian Trials,’ Toronto Globe, 23 January 1867, 1; ‘Fenian Trials,’ Toronto Globe, 28 January 1867, 1; Regina v. Kennedy (1867), 26 U.C.Q.B. 326; ‘The Fenian Convicts,’ Perth Courier, 8 February 1867, 1. The Dominion government eliminated juries de medietate in 1869 in its Speedy Trials Act, a move that Judge Adam Wilson applauded in 1870 on the ground that it had become an obsolete procedure that was ‘perfectly useless, although calculated to give a good deal of trouble at times.’ ‘The Assizes,’ Toronto Globe, 11 January 1870, 4. 17 On 23 November 1866, the sheriff for the United Counties of York and Peel was sent the usual precept for the return of juries for the upcoming January assizes in Toronto. On 1 January 1867, the United Counties divided into the separate counties of York and Peel. The sheriff returned a panel of jurors containing the names of fifty-four jurors from what would become York County, and thirty from Peel County. After the division of the counties, however, only the jurors from York County attended, meaning that the sheriff had returned a panel of fifty-four jurors, rather than the eightyfour that had been ordered. A mixed jury of Americans and Canadians tried Owen Kennedy, the six Canadian jurors coming from the fifty-four returned York jurors. Chief Justice William Henry Draper acknowledged the importance of the complaint, and admitted that ‘in strictness the panel should have been drafted from the jury list of York alone,’ but held that a

Notes to pages 195–6

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provision of the jury act held that no omission to follow the statute could be grounds for quashing a decision. Thus, ‘by the express words of the statute,’ the error was ‘no ground for impeaching the verdict.’ Regina v. Kennedy (1867), 26 U.C.Q.B. 326 at 331. And see ‘Fenian Prisoners,’ Toronto Globe, 11 February 1867, 2. George Spaight, Trial of Patrick James Whelan for the murder of the Hon. Thomas D’Arcy McGee … (Ottawa 1868); T.P. Slattery, ‘Patrick James Whelan,’ DCB, 9: 835; T.P. Slattery, The Assassination of Thomas D’Arcy McGee (Toronto: Doubleday 1968). ‘The Whalen Trial!’ Irish Canadian, 16 September 1868, 4; ‘Correspondence,’ Irish Canadian, 16 September 1868, 11. Whelan v. The Queen (1868), 28 U.C.Q.B. 2; Whelan v. The Queen (1869), 28 U.C.Q.B. 108; ‘Court of Error and Appeal,’ Toronto Globe, 5 January 1869, 4. John C. Weaver, Crimes, Constables, and Courts: Order and Transgression in a Canadian City, 1816–1970 (Montreal: McGill-Queen’s University Press 1995), 80. According to The Nation in 1874, a ‘respectably sized volume might be made up of anecdotes of the perverse folly and ignorance of juries.’ The Nation, 18 August 1874, 2. ‘All over the country we have hundreds of business men taken from their avocations, several times a year, and kept dangling in attendance as jurymen.’ ‘Trials by Jury,’ Toronto Globe, 14 November 1868, 2. Also see Toronto Globe, 22 March 1869, 2; Toronto Globe, 13 April 1874, 1; ‘“Witness” Libel Suit,’ Ottawa Free Press, 13 April 1874, 1; ‘Latest From Montreal,’ Ottawa Free Press, 21 April 1874, 2; ‘York Fall Assizes,’ Toronto Globe, 4 February 1876, 3; ‘Wit and Humour,’ Tillsonburg Observer, 20 January 1882, 3; ‘Some Modern Verdicts,’ Tillsonburg Observer, 13 November 1885, 6. See, for example, ‘The Acquittal of Mrs Fair,’ Ottawa Free Press, 5 October 1872, 2; ‘Influencing Jurors,’ Weekly Sentinel Review, 26 December 1879, 3; ‘General News,’ Weekly Sentinel Review, 20 October 1882, 6; ‘A Sensation Spoiled,’ Toronto World, 23 January 1885, 1; ‘Was the Jury Tampered With,’ Toronto World, 31 January 1885, 1; ‘The Prejudices of Race,’ Toronto World, 16 September 1885, 1. ‘Judge Against Jury,’ Weekly Sentinel Review, 2 January 1885, 7; ‘The Division Court,’ St Catharines Constitutional, 1 September 1870, 2; ‘“Watty” Muirhead Acquitted,’ Toronto World, 3 April 1882, 1; ‘About Juries,’ Toronto World, 7 April 1882, 2; ‘The Court’s Mistake,’ Toronto World, 29 November 1882, 1; ‘Two Jury Cases,’ Toronto World, 12 January 1883, 2; ‘A Verdict of $300 for Seduction,’ Toronto World, 22 March 1884, 1; ‘An Obstinate Lot of

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Notes to pages 196–8 Jurors,’ Toronto World, 25 June 1884, 4; ‘At Variance with the Jury,’ Toronto World, 10 March 1886, 1. The Nation, 19 February 1875, 2. Judge Adam Wilson said in 1870 that the Speedy Trials Act could be used in Ontario because of the ‘confidence placed by the public in the judiciary,’ for the judges of the County Courts were ‘now entrusted with the very great powers, which it was long supposed could not be committed with any safety to any other hands than those of a jury.’ ‘The Assizes,’ Toronto Globe, 11 January 1870, 4. Also see ‘Trial by Judge or by Jury,’ Woodstock Sentinel, 7 June 1872, 1. One can speculate that Trow’s bill was shaped by his long experience in municipal government. He served an assessor, clerk, and reeve of the Township of North Easthope, and was warden of Perth. JLA 1868–1869, 18; The Canadian Biographical Dictionary and Portrait Gallery of Eminent and SelfMade Men, Ontario Volume (Toronto: American Biographical Publishing 1880), 103–4. JLA 1868–1869, 10. R.C.B. Risk, ‘Blake and Liberty,’ in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791–1991 (Ottawa: Canadian Study of Parliament Group 1992), 195–211; Ben Forster and Jonathan Swainger, ‘Edward Blake,’ DCB, 14: 74–85. As proof that Blake’s proposal would work, the Toronto Globe pointed out that the Division Courts and Court of Chancery rarely used juries, while in the Courts of Requests, ‘tens of thousands of cases, involving in the aggregate an immense sum of money, are yearly decided off-hand by the Judges, though in every case the right of jury is open to either party.’ ‘Trials by Jury,’ Toronto Globe, 14 November 1868, 2. ‘Juries,’ Tillsonburg Observer, 3 December 1868, 2. Law Reform Act, S.O. 1868, c.6; Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: University of Toronto Press and Osgoode Society 1986), 297–8. ‘Juries,’ Tillsonburg Observer, 12 November 1868, 2. Also see ‘Juries,’ Tillsonburg Oberver, 3 December 1868, 2. The Canadian News, 24 December 1868, 12. ‘The Ontario Legislature,’ St Catharines Constitutional, 29 October 1868, 2. Not everyone, of course, agreed that judges were so superior that juries’ roles should be reduced or eliminated. See, for example, ‘The Bowers McCabe Case – Judges Vs. Juries,’ Weekly Sentinel Review, 31 October 1879, 4. ‘Recorder’s Court,’ Toronto Globe, 31 December 1868, 1. ‘County Assizes,’ Toronto Globe, 6 April 1869, 3. On Gwynne, see Paul Romney, ‘John Wellington Gwynne,’ DCB, 13: 426–9.

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37 However, in Upper Canada factual disputes could be referred to the common law courts for determination by a jury. An Act to Establish a Court of Chancery in this Province, S.O. 1837, c.2; An Act Respecting the Courts of Chancery, R.S.O. 1877, c.40, s.99. 38 Gregory S. Alexander, ‘The Transformation of Trusts as a Legal Category, 1800–1914,’ Law & History Review 5 (1987), 305. 39 Philip Girard, ‘History and Development of Equity,’ in Mark R. Gillen and Faye Woodman, eds., The Law of Trusts: A Contextual Approach (Toronto: Edmond Montgomery 2000), 13–44. 40 Speedy Trials Act, S.C. 1869, c.35. 41 ‘The Assizes,’ Toronto Globe, 11 January 1870, 4. Graham Parker, ‘Sir Adam Wilson,’ DCB, 12: 1107–9. 42 Forster and Swainger, ‘Edward Blake’; Paul Romney, ‘Sir Oliver Mowat,’ DCB, 13: 724–42; A. Margaret Evans, Sir Oliver Mowat (Toronto: University of Toronto Press 1992), 66–104; S.J.R. Noel, ‘Oliver Mowat, Patronage, and Party Building,’ in Edgar-André Montigny and Lori Chambers, eds., Ontario Since Confederation: A Reader (Toronto: University of Toronto Press 2000), 94–104. 43 See chapter 7. 44 ‘Legislature of Ontario,’ Toronto Globe, 4 March 1873, 4. 45 Desmond H. Brown, ‘Sir James Robert Gowan,’ DCB, 13: 391–5. 46 Romney, Mr Attorney, 298; An Act for the better administration of Justice in the Courts of Ontario, S.O. 1873, c.8, ss.17–18. 47 An Act for the better administration of Justice in the Courts of Ontario, S.O. 1873, c.8, ss.16, 20; ‘Legislature of Ontario,’ Toronto Globe, 4 March 1873, 4. 48 The Joint Stock Companies General Clauses Consolidation Act, S.O. 1861, c.18. 49 The Interpretation Act, S.O. 1849, c.10, s.5(24). The legal development of the corporation in Upper Canada is discussed in R.C.B. Risk, ‘The NineteenthCentury Foundations of the Business Corporation in Ontario,’ University of Toronto Law Journal 23 (1973), 270–306. For its development in Quebec and Nova Scotia see, respectively, Jean-Marie Fecteau, ‘Les “petites républiques”: les compangnies et la mise en place du droit corporatif moderne au Québec au mileau du 19e siécle,’ Histoire Sociale – Social History 49 (1992), 35–56; Barbara A.M. Patton, ‘From State Action to Private Profit: The Emergence of the Business Corporation in Nova Scotia, 1796–1883,’ Nova Scotia Historical Review 16, no. 1 (1996), 21–60. For discussions of the legal development of the corporation in the United States and England see, for example, Ron Harris, Industrializing English Law (Cambridge: Cambridge University Press 2000); Paddy Ireland, ‘Capitalism without the Capitalist: The Joint Stock Company Share and the Emergence of the Mod-

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59 60

Notes to pages 201–3

ern Doctrine of Separate Corporate Personality,’ Legal History 17 (1996), 40; Michael Lobban, ‘Corporate Identity and Limited Liability in France and England, 1825–67,’ Anglo-American Law Review 25 (1996), 397–440; James Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States, 1780–1970 (Charlottesville: University of Virginia Press 1970). Peter Karsten suggests that jurors in Ontario tended to punish corporations in the belief that such corporations had ‘deep pockets,’ though he also concludes that Ontario jurors were less keen to punish corporations than jurors in the United States. Peter Karsten, Between Law and Custom: ‘High’ and ‘Low’ Legal Cultures in the Lands of the British Diaspora – The United States, Canada, Australia, and New Zealand, 1600–1900 (Cambridge: Cambridge University Press 2002), 480–7. Also see Eric Tucker, Administering Danger in the Workplace: The Law and Politics of Occupational Health and Safety Regulation in Ontario, 1850–1914 (Toronto: University of Toronto Press 1990). ‘The Legislative Attack on the Insurances,’ The Nation, 8 January 1875, 9; David Gagan, ‘William Alexander Foster,’ DCB, 11: 322–5. ‘The Government and the Fire Insurances,’ The Nation, 29 January 1875, 9. Also see ‘Two Jury Cases,’ Toronto World, 12 January 1883, 2. On the other hand, the London Advertiser argued that judges were out of touch with the litigants before them. ‘The Judicature Act,’ London Advertiser, 27 January 1880, 4. Elizabeth Bloomfield, ‘Lawyers as Members of Urban Business Élites in Southern Ontario, 1860 to 1920,’ in Carol Wilton, ed., Essays in the History of Canadian Law, vol. 4, Beyond the Law: Lawyers and Business in Canada, 1830 to 1930 (Toronto: University of Toronto Press and the Osgoode Society 1990), 112–48. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press 1977), 141. Deverill v. Grand Trunk Railway (1866), 25 U.C.Q.B. 517 at 526. ‘Ontario Legislature,’ Toronto Globe, 5 March 1878, 3. Toronto Globe, 7 December 1875, 3; ‘Ontario Legislature,’ Ottawa Free Press, 7 December 1875, 1. The judge awarded damages very similar to the jury. Toronto Globe, 7 December 1875, 3; Jaffrey v. Toronto, Grey and Bruce Railway Co. (1874), 24 U.C.C.P. 271. David G. Burley, ‘Arthur Sturgis Hardy,’ DCB, 13: 442–5. ‘Ontario Legislature,’ Toronto Globe, 18 January 1876, 4.

Notes to pages 203–6

315

61 ‘East York Local Election,’ Toronto Globe, 11 November 1878, 4. In the context of employment liability law, Eric Tucker argues that Ontario’s judges also declared cases ‘non-suits’ (i.e., a case insufficient in law) to take decisions away from juries. Tucker, Administering Danger in the Workplace, 64–5. 62 JLA 1878, 82, 135; Suzanne Zeller, ‘William McDougall,’ DCB, 13: 632–6. 63 JLA 1873, 22; Henry James Morgan, The Canadian Men and Women of the Time: A Hand-book of Canadian Biography (Toronto: W. Briggs 1898), 728–9. 64 ‘Legislature of Ontario,’ Toronto Globe, 23 January 1873, 4. 65 ‘Legislature of Ontario,’ Toronto Globe, 23 January 1873, 4; J. Daniel Livermore, ‘Edmund Burke Wood,’ DCB, 11: 934–5. 66 A. Margaret Evans, ‘Sir Matthew Crooks Cameron,’ DCB, 11: 143–6. 67 ‘Legislature of Ontario,’ Toronto Globe, 23 January 1873, 4. 68 Romney, ‘Sir Oliver Mowat,’ 727. 69 Evans, Sir Oliver Mowat, 188. 70 At various times, the Tillsonburg Observer, the Toronto Globe, and The Nation came out strongly in favour of eliminating the unanimity rule. ‘Juries,’ Tillsonburg Observer, 12 November 1868, 2; ‘Juries,’ Tillsonburg Oberver, 3 December 1868, 2; ‘Trial by Jury,’ Toronto Globe, 2 February 1878, 4; ‘The Newspaper Press and the Law of Libel,’ The Nation, 21 July 1876, 11–12. As in the pre-Confederation period, newspapers noted when juries failed to agree. See, for example ‘Common Law Chambers,’ Toronto Globe, 27 May 1869, 2; ‘General Sessions,’ Toronto Globe, 11 March, 1870, 2; ‘A Hung Jury,’ St Catharines Constitutional, 26 May 1870, 1; ‘Welland Assizes,’ Toronto Globe, 3 October 1870, 1; ‘Colonel Gray, M.P., and the Globe,’ Toronto Globe, 17 October 1870, 2; ‘Welland Assizes,’ St Catharine’s Constitutional, 27 April 1871, 2; ‘Common Law Chambers,’ Toronto Globe, 15 October 1872, 2; ‘The Sarnia Libel Suit,’ Tillsonburg Observer, 26 April 1878; ‘The McCabe Mystery,’ Toronto Globe, 31 March 1879, 4; ‘The Buck Lake Tragedy,’ Toronto World, 2 October 1881, 1; ‘Unable to Decide,’ Toronto World, 30 January 1885, 1. 71 The bill proposed that after one hour only eleven jurors would have to agree; after two hours only ten needed to agree; and after three hours just nine of twelve jurors had to agree. ‘The Legislature,’ Toronto Globe, 18 January 1876, 2. 72 ‘The Legislature,’ Toronto Globe, 18 January 1876, 2; ‘Ontario Legislature,’ Toronto Globe, 18 January 1876, 4. 73 ‘Ontario Legislature,’ Toronto Globe, 5 March 1878, 3–4; ‘Ontario Legislature,’ Toronto Globe, 6 March 1878, 3. 74 ‘Ontario Legislature,’ Toronto Globe, 6 March 1878, 3.

316

Notes to pages 206–8

75 An Act respecting the verdicts of Jurors in civil causes in the High Court and other Courts, S.O. 1895, c.16. Romney erroneously suggests that ‘unanimity survived the century’ in his book Mr Attorney, though he corrects this error in his Dictionary of Canadian Biography entry on Mowat. Romney, Mr Attorney, 298; Romney, ‘Oliver Mowat,’ 727. 76 Toronto Globe, 27 February 1895, 4. 77 ‘Go Slow About It,’ Evening Star, 27 March 1895, 2. 78 Toronto Globe, 20 March 1895, 4; ‘The Legislature,’ Toronto Globe, 27 March 1895, 5; Charles W. Humphries, ‘Sir James Pliny Whitney,’ DCB, 14: 1055– 62; Charles M. Humphries, ‘Honest Enough to Be Bold’: The Life and Times of Sir James Pliny Whitney (Toronto: University of Toronto Press, 1985). 79 Romney, Mr Attorney, 214–25; Ian Radforth, ‘Sydenham and Utilitarian Reform,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992), 81–5; J.H. Aitchison, ‘The Municipal Corporations Act of 1849,’ Canadian Historical Review 30 (1949), 107–22. The role of the grand jury also came under attack in England and Australia. See Leon Radzinowicz, A History of the English Criminal Law and its Administration from 1750, vol. 3, Cross-Currents in the Movement for the Reform of the Police (New York: Macmillan 1957), 463–4; Greg Taylor, ‘The Grand Jury of South Australia,’ American Journal of Legal History 45 (2001), 468–516. 80 Nancy Kay Parker, Reaching a Verdict: The Changing Structure of DecisionMaking in the Canadian Criminal Courts, 1867–1905 (PhD diss., York University 1999), 243. 81 ‘County Assizes,’ Toronto Globe, 6 April 1869, 3. 82 Ibid. 83 Ibid. The County Council of Middlesex also sent petitions to the legislative assembly asking that grand juries lose what powers they had over the care of mentally ill persons. See JLA 1875–1876, 156; JLA 1880, 118. Paul Romney notes the Whiggish interpretation of history in the views of grand jury abolitionists. Romney, Mr Attorney, 305–6. 84 ‘Grand Juries,’ Toronto Globe, 18 December 1877, 4. Also see ‘Lincoln Fall Assizes,’ St Catharines Constitutional, 22 September 1870, 2. In 1877, the Woodstock Review noted that at the London assize Justice Robert Harrison had proposed the abolition of grand juries, except perhaps in indictments for political offences. ‘Grand Juries,’ Woodstock Review, 16 November 1877, 4. 85 ‘Quarter Sessions and County Court,’ Perth Courier, 13 March 1868, 2. Also see ‘From Pembroke,’ Renfrew Mercury, 11 June 1875, 2. 86 ‘Welland Assizes,’ St Catharines Constitutional, 27 April 1871, 2.

Notes to pages 208–10

317

87 ‘The Montreal Grand Jury Again,’ Toronto Globe, 4 October 1877, 2. Also see ‘Grand Juries,’ Toronto Globe, 6 July 1878, 2. 88 ‘Oyer and Terminer,’ Toronto Globe, 23 April 1880, 6. For other defences of grand juries, see ‘Oxford County Council,’ Weekly Sentinel Review, 13 April 1883, 8; ‘The Grand Jury’s Presentment,’ Weekly Sentinel Review, 9 October 1885, 1. 89 ‘Oxford Fall Assizes,’ Weekly Sentinel Review, 22 October 1880, 4. Cameron frequently made such arguments. See also ‘The Grand Jury System,’ Toronto Globe, 5 April 1880, 3; ‘Oyer and Terminer,’ Toronto Globe, 18 June 1880, 5. For similar judicial comments see ‘The Assizes,’ London Advertiser, 29 September 1880, 4. Despite his support for grand juries, Cameron noted that grand jurors seemed reluctant to give their time. ‘Juries and Jurors,’ Toronto World, 26 October 1881, 4. Grand jurors expressed divergent opinions on whether the traditional aspects of the grand jury system should be kept intact. See ‘Oxford Assizes,’ Weekly Sentinel Review, 24 October 1879, 4; ‘Oxford Fall Assizes,’ Weekly Sentinel Review, 29 October 1880, 4; ‘The Fall Assizes,’ Renfrew Mercury, 24 September 1880, 4. 90 JLA 1875–1876, 41. 91 Toronto Globe, 27 January 1876, 4. Commentators began to express confusion at why property qualifications were higher for grand jurors than trial jurors, since by the 1870s trial jurors seemed to have the more important and complicated duties. As the Weekly Sentinel Review of Woodstock noted in 1879, ‘if superior intelligence and judgment are required anywhere it is in the ranks of the petit juries.’ ‘Jury Reforms,’ Weekly Sentinel Review, 14 March 1879, 9. 92 The United Counties of Haliburton, Leeds and Grenville, the United Counties of Lennox and Addington, and Peel County failed to report. JLA 1880, Sessional Papers, no. 55. 93 Toronto Globe, 27 January 1876, 4. 94 JLA 1875–1876, 181. 95 An Act to Amend the Jurors’ Act, S.O. 1879, c.14. 96 An Act respecting Grand Juries, S.O. 1879, c.13, s.1. In October 1879, the grand jury at the Oxford assizes had appealed to the legislature to reduce the number of jurors. ‘Oxford Assizes,’ Weekly Sentinel Review, 24 October 1879, 4. 97 JLA 1885, Sessional Papers, no. 40. 98 These figures include the opinion of Justice John Wellington Gwynne, then at the Supreme Court of Canada. Canada, House of Commons, Sessional Papers, 1891, no. 66.

318

Notes to pages 210–12

99 Desmond H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto and Osgoode Society 1989), 62–3. 100 Parker, ‘Reaching a Verdict,’ 254. Similarly, David Bentley indicates that English grand juries threw out less than 1 per cent of bills at the end of the nineteenth century. David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press 1998), 134. 101 An Act reducing the number of Grand Jurors, S.O. 1892, c.12. 102 An Act further to amend the Criminal Code, 1892, S.C. 1894, c.57, s.1; Parker, ‘Reaching a Verdict,’ 252; ‘Ontario Legislature,’ Toronto Globe, 9 March 1892, 5. 103 For evidence of the inconvenience and cost of jury service in the postConfederation period see ‘Recorder’s Court,’ Toronto Globe, 5 June 1868, 2; ‘Trials by Jury,’ Toronto Globe, 14 November 1868, 2; ‘County Assizes,’ Toronto Globe, 6 April 1869, 3; ‘A Hung Jury,’ St Catharines Constitutional, 26 May 1870, 1; ‘County Court,’ Ottawa Free Press, 13 June 1871, 3; ‘York Winter Assizes,’ Toronto Globe, 3 February 1876, 3; ‘Pretty’s Predicament,’ Toronto World, 10 March 1882, 4; ‘Renfrew Fall Assizes,’ Renfrew Mercury, 24 October 1884, 3. 104 ‘County Council,’ Toronto Globe, 7 February 1868, 1; JLA 1867–1868, 53; ‘The Press Libel Suit,’ Toronto Globe, 15 April 1871, 1; ‘County Council,’ Ottawa Free Press, 18 June 1872, 2. 105 An Act to amend the Upper Canada Jurors’ Act, so as to provide for the payment of Special Jurors, S.O. 1873, c.13. 106 An Act to Amend the Upper Canada Jurors’ Act, S.O. 1874, c.14. 107 JLA 1869, Sessional Papers, no. 12. 108 Toronto Globe, 7 December 1875, 3. 109 JLA 1877, Sessional Papers, no. 15. 110 ‘Legislature of Ontario,’ Perth Courier, 31 January 1868, 1; JLA 1867–1868, 27. 111 JLA 1875–1876, 152; JLA 1878, 93. 112 ‘Administration of Justice,’ Toronto Globe, 8 December 1875, 2. On Hodgins, see The Canadian Biographical Dictionary and Portrait Gallery of Eminent and Self-Made Men, Ontario Volume, 386–8. 113 ‘Ontario Legislature,’ Toronto Globe, 8 December 1875, 4; ‘The Legislature,’ Toronto Globe, 18 January 1876, 2. 114 ‘The Ontario Legislature,’ Toronto Globe, 12 February 1878, 2. 115 Morgan, The Canadian Men and Women of the Time, 883. 116 JLA 1877, 56; ‘Ontario Legislature,’ Toronto Globe, 1 March 1877, 3. 117 ‘Ontario Legislature,’ Toronto Globe, 6 March 1878, 3.

Notes to pages 212–15

319

118 ‘Ontario Legislature,’ Toronto Globe, 10 January 1879, 3. 119 ‘East York Local Election,’ Toronto Globe, 11 November 1878, 4. 120 ‘Ontario Parliament,’ Simcoe Reformer, 6 March 1879, 2; ‘Hon. Mr Hardy’s Speech on his Jury Bill,’ Brantford Weekly Expositor, n.d., CIHM, no. 59687. 121 ‘Hon. Mr Hardy’s Speech on his Jury Bill,’ Brantford Weekly Expositor, n.d., CIHM, no. 59687. The clerk of the peace was to attend, but have no say. The county treasurer could not serve on the county jury selection committee if he was a lawyer. An Act to Amend the Jurors’ Act, S.O. 1879, c.14, ss.3–5. 122 An Act to Amend the Jurors’ Act, S.O. 1879, c.14, s.1; C.R.W. Biggar, Sir Oliver Mowat: A Biographical Sketch, vol. 1 (Toronto: Warwick Bro’s and Rutter 1905), 310–12. 123 Toronto Globe, 26 February 1879, 4. 124 Ian McKay, ‘The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,’ Canadian Historical Review 81 (2000), 625–6. 125 An Act to Amend the Jurors’ Act, S.O. 1879, c.14, ss.6–8, 11, 13. 126 ‘Jury Reforms,’ Weekly Sentinel Review, 14 March 1879, 9. Legislation subsequently fixed several small mistakes in Hardy’s act. An Act further to amend the Jurors’ Act, S.O. 1880, c.9; An Act to Amend the Jurors’ Act of 1879, S.O. 1881, c.6. 127 ‘Oxford County Council,’ Weekly Sentinel Review, 3 February 1882, 6; JLA 1880, 118; JLA 1881, 28, 34, 42, 59, 62, 66, 85, 90, 100, 109, 144; JLA 1882, 15, 16, 32, 44, 48, 51, 55, 69, 82, 93, 100. Each member of the committee received four dollars per day; thus, when the various members of the county committee for Carleton County met for a total of forty-four days in 1880, the county had to pay $176. York County in comparison paid $348, while Bruce County only paid $60. JLA 1881, Sessional Papers, no. 24. In the assembly, Alexander Ross appealed for a resolution that the county selectors should be eliminated because they lacked any practical benefit. JLA 1881, 145. 128 An Act to Amend the Jurors’ Act, and the Jurors’ Act of 1879, S.O. 1882, c.8; ‘Ontario’s Parliament,’ Toronto World, 2 March 1882, 4. The Ontario government also promised to consolidate the jury act, which it did in 1883. ‘Ontario Legislature,’ Renfrew Mercury, 22 December 1882, 8; JLA 1882–1883, 83–86; An Act to consolidate and amend the Acts respecting Jurors and Juries, S.O. 1882–83, c.7. 129 ‘The Judicature Act,’ London Advertiser, 27 January 1880, 4. 130 ‘Reform of the Jury System,’ Renfrew Mercury, 17 November 1882, 6.

320

Notes to pages 216–23 Conclusion

1 Doug Small, ‘Judging Juries,’ National 8, no. 5 (1999), 16. Also see Bob P. Hrycan, ‘The Myth of Trial by Jury,’ Criminal Law Quarterly, 51 (2006), 157–68. 2 For example, Bruce Curtis, True Government by Choice Men? Inspection, Education, and State Formation in Canada West (Toronto: University of Toronto Press 1992); J.I. Little, State and Society in Transition: The Politics of Institutional Reform in the Eastern Townships, 1838–1852 (Montreal: McGillQueen’s University Press 1997). 3 George Perry echoes this view in his examination of the delayed development of a centralized education program in Nova Scotia vis-à-vis Upper Canada. He concludes that Nova Scotia faced greater problems in establishing a smoothly operating, centralized system. ‘If poor roads and connections imposed limits on the growth of central authority in Canada West prior to 1840,’ muses Perry, then ‘at mid-century Nova Scotia faced even greater problems. Financial and administrative constraints were real and local politicians continued to be strong voices for their communities. And certainly when the deep sectarian divisions that persisted in the 1850s are added to this, the delayed emergence of an “educational state” was hardly surprising.’ George D. Perry, ‘“The Grand Regulator”: State Schooling and the Normal-School Idea in Nova Scotia, 1838–1855,’ Acadiensis 32 (2003), 64, 80. Also see Graeme Wynn, ‘Ideology, Society, and State in the Maritime Colonies of British North America, 1840–1860,’ in Allan Greer and Ian Radforth, eds., Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada (Toronto: University of Toronto Press 1992), 284–328. 4 Philip Girard, ‘The Rise and Fall of Urban Justice in Halifax, 1815–1886,’ Nova Scotia Historical Review 8 (1988), 71. 5 Ontario, Royal Commission Inquiry into Civil Rights, report 1, vol. 2 (Toronto: Queen’s Printer 1968), 860. 6 Ontario Law Reform Commission, Report on Administration of Ontario Courts, Part I (Toronto: Ministry of the Attorney General 1973), 329–50. 7 Ibid., 332, 333. 8 Ibid., 332; Ontario Law Reform Commission, Report on the Use of Jury Trials in Civil Cases (Toronto: Ontario Law Reform Commission 1996), 13, 16. 9 Neil Vidmar, ‘The Canadian Criminal Jury: Searching for a Middle Ground,’ in Neil Vidmar, ed., World Jury Systems (Oxford: Oxford University Press 2000), 219. 10 S.N. Lederman, Study of the Civil Jury and Grand Jury in Ontario (Ontario: Ontario Law Reform Commission 1971); Ontario, Royal Commission Inquiry

Notes to pages 223–4

11

12 13

14 15

321

into Civil Rights, 774. England eliminated grand juries in 1933. David Philips, Crime and Authority in Victorian England: The Black Country, 1835–1860 (London: Rowman and Littlefield 1977), 103; Albert Lieck, ‘Abolition of the Grand Jury in England,’ Journal of Criminal Law and Criminology 25, no. 4 (1934), 623–5. Weaver, Crimes, Constables, and Courts, 157–8; The Juries Act, 1974, S.O. 1974, c.63, ss.48–51; An Act to Amend Chapter 12 of the Acts of 1969, the Juries Act, S.N.S. 1978–1979, c.41, s.2. Law Reform Commission of Canada, The Jury in Criminal Trials (Ottawa: Law Reform Commission of Canada 1980), 5–17. See generally, Christopher MacLennan, Towards the Charter: Canadians and the Demand for a National Bill of Rights, 1929–1960 (Montreal: McGillQueen’s University Press 2003); Dominique Clément, Canada’s Rights Revolution: Social Movements and Social Change, 1937–82 (Vancouver: UBC Press 2008). Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c.11, s.11(f). Christopher Granger, The Criminal Jury Trial in Canada, 2nd ed. (Toronto: Carswell 1996), 38–9.

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Index

Aboriginal peoples, 18 Acadian Recorder, 33, 108, 115–16, 128, 182 Acadians, 18, 19 Administration of Justice Act (Ontario), 200, 202, 206, 214 Almon, William Bruce, 30–1 Alschuler, Albert, 5 Amherst, 24, 25, 26, 72, 106, 107, 113, 238n32, 244n97, 274n30 Annand, William, 69, 72–3, 78, 130, 219, 260n53 Annapolis County, 19, 36, 61, 71, 126, 127 Annapolis Royal, 19, 25 Antigonish, 28, 73, 117 Antigonish County, 18, 38, 103, 128, 244n102 Archibald, Adams George, 183 Archibald, Samuel George William, 22, 60, 68, 123 Arichat, 25, 64, 126 array challenges. See jury challenges

Artemesia, 145 Australia, 74, 258n40, 316n79 Badgley, William, 54, 135, 161–2, 164 Baldwin, Robert, 14, 54, 55, 82, 96, 134, 135, 138, 140, 143, 145, 161, 162, 196, 212, 270n91 Baldwin, William Warren, 82, 86–7, 266n34 Barrie, 143, 207 Barry, John Alexander, 39 Bathurst, District of, 146 Beardsley, Crannell, 85, 87 Beck, J. Murray, 184, 307n45 Beikie, John, 248n9 Bell, Adam Carr, 188 Benjamin, Perez, 59 Bentham, Jeremy, 11–12, 38, 156, 169, 176, 197, 232n38, 237n26, 261n61 Bethune, James, 202, 204, 205 Bidwell, Barnabas, 82 Blackstone, William, 7, 15, 48

324

Index

Blake, Edward, 197, 198, 199–200 Bliss, William Blowers, 27, 40, 108, 110 Boswell, George M., 301n189 Boulton, Henry John, 55, 84, 89, 250n18 bourgeois public sphere, 9, 66–7, 80, 98 Boyle, Patrick, 193 Brant, 151, 164 Bridgetown, 178 British North America Act, 178, 209 Brockville, 55, 83 Brode, Patrick, 158 Brougham, Henry, 197–8 Brown, George, 133, 150 Bruce County, 319n127 Buckner, Phillip, 104 Burr, Rowland, 165, 302n194 Bytown Gazette, 155–6 Cahill, Barry, 38–9 Cameron, John Hillyard, 159 Cameron, Matthew Crooks, 205, 208–9, 317n89 Campbell, Alexander, 164–5, 303n217 Campbell, Colin, 61, 62, 68 Campbell, Stewart, 120 Campbell, William, 48 Canadian Alliance Society, 83 Canadian Freeman (1st ed.), 84–5 Canadian Freeman (2nd ed.), 194 Canadian News, 198 Cape Breton, 18, 25, 26, 28, 38, 39, 61, 64, 236n17, 239n42, 244n97 Cape Breton County, 25, 64, 111, 186, 238–9n35 Carleton County, 147, 151, 319n127 Carten v. Walsh, 123–4 Casket, The, 117, 234n4

challenges. See jury challenges Chandler, Joshua, 72 Charitable Irish Society, 64, 65, 111–12 Charter of Rights and Freedoms, 224, 229n17 Chartrand, Armand, 95–6, 159 Chatham, 136, 143–4 Chester, 186, 238–9n35 Clare, District of, 186 Clear Grits, 148, 150 Cleaveland, William, 68, 69 clerk of the peace: in Nova Scotia, 33, 61, 77; in Upper Canada, 45, 46, 86, 136, 137, 139, 140, 141, 142, 143, 144, 145, 148, 152, 211 Colchester County, 61, 127, 278n100 Collins, Francis, 83, 84–5, 90 Colonial Standard, 186 Commentaries on the Laws of England, 7, 15 Commissioners’ Court. See courts Confederation, 9, 12, 13, 14, 19, 22, 62, 99, 102, 120, 129, 130, 134, 152, 161, 164, 165, 166, 167, 169, 171, 173, 175, 176, 178, 184, 187, 190, 191, 192, 196, 200, 202, 205, 206–7, 211, 214, 215 Constitutional Act, 44 corporations, 5, 6, 173, 182, 190, 200– 4, 206, 214, 215, 221, 314n50 Corrigan, Robert, 159–60, 167 County Attorneys Act, 163, 177, 207 County Courts. See courts County Incorporations Act (Nova Scotia), 184, 187–9 Court of Chancery. See courts Court of King’s Bench. See courts Court of Requests. See courts courts: Commissioners’ Court (Nova

Index Scotia), 38, 121; County Courts (England), 6, 228n14, 301n189; County Courts (Nova Scotia), 14, 175, 176, 177, 178–82, 183, 184, 189; County Courts (Ontario), 197, 208, 312n25; Court of Chancery (England), 199; Court of Chancery (Upper Canada and Ontario), 158, 166, 169, 197, 198, 199, 200, 301n192, 312n29; Court of King’s Bench (Queen’s Bench) (Upper Canada and Ontario), 44, 46, 48, 92, 158, 202, 208, 225n2, 291n83; Court of Probate (Upper Canada), 45; court reform, 37–41, 44, 165, 178–80, 197, 245n113; Court of Requests (Upper Canada), 45, 165, 267n44, 312n29; District Court (Upper Canada), 44, 45, 46, 49, 50, 53, 225n2; Division Court (Upper Canada), 165, 166, 198, 300n186, 301n189, 312n29; General Sessions of the Peace (Nova Scotia) 4, 19, 20, 23, 25, 28, 30, 32–4, 35, 36, 37, 38, 40–1, 42, 44, 59, 60, 61, 62, 66, 76, 77, 105, 109, 120, 125, 129–30, 178, 184, 185-6, 187, 188, 197, 218, 225n2, 241n64, 242n81, 274n30, 278n99; High Court of Ontario, 199; inconvenience of, 24, 26, 28, 37, 39–40, 49, 191, 198, 244n97; Inferior Court of Common Pleas (Nova Scotia), 19, 20, 25, 26, 27–8, 38–41, 42, 121, 178, 237n24, 240n52, 244n97, 246n113; in Lower Canada, 149, 178, 245n103; in New Brunswick, 178; Mayor’s Court (Toronto), 48, 50; Recorder’s Court (Upper Canada and Ontario), 44–5, 164–5, 167, 197, 198, 250n24, 300n179,

325

301n191; Supreme Court of Canada, 198, 209; Supreme Court of Nova Scotia, 19, 20, 23, 24, 25, 26, 27–8, 38, 39, 40, 41, 59, 60, 61–2, 72, 76, 106–9, 110, 116, 120, 121, 177, 178, 179, 180, 181, 182, 183–4, 190, 223, 225n2, 238n32, 240n52, 243n87, 244n97, 246n122, 271n1, 272n5; Surrogate Court (Upper Canada), 45; Upper Canada Court of Common Pleas, 198, 202 Criminal Code, 210, 304n2 Crown attorneys, 163–5, 177–8, 207, 209, 210, 212 Cumberland County, 19, 24, 26, 27, 28, 39, 59, 61, 72, 103, 105, 106–8, 112–13, 119, 245n113, 246n122, 272n5 Currie, James, 209 Daoust, Charles, 150 debt, 38, 41, 45, 83, 156, 201, 265n18, 267n44 Delaney, James, 72, 73 Denman, Thomas (Lord), 70–1, 76 DesBarres, William Frederick, 110, 111, 118–19 Deverill v. Grand Trunk Railway, 202 Dialogue between a Barrister at Law and a Juryman, A, 48 Dickey, Robert Barry, 106 Dickey v. Nugent, 107 Digby County, 61, 126 District Councils Act (1841), 163 District Court. See courts Division Court. See courts Dodd, Edmund Murray, 107, 110–11 Doyle, Lawrence O’Connor, 64, 65, 75, 76 Draper, William Henry, 310n17

326

Index

Drummond, Lewis Thomas, 150, 294n106 Durand, Charles, 94 Durham, Lord (John George Lambton, Earl of Durham), 95–6, 159 Eastern Chronicle (New Glasgow), 186–7 Elgin, Lord (James Bruce, 8th Earl of Elgin), 54 Elgin County, 148, 153 equity, 166, 197, 198–9 Executive Council (Nova Scotia), 58, 60, 243n87, 354n1 Executive Council (Upper Canada), 44, 82, 96 Fairbanks, Charles Rufus, 23, 123 Falkland, Lord (Lucius Cary, 10th Viscount Falkland), 125 Family Compact, 44, 66, 82, 83, 85, 97 fees: for litigants, 54, 148; for officials, 89, 116, 144–6, 148, 149, 151, 152, 154, 170–1, 214, 222, 264n4, 289n61, 291n83, 292n85, 293n94 Fenians, 14, 193–5, 196, 210 Fergusson, Adam Johnston, 168 Ferrie, Robert, 168 Fingard, Judith, 62 Fisher, J.T., 143 Flint, Billa, 55 Forestall, Richard James, 234n4 Forrester, Thomas, 58–9, 63, 123 Foster, William Alexander, 201 Fothergill, Charles, 47–8, 250n18 Fraser, Donald, 89 Fraser, J.D.B., 104 Fraser, Robert, 92 Fraser v. Dickson, 249n10 Freeman, Samuel, 140

Friedman, Lawrence, 5, 8 Fulton, Stephen, 105 Gavazzi, Alessandro, 159 General Sessions of the Peace. See courts Girard, Philip, 118, 181, 220 Glorious Revolution, 7 Goderich, Lord (Frederick John Robinson, 1st Earl of Ripon), 89 Gould v. Gould, 26–7 Gourlay, Robert, 83–4, 85, 90 Gourlay shanty riot, 111–12, 113, 160 Gowan, James, 156, 163, 165, 176, 189, 200 Gowan, Ogle Robert, 52–5 grand jury, 13–14, 17; criticism of, 9, 23, 28, 130–1, 135, 161–2, 164–5, 187–8, 189, 206–10, 223, 316n84; in Australia, 74; in England, 185, 300n179, 320n10; in Nova Scotia, 13, 17, 19–21, 22, 23–4, 27–8, 30, 31–7, 39, 40–1, 58–61, 66, 68–9, 71, 73, 74, 75–7, 79, 101, 102, 105, 109, 110–11, 113, 116, 117, 120, 124–9, 130–1, 132, 173, 175–6, 177, 184–90, 235n10, 236n23, 243n86, 263n93, 272n3, 277n77, 278n99, 278n100, 307n48; in Upper Canada (Ontario), 46, 48, 50–2, 80, 85, 86, 87, 88, 89, 92, 97, 134, 135, 136, 141, 146–7, 161–2, 163–5, 167, 169, 196, 198, 199, 206–10, 211, 212, 213, 248n9, 250n24, 299n175, 300n179; presentments, 32, 33, 52, 58, 68, 130, 147, 161, 164, 167, 198, 208, 242n72, 277n77; role of, 3–4, 9, 14, 17, 31–2, 36–7, 51–2, 56, 101, 125, 161, 163–4, 169, 171, 184–90, 191, 207, 210, 216, 219, 221, 223, 224; selection of fore-

Index men, 58–9. See also juror pay, jury, jury legislation, jury packing, jury selection procedures, local government Grantham, 146 Gray, Charlotte, 264n4 Green, Thomas Andrew, 118 Greer, Allan, 78, 162 Guysborough, 28, 32–7, 185 Guysborough County, 38, 61, 128, 244n102 Gwynne, John Wellingston, 198, 199, 207–8, 317n98 Hagarty, John, 141, 202, 208 Hagerman, Christopher Alexander, 89, 90, 94 Haldimand County, 286n35, 291n83, 295n124 Haliburton, Robert Grant, 108–9 Haliburton, Thomas Chandler, 64, 110 Halifax, 14, 17, 18, 19, 20, 22–4, 25, 26, 28, 29, 30–1, 32, 38, 41, 42, 58–9, 60, 61, 62, 63, 64, 71, 73–7, 78, 102, 107, 108–9, 115, 120, 123–4, 125, 160, 178, 182, 183, 190, 218, 236n23, 242n73, 246n122, 271n1, 272n3, 277n77, 282n148; founding of, 18– 19; local government in, 52, 64–70, 126, 129–30, 185 Halifax British Colonist, 103, 104, 105, 106, 112, 113–14, 123, 124, 127, 181 Halifax County, 23, 32, 41, 60, 63, 76, 120, 129, 130, 182, 282n148 Hall, John Clarke, 126 Halliburton, Brenton, 27, 40, 58, 68, 69, 108, 109, 110, 112, 121, 272n5 Hamilton, 44, 94, 141, 147, 164, 170, 300n179

327

Hamilton Evening Times, 155, 156 Hanly, Conor, 5–6, 118 Hants County, 24, 28, 61, 121, 127, 240n45 Hardy, Arthur Sturgis, 202–3, 206, 212, 213 Hartman, Joseph, 302n194 Harvey, John, 103 Hastings County, 55, 145 Hawles, John, 48 Head, Francis Bond, 93 Heffernan, William Owen, 33–7, 242n73 High Court of Ontario. See courts Hill, Philip Carteret, 187 Hill, William, 40 Hincks, Francis, 96, 148, 254n73 Hodgins, Thomas, 211 Holmes, Simon Hugh, 181, 183, 187, 188, 189 Home District, 53, 89, 248n9, 251n29, 254n71 Horwitz, Morton J., 5, 202 Howe, Joseph, 64, 71, 180; and jury packing, 72–3, 75, 76, 107; and jury reform, 59, 77; relationship to Irish, 112; role in reform movement, 64, 75, 104; trial of, 13, 68–70, 84, 125 Huestis, Joshua, 106–7 hung juries, 111–12, 113, 116, 121, 123–4, 156–7, 167–9, 205, 206 Huron and Bruce, United Counties of, 212 Inferior Court of Common Pleas. See courts Interpretation Act (Ontario), 201 Inverness County, 61 Irish, 16; in Ireland, 70–1; in Lower

328

Index

Canada, 159; in Nova Scotia, 64–5, 70, 71, 73–7, 79, 101, 111–12, 113, 263n93; in Upper Canada, 44, 81, 94, 96, 193–6 Irish Canadian, 193–4, 195 Jaffrey v. Toronto, Grey and Bruce Railway, 202 Jarvis, Samuel Peters, 84 Jarvis, William Botsford, 89, 252n42 Johnson, J.K., 166 Johnston, James W., 60, 65, 67, 71, 73, 77, 104, 107, 112, 127, 281n129 judicature acts, 175, 182–4; in England, 199 juror pay: in England, 237n26, 253n47; in Lower Canada, 149–51; in Nova Scotia, 23, 30–1, 116, 120, 124, 220, 278n96, 278n99; in Upper Canada (Ontario), 50, 53–6, 146–8, 154, 171, 211, 220, 254n71, 294n106, 300n179 jurors: absenteeism, 17, 29–30, 50–1, 141, 147, 217, 241n64, 252n42; accommodations for, 26–7, 29, 217, 240n45; biases of, 5, 11, 12, 64, 70, 80, 94, 95–6, 101, 111, 114, 117, 118, 124, 155, 159–60, 166, 171, 191, 214, 220–1; black jurors, 77, 143–4, 288n50; exemptions, 30–1, 46, 135, 136, 139–40, 141, 142, 143, 241n65, 248n9, 283n7, 285n31, 287n44; fines for, 23, 29, 30, 31, 34, 50, 51, 246n122, 252n39; kept without food or drink, 120–1, 124; mistreatment of, 251n29; reluctance to serve, 8, 13, 16, 17, 21–31, 42, 50, 116, 117, 164–5, 184, 190, 198, 204, 209, 211, 214, 217–18, 300n179, 317n89; travel, 8, 13, 17, 20, 24–6, 27, 29–30,

31, 37, 40, 42, 49–50, 53, 54, 56, 90, 119, 122, 133, 146–7, 149, 217, 218, 238n35, 239n42, 293n95; unable to speak English, 143, 234n4, 288n49 jury: and popular culture, 3; as palladium of liberty, 7, 16, 17, 31, 80, 99, 102, 106, 156, 205, 224, 267n48; calls to eliminate, 6, 10, 135, 159, 161, 164, 165, 175, 196, 197, 208–9; class composition of, 12, 22, 62, 135-6, 236n23; coercion of, 121; decline of, 3–16, 17, 38–41, 43, 51–2, 99, 125, 133, 144, 154, 163–5, 173, 176–84, 190–1, 192, 196–204, 214–5, 216–24; expense of, 8, 10, 12, 14, 16, 53–6, 57, 63, 99, 101, 116, 120, 123, 124, 133, 134, 139, 144–54, 159, 161, 164, 167, 170–1, 175, 179, 189, 191, 206, 208, 209, 210–14, 216, 217, 219, 220, 289n61, 294n104, 300n179, 318n103; foremen, 33, 58–9, 113, 143–4, 188; historiography, 4–6; in Alberta, 223; in British Columbia, 6, 223; inconvenience to jurors, 3, 8, 13, 15–16, 17, 22–31, 37, 40, 42, 43, 48, 49, 51, 53, 56, 90, 97, 99, 119, 133, 138, 146, 164, 175, 178–80, 181, 191, 198, 204, 214, 218, 219, 220, 238n35, 244n97, 246n122, 293n95, 300n179, 318n103; in England, 5–6, 7, 20, 22, 38, 41, 45–6, 86, 87, 90, 96, 118, 123, 124, 162, 180, 185, 233n42, 236n20, 237n26, 276n72, 279n103, 300n179, 320n10; in Lower Canada (Quebec), 95–6, 149–51, 159–60, 223, 293n95; in New Brunswick, 121–2, 223, 279n102; in Northwest Territories, 223; in Prince Edward Island, 223; in Saskatchewan, 223; in Scotland, 122, 123, 279n103; in-

Index terference with state policies, 3, 10, 200–3; in Yukon, 223; judicial attitudes towards, 11, 48, 56, 109, 112, 118–19, 158–9, 167, 180, 189–90, 198, 199, 201–2, 207–10, 297n151; of matrons, 233n42; outdated role of, 6, 9, 99, 131, 134, 157, 168, 170, 173, 175, 179–80, 215, 219, 221; perceived incompetence of, 95–6, 156–8, 188, 196, 201–2, 296n134; property qualifications for, 20, 45–6, 77, 92, 135–6, 142–3, 144, 155, 196, 212–3, 222, 235n10, 236n17, 243n86, 255n9, 270n91, 272n3, 288n46, 317n91; self-informed, 117, 222, 277n82; small juries, 38, 121–2, 124, 131, 179, 185–6, 190, 209–10, 212; unpredictability of, 11, 117, 134, 155–6, 160–1, 165, 171, 183, 196, 197, 204, 208. See also jurors; jury challenges; jury ideology; jury legislation; jury packing; jury selection procedures jury challenges, 21, 46, 70–1, 93, 94, 112, 113, 137, 170, 194, 195, 196, 249n11, 275n51, 303n217 jury de medietate linguae, 195, 310n16, 310n17 jury ideology, 7, 13, 21–2, 23, 29, 64, 69, 92, 106, 131, 134, 176, 179–80, 204–5, 207, 217 jury legislation (England): 1825 jury act, 45, 86, 87 jury legislation (Nova Scotia): 1759 jury act, 20; 1760 jury act, 20; 1777 jury act, 20; 1796 jury act, 21, 23–4, 30, 34, 36; 1825 jury act, 23; 1833 jury act, 35, 59, 272n3; 1838 jury act, 30, 59–60, 61, 62; 1840 jury act, 63; 1845 jury act, 76–7; 1846 jury

329

act, 77; 1848 jury act, 102; 1854 jury act, 131; 1856 jury act, 102, 119–24; 1865 jury act, 129–30; 1898 jury act, 190 jury legislation (Upper Canada / Ontario): 1792 jury act, 45; 1794 jury act, 45–6, 50, 96–7, 249n11; 1808 jury act, 46; 1850 jury act, 14, 96, 98, 133–48, 152, 154, 155, 170–1, 193, 212, 218, 219, 220, 288n49; 1851 jury act, 146, 220; 1853 jury act, 148–9; 1856 jury act, 151; 1858 jury act, 152, 166, 169, 171; 1879 jury act, 193, 210–4; 1882 jury act, 214; 1883 jury act, 319n128; 1892 jury act, 210; 1894 jury act, 210 jury packing, 9, 10, 12, 14, 16, 220; declining fear of, 210; in Ireland, 70–1, 79; in Lower Canada, 95; in Nova Scotia, 13–14, 21, 64, 69–76, 78-9, 101, 102, 105–7, 110–11, 130–1, 274n30; in Upper Canada (Ontario), 14, 50, 57, 80–2, 84–5, 87, 89, 92, 93–6, 97, 133, 134, 135, 137, 138, 144; 152, 153, 154, 157–8, 166, 170, 192–6, 212, 214, 218–9, 271n94 jury selection procedures: in Cape Breton, 236n17; in England, 90, 96; in Nova Scotia 10, 13, 19–21, 23–4, 31, 34–5, 41–2, 57, 58–60, 77, 78–9, 99, 102, 129–30, 176, 179, 185–6, 218, 220, 307n48, 308n65; in the United States, 88; in Upper Canada (Ontario), 10, 13, 14, 45–6, 51, 86, 88–9, 92, 135–7, 148–9, 152, 157–8, 170, 193–4, 212–13, 218, 220, 284n14, 284n17 justices of the peace. See magistrates Karsten, Peter, 314n50

330

Index

Kavanagh, Laurence, 64 Kennedy, James, 112, 114, 121 Kennedy, Owen, 310n17 Kent County, 50, 147 Kerby v. Lewis, 158 Kings County, 19, 26, 61, 119, 126, 127, 183 Kingston, 44, 47, 83, 94, 95, 166 Kingston Chronicle and Gazette, 90 Kinney, Joseph Roberts, 188 Ladd, Alvaro, 94 La Fontaine, Louis-Hippolyte, 53, 54, 96 Lambton, County of, 153 Lanark and Renfrew, United Counties of, 140, 146, 294n104, 302n199 Langbein, John, 5 Laurence, George Craigie, 272n5 Law Commission of Canada, 223 Law Reform Act (Ontario), 196–8, 207, 214 Law Society of Upper Canada, 162, 197 Lawson, William, 59 lawyers. See legal profession Leeds and Grenville, United Counties of, 140, 149, 285n31 legal culture, 7, 41, 78, 131, 218, 230n24 legal formalism, 5, 115 legal profession: expansion, 117–18, 162, 221, 298n166; in England, 11–12, 118, 202–3; in Nova Scotia, 12, 117–18, 177–8, 182–3, 189–90; in United States, 5, 118; in Upper Canada (Ontario), 12, 162–3, 171, 198–9, 298n166; manipulation of juries, 14, 156, 197; relationship with business, 5, 162, 173, 202–3,

204; replacing juries, 6, 162–3, 165, 169, 182–3, 191, 198, 207, 216, 221, 222; role in spreading liberalism, 12, 115, 117–18, 119, 162, 171, 182, 202, 215, 221; role in state formation, 162-3; views of jury, 5–6, 9, 11, 117–18, 121, 169, 182, 183, 189, 221, 222, 303n217. See also professionalization legislative council (Nova Scotia), 30–1, 59, 127, 254n1, 277n80 legislative council (Upper Canada), 44, 82, 85, 86, 90, 93, 96, 97, 148, 153, 154, 164, 168, 169, 303n217 le Marchant, Gaspard, 109 Leslie, James, 140 libel, 9; in Nova Scotia, 22, 57, 63, 66–70, 71–3, 75, 78–9, 104, 106, 107, 112, 125, 131, 183, 184; in Upper Canada, 13, 83–5, 92, 97, 134, 170, 200, 265n18 liberalism, 11–12, 14, 95, 99, 101, 114– 19, 131, 134, 154–61, 166, 169, 171, 173, 182–3, 184, 189, 197, 199, 200, 201, 204, 209, 213, 214, 220–2 Lincoln and Welland, United Counties of, 141 Lincoln County, 146 local government: 4, 9, 13–14, 216, 219–20; in Nova Scotia, 17, 31–7, 68–70, 74, 101, 185, 124–30, 131, 132, 175, 176, 184–9, 191; in Upper Canada, 51–2, 144, 154, 170, 171 London Advertiser, 215 London District, 93 London (Upper Canada/Ontario), 44, 54, 94, 134, 210 Longley, J. Wilberforce, 190 Loyalists, 12, 18, 43, 44, 47 Lumsden, David, 195

Index Lunenburg, 18, 238n35, 278n99 Lunenburg County, 61 Lunenburg Progress, 188, 189 Macdonald, Herbert Stone, 204 Macdonald, John A., 51, 134, 144, 151–2, 165–7, 169, 176–7, 196 Macdonald, John Sandfield, 55, 177, 196, 197 Mackenzie, William Lyon, 82, 83, 85, 87, 89, 93, 94, 153 magistrates: appointment of, 13, 32, 73, 102–3, 131, 186, 187, 191, 219; as grand jurors, 46, 92; complaints about, 32–3, 63, 104–6, 187; judicial roles of, 38, 44, 48, 115, 163 magistrates’ affair, 13–14, 102–4, 124, 130, 134; effect on jury selection, 57, 59–63, 65–6, 71, 76–7, 78, 102–10, 130–1, 219, 274n30, 308n65; effect on local government, 4, 9, 13, 31–4, 37, 51–2, 68, 124–8, 175, 184–9, 191, 216 Maitland, Peregrine, 84 Mallory, Benajah, 81 Manchester, Township of, 185 Markham, 203, 212 Marshall, John Joseph, 33–7 Martell, Henry, 126 Mayor’s Court. See courts McCord, W.K., 293n95 McCully, Jonathan, 108, 180 McDougall, William, 203 McGee, Thomas D’Arcy, 192, 193, 195–6 McKay, Ian, 11 Mckenzie, Kenneth, 194 McMahon, John, 194 McNairn, Jeffrey, 66–7, 85, 160, 271n95

331

McVity, William, 143 Medford, Township of, 185 Menonists, 248n9 Merritt, William Hamilton, 53 Mill, John Stuart, 232n35 mixed jury. See jury de medietate linguae Monk, George William, 212 Montgomery, John, 94 Montreal, 51, 159 Montreal Herald, 95 Moodie, J.W. Dunbar, 145, 264n4 Morin, Augustin-Norbert, 148 Morning Chronicle (Halifax), 73, 181, 182 Morning Post, 67, 104 Morris, William, 85 Morrison, Joseph Curran, 194 Mowat, Oliver, 165–7, 169, 197, 198, 199, 200, 203, 205–6, 209, 212, 214 municipal government. See local government Murdoch, Beamish, 39, 67 Murray, David, 30, 81 Musquodoboit, 129, 282n148 Nation, 196, 201–2 Neal, David, 74 New Brunswick, 18, 44, 64, 87, 121–2, 178, 193, 223 New Glasgow, 186 Niagara, District of, 49, 81, 82, 146, 158 Norfolk County, 49, 139, 140, 142, 143, 149 North American Semi-Weekly, 148, 165 North Sydney Herald, 180–1 Northumberland and Durham, United Counties of, 144, 301n189 Notman, William, 254n71

332

Index

Novascotian, 22, 26, 28–9, 33, 34, 60, 65, 68, 71, 72, 73, 74, 106, 107, 122 Nugent, Richard, 69, 71–2, 73, 75, 78, 106, 219 O’Connell, Daniel, 65, 70–1, 72, 73, 75, 76, 79, 108, 134 Ontario Law Reform Commission, 223 Ontario Royal Commission Inquiry into Civil Rights, 222–3 Ottawa, 44, 176, 178, 195, 199 Ottawa Times, 155 Owen Sound, 145 Pardoning Act (Upper Canada), 93 Parker, Nancy, 6, 163, 236n23, 309n72 Parrsborough, 26 patronage, 8, 10, 52, 54, 62, 67, 79, 82, 103, 104, 111, 126, 127, 128, 185, 186, 187, 189, 191 Patton, James, 168–9 Peel, Robert, 45, 86, 87 Penetanguishine, 145 peremptory challenges. See jury challenges Perry, George, 320n3 Perry, Peter, 49, 88–90, 91, 267n44 Perth County, 141, 147 Perth Courier, 50, 138, 151, 155, 160, 208 Peterborough and Victoria, United Counties of, 144 petit jury. See jury petty jury. See jury Phillips, Jim, 38–9, 62 Pickton, Robert, 223 Pictou, 39, 104, 110, 119, 186, 188, 234n4 Pictou County, 18, 61, 187

Pictou Observer, 72 Planters, 18 plea bargaining, 4–5, 227n9, 229n17 political parties, 8–9, 217, 218; in Nova Scotia, 63, 66–8, 73, 78, 101, 102–4, 114, 127, 131, 190; in the United States, 258n41; in Upper Canada, 80, 82, 97, 98, 133, 160 Powell, Grant, 251n29 Preeper, George, 113–14, 116 press, 8, 9, 217; freedom of the press, 11, 48, 57, 66–70, 72, 76, 78, 217; in Nova Scotia, 57, 63, 66–70, 72, 73, 78, 84–5; in Upper Canada, 48, 81, 83–5, 97. See also bourgeois public sphere; libel Price, James Hervey, 254n71 Prince, Albert, 204 Prince, John, 134, 168 Prince Edward, County of, 143 Prince Edward Island, 223 professionalization, 5–6, 11, 173, 221, 222; in Nova Scotia, 111, 114, 115, 175, 177, 179, 180–1, 182, 189–90, 191; in Upper Canada (Ontario), 134, 155, 162–4, 166, 169, 171, 196, 198, 207, 209–10, 214. See also legal profession prothonotary, 20–1, 22, 34, 35, 60, 72, 76, 116, 235n13, 255n10, 271n1 Pryor, William, Jr., 68, 69 Pugwash, 106 Quakers, 248n9 Quebec City, 149, 159 Queens County, 61, 127, 236n23 Queen v. Patterson, 107 Quinn, John, 194 Radforth, Ian, 162

Index Rebellions of 1837–8, 44, 48, 80, 90, 93–5, 218 Recorder’s Court. See courts reform movement: 13–14, 99, 218–20, in Nova Scotia, 57, 58–9, 64–78, 101–6; in Upper Canada, 54, 80, 82–93, 96–8, 133–4, 136, 144, 170 Regina v. Fellowes et al., 156 Regina v. Kennedy, 195 Register, 74 Remsheg, 24 Renfrew County, 211 Renfrew Mercury, 215 responsible government, 8–9, 12, 13– 14, 99, 218–20; in Nova Scotia, 19, 35, 58, 63–78, 79, 101, 102–4, 114, 124–6, 127–8, 130–1, 175, 179–80, 184–5, 186–9, 190–1, 218–20; in Upper Canada, 44, 54, 55–6, 80, 82–3, 133–4, 157, 162, 168–9, 170, 192, 193, 209, 212, 215, 218–20 Richards, William Buell, 54–5, 144, 146, 148, 165, 196 Richmond County, 61, 116 Risk, R.C.B., 115 Ritchie, John N., 190 River Phillip, 24, 238n32 Roach, William Henry, 39 Robinson, John Beverley, 84, 86, 87, 138, 141, 143, 158–9, 167, 296n138, 297n151, 302n198 Rolph, John, 82 Roman Catholics, 16, 64–5, 70, 71, 73–5, 76, 77, 79, 101, 112, 113, 114, 159, 160, 193–6 Romney, Paul, 6, 94, 200, 205, 265n18 Ross, Alexander, 212, 319n127 Samson, Daniel, 115

333

Sanderson & Murray v. The Kingston Marine Railway Company, 158 Sawers, William Q., 33, 71, 242n81 Schwoerer, Lois G., 7 Scott, John, 55 Seaman v. Campbell, 107–8, 110 Sedition Act, 84, 266n34 seditious libel. See libel Sessions. See courts, local government Shelburne, 25, 26, 39, 41, 178, 236n23 Shelburne County, 29–30, 61 sheriffs: appointment of, 81, 243n87, 272n5; in England, 20, 251n31; in Nova Scotia, 20–1, 22, 23, 30, 34–6, 57, 58, 59–60, 61, 64, 65, 66, 72, 76, 78, 102, 107, 111, 131, 179, 219, 272n5; in Upper Canada, 13, 45–6, 49, 50, 56, 80–2, 83, 85, 86, 87, 88, 89, 91, 92, 94, 96–7, 137, 138, 144, 145, 148, 149, 151, 152, 154, 194, 211, 218, 248n9, 249n10, 249n12, 264n4, 271n94, 291n83, 310n17 Sherwood, George, 53, 55 Simcoe, John Graves, 44, 47 Simcoe County, 139, 141, 142, 145, 153, 163 Small, Doug, 216 Smith, Henry, 134–5 Smith, Henry W., 178, 179–80 Smith, Sidney, 152–3, 154, 166, 169, 171 special jury: complaints about, 22–3, 71–2, 73, 116; cost, 116, 252; in Britain, 70, 237n26, 261n61; in Nova Scotia, 22–3, 30, 71, 73, 74, 75, 104, 116, 120, 237n24, 272n3; in Upper Canada (Ontario), 46, 50, 81, 89, 92, 211, 252n36, 284n17; selection

334

Index

procedures for, 22, 46, 284n, 272n3, 284n17 special verdicts, 184, 200 Speedy Trials Act, 175, 176–7, 181–2, 184, 190, 199, 200, 210, 214, 312n25 Star Chamber, 180 state formation, 10, 217, 220, 221–2; in Nova Scotia, 58–63, 78, 105, 131; in Upper Canada, 52, 54, 138–9, 141–2, 162–3, 170, 214 St Catharine’s Constitutional, 156, 198, 208 Stewart, Alexander, 39, 59, 107–8 St Mary’s, 28, 37, 186 Stormont, Township of, 185 Story, Joseph, 121 St Thomas Liberal, 267n48 St Thomas Weekly Dispatch, 151 Stuart, George Okill, 149 summary justice, 37–8, 41, 45, 84, 114, 116, 134, 161, 164, 169, 171, 198, 300n179, 301n191 Sun and Advertiser, 116–17, 131 Supreme Court of Canada. See courts Supreme Court of Nova Scotia. See courts Sutherland, David, 102 Sutherland v. Black, 158 Swainger, Jonathan, 176–7, 230n24 Sydney, 25, 41 Sydney County, 38, 61, 244n102 taxation, 17, 32, 48, 51, 53, 55, 68–9, 116, 120, 128, 129, 146, 148, 150, 151, 184, 188, 189, 221, 254n71, 290n70 Theller, Edward Alexander, 94 Thompson, John S.D., 182–3, 189 Tillsonburg Observer, 159, 197 Tilly, Thomas, 143

Times (Halifax), 75 Times (London), 122 Torbolton Township, 151 Tories, 8–9, 222; in Nova Scotia, 13– 14, 57, 64, 65, 66, 67, 71–3, 76, 77–8, 99, 101, 104, 105, 107, 219; in Upper Canada, 80, 82–3, 85, 86, 90–2, 93, 94, 97–8, 170, 218 Toronto, 44, 48, 50, 93, 94, 137, 142, 143, 145, 156, 165, 167, 168, 193, 198 Toronto Board of Trade, 168 Toronto Evening Star, 206 Toronto Examiner, 85, 138 Toronto Globe, 48, 83, 134, 153, 157, 160, 167, 197, 206, 208 Townshend, Charles, 190 treason trials, 93–5 Trow, James, 196, 312n26 Truro, 25, 35–6, 186, 244n97 Tunkers, 248n9 Tupper, Charles, 119 Turcotte, Joseph-Édouard, 151 unanimity rule, 221; in England, 124; in Nova Scotia, 120, 121, 122–4, 131; in Upper Canada (Ontario), 161, 167–9, 171, 192, 196, 197–8, 204–6, 214, 302n198 Uniacke, Andrew Mitchell, 263n93 Uniacke, James Boyle, 63, 102, 109 Uniacke, Richard John, 64 United States constitution, 4–5, 227n7 Upper Canada Court of Common Pleas. See courts Upper Canada Law Journal, 156, 158, 163, 165, 168, 169, 176 Voice of the Fugitive, 143 voluntary associations, 9, 66, 257n38

Index Wallace, 24, 106 Weaver, John C., 196 Webster, William Bennett, 119 Weekly Sentinel Review, 213, 317n91 Weeks, Otto Schwartz, 183 Wentworth and Halton, United Counties of, 140, 145 Western Herald, 95 Whalen, Daniel, 194 Whelan, Patrick James, 192, 195–6, 210 White, Alonzo Joseph, 183 Whitney, James, 206 Wilkins, Lewis, 113, 121 Wilkins, Martin, 104, 119, 129 Willcocks, Joseph, 82 Wilmot Township, 185 Wilson, Adam, 199, 310n16, 312n25 Wilson, John, 53–4, 55, 194, 254n71 Wilton, Carol, 82, 162

335

Windsor (Nova Scotia), 24, 186, 240n45 Windsor (Upper Canada / Ontario), 50, 95 Wood, Edmund Burke, 204 Wright, Barry, 94 Wynne, Graeme, 63 Yarmouth, 25, 128, 188 Yarmouth County, 61, 127, 271n1 Yarmouth Herald, 67–8 York County, 142, 145, 199, 207, 211, 310n17, 319n127 York, Ontario, and Peel, United Counties of, 142, 144, 148, 149, 292n85 Young, George Renny, 75–6 Young, William, 61, 64, 76, 77, 105, 112, 113, 118, 119, 272n5, 282n148

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publications of the osgoode society for canadian legal history 2009 William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand R. Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada Barry Wright and Susan Binnie, eds., Canadian State Trials, Volume III: Political Trials and Security Measures, 1840–1914 Robert J. Sharpe, The Last Day, the Last Hour: The Currie Libel Trial (paperback edition with a new preface) 2008 Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 Jim Phillips, R. Roy McMurtry, and John T. Saywell, eds., Essays in the History of Canadian Law, Volume X: A Tribute to Peter N. Oliver Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada Hamar Foster, Benjamin Berger, and A.R. Buck, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies 2007 Robert Sharpe and Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood Lori Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921–1969 Jonathan Swainger, ed., A History of the Supreme Court of Alberta Martin Friedland, My Life in Crime and Other Academic Adventures 2006 Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950: A Biographical History R.C.B. Risk, A History of Canadian Legal Thought: Collected Essays, edited and introduced by G. Blaine Baker and Jim Phillips 2005 Philip Girard, Bora Laskin: Bringing Law to Life Christopher English, ed., Essays in the History of Canadian Law: Volume IX – Two Islands: Newfoundland and Prince Edward Island Fred Kaufman, Searching for Justice: An Autobiography 2004 Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle Frederick Vaughan, Aggressive in Pursuit: The Life of Justice Emmett Hall John D. Honsberger, Osgoode Hall: An Illustrated History Constance Backhouse and Nancy Backhouse, The Heiress versus the Establishment: Mrs Campbell’s Campaign for Legal Justice 2003 Robert Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey

2002

2001

2000

1999

1998

1997

Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699–1832 George Finlayson, John J. Robinette, Peerless Mentor: An Appreciation Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Brode, Courted and Abandoned: Seduction in Canadian Law David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume II: Rebellion and Invasion in the Canadas, 1837–1839 Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen Barry Cahill, ‘The Thousandth Man’: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in Nineteenth-Century Ontario James W. St.G. Walker, ‘Race,’ Rights and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992

1996 Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII – Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 1995 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI – British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion 1994 Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V – Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 1993 Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution 1992 Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty’s Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography 1991 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada 1990 Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III – Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IV – Beyond the Law: Lawyers and Business in Canada, 1830–1930 1989 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson 1988 Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge 1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957

1986 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1984 Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law 1983 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II 1982 Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 1981 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I