Hostname: page-component-848d4c4894-hfldf Total loading time: 0 Render date: 2024-05-25T15:29:33.465Z Has data issue: false hasContentIssue false

“Too Many Courts and Too Much Law”: The Politics of Judicial Reform in Nova Scotia, 1830–1841

Published online by Cambridge University Press:  08 February 2012

Extract

The 1830s was Nova Scotia's “Age of Reform.” Although historians have documented the growing tensions between elected Assembly and appointed lieutenant governor and Council, the concomitant attacks on the established economic elite, and the rise of a distinct party in colonial politics, little attention has been paid to the role played by the colony's courts and judges in this crucial decade. This lacuna is surprising, because reformers were convinced that the judges of the Nova Scotia Supreme Court (NSSC) were bulwarks of the old order and barriers to progress, and as their movement gained influence in the 1830s it brought the judges and the court system to the fore. This period saw numerous proposals for reform to the colony's laws and legal system, some effected and others not. Here we examine those aspects of the reform platform that were most hotly contested precisely because they exemplified the ways in which controversies about the legal system both reflected and exacerbated broader political and social change. The most important issues were judicial fees and the role of the chief justice as head of the Tory-dominated lieutenant governor's Council. We also examine two other matters in which the judicial system was directly linked to reformers' general demands for a system of government more responsive to the needs of ordinary Nova Scotians: judicial salaries and the role of the lower civil courts.

Type
Articles
Copyright
Copyright © the American Society for Legal History, Inc. 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. On Jacksonian democracy and the courts see: Croley, Steven P., “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” University of Chicago Law Review 62 (1995): 689794CrossRefGoogle Scholar; Nelson, Caleb, “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America,” American Journal of Legal History 37 (1993): 190224CrossRefGoogle Scholar; Pratt, Walter F., “The Struggle for Judicial Independence in Antebellum North Carolina: The Story of Two Judges,” Law and History Review 4 (1986): 129–59CrossRefGoogle Scholar; Hall, Kermit, “The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary,” Historian 45 (1983): 337–54CrossRefGoogle Scholar; Hachey, R. Lawrence, “Jacksonian Democracy and the Wisconsin Constitution,” Marquette Law Review 62 (1978): 485529Google Scholar; Longaker, Richard P., “Andrew Jackson and the Judiciary,” Political Science Quarterly, 71 (1956): 341–64CrossRefGoogle Scholar; Norton, Clark F., “Judicial Reform in Michigan Between Two Constitutions, 1835–1850,” Michigan Law Review, 51 (1952): 203–60CrossRefGoogle Scholar; and Haynes, Evan, The Selection and Tenure of Judges (Newark: National Conference of Judicial Councils, 1944)Google Scholar.

2. Quoted in Beck, J. Murray, The Politics of Nova Scotia: Volume One: 1710–1896 (Tantallon, Nova Scotia: Four East, 1985), 104Google Scholar. What follows is derived from this and from Beck, J. Murray, The Government of Nova Scotia (Toronto: University of Toronto Press, 1957), 128–33CrossRefGoogle Scholar; Beck, J. Murray, Joseph Howe: Volume One: Conservative Reformer, 1804–1848 (Montreal and Kingston: McGill-Queen's University Press, 1982)Google Scholar; and Cuthbertson, Brian, Johnny Bluenose at the Polls: Epic Nova Scotian Election Battles, 1758–1848 (Halifax: Formac, 1994)Google Scholar. For the Nova Scotia events in comparative perspective, see Buckner, Philip A., The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport: Greenwood, 1985)Google Scholar.

3. Prior to 1838, Nova Scotia had a Council of Twelve, which functioned in both executive and legislative capacities, not two separate councils.

4. On mixed monarchy in British North America, see McNairn, Jeffrey L., The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press, 2000)CrossRefGoogle Scholar.

5. See Marquis, Gregory, “Anti-Lawyer Sentiment in Mid-Victorian New Brunswick,” University of New Brunswick Law Journal 36 (1987): 163–74Google Scholar. For the United States see Gawalt, Gerard N., “Sources of Anti-Lawyer Sentiment in Massachusetts, 1740–1840,” American Journal of Legal History 14 (1970): 283307CrossRefGoogle Scholar.

6. See, especially, Girard, Philip, Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax. (Toronto: University of Toronto Press and the Osgoode Society, 2011)CrossRefGoogle Scholar; Girard, , “‘I will not pin my faith to his sleeve’: Beamish Murdoch, Joseph Howe, and Responsible Government Revisited,” Journal of the Royal Nova Scotia Historical Society 4 (2001): 4869Google Scholar. See also Marquis, Gregory, “In Defence of Liberty: 17th Century England and 19th Century Maritime Political Culture,” University of New Brunswick Law Journal 42 (1993): 6994Google Scholar, and the recent literature on the Joseph Howe trial for libel, especially Campbell, Lyndsay, “Licence to Publish: Joseph Howe's Contribution to Libel Law in Nova Scotia,” Dalhousie Law Journal 29 (2006): 79116Google Scholar.

7. See, generally, Harvey, D.C., “The Intellectual Awakening of Nova Scotia,” Dalhousie Review 13 (1933): 122Google Scholar. See also Goodwin, Daniel C., “‘The Very Vitals of Christianity’: The Baptismal Controversy and the Intellectual Awakening in Nova Scotia, 1811–1848,” Nova Scotia Historical Review 15 (1995): 7287Google Scholar; Taylor, M. Brook, “Thomas Chandler Haliburton as a Historian,” Acadiensis 13 (1984): 5068Google Scholar; and Girard, Philip, “Themes and Variations in Early Canadian Legal Culture: Beamish Murdoch and his Epitome of the Laws of Nova Scotia,” Law and History Review 11 (1993): 101–44CrossRefGoogle Scholar.

8. Gwyn, Julian, Excessive Expectations: Maritime Commerce and the Economic Development of Nova Scotia, 1740–1870 (Montreal and Kingston: McGill-Queen's University Press, 1998), 4389Google Scholar; Ommer, Rosemary E., “The 1830s: Adapting Their Institutions to Their Desires,” in The Atlantic Region to Confederation: A History, eds. Buckner, Phillip A. and Reid, John G. (Toronto: University of Toronto Press, 1994), 284306Google Scholar.

9. The debt figures are from 1839 and 1840. See Journals of the House of Assembly of Nova Scotia [hereafter Assembly Journals], 1839, Appendix 28, and 1840, Appendix 35. The roads figure is at ibid., March 30, 1839, 619. For roads generally, see Mackinnon, Robert, “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): 184–6CrossRefGoogle Scholar.

10. When not otherwise referenced, the summary that follows is drawn from Cahill, J. Barry and Phillips, Jim, “Origins to Confederation: The Supreme Court, 1754–1867,” in The Supreme Court of Nova Scotia 1754–2004: From Imperial Bastion to Provincial Oracle, eds. Girard, Philip, Phillips, Jim, and Cahill, J. Barry (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2004), 53139CrossRefGoogle Scholar.

11. For the growth and operation of the circuit see Phillips, Jim and Girard, Philip, “Courts, Communities, and Communication: The Nova Scotia Supreme Court on Circuit, 1816–1850,” in The Grand Experiment: Law and Legal Culture in British Settler Societies, eds. Foster, Hamar, Buck, A. R., and Berger, Benjamin (Vancouver: University of British Columbia Press and Osgoode Society for Canadian Legal History, 2008), 117–34Google Scholar.

12. See Council Minutes, September 1, 1785, in Assembly Journals, 1836, Appendix 76; and Novascotian, March 10, 1836.

13. See Administration of Justice in Cape Breton Act, Statutes of Nova Scotia [hereafter S.N.S.] 1823, c. 36, and Equal Administration of Justice Act, S.N.S. 1824, c. 38. For the vote and debates see Assembly Journals, March 4, 1824, and Novascotian, February and March 1824, passim.

14. See James Stewart to Peleg Wiswall, March 8 and 22, 1824, Nova Scotia Archives and Records Management [hereafter NSARM], Wiswall Papers, Manuscript Group [hereafter MG], vol. 980, Nos. 92 and 96.

15. Master of the Rolls Act, S.N.S. 1826, c. 11.

16. See ‘Report of Assembly Proceedings,’ Novascotian, March 18, 1830.

17. Assembly Journals, February 18, 1830. We have not been able to locate the judges' memorial, but its content is clear from the debate over it.

18. The judges were also divided over whether they should link a salary increase to giving up their fees. Lewis Wilkins wanted to do so, but the other puisnes (Halliburton and James Stewart) disagreed with the tactic, in part because they knew that Blowers, who drew the lion's share of the fees, would never support such a proposal. Stewart and Halliburton also disliked the proposal because it would freeze remuneration; if circuit litigation increased they would be better off with the existing £600 plus fees. See James Stewart to Peleg Wiswall, February 16 and March 12, 1827, and February 23, 1829, NSARM, Wiswall Papers, MG 1, vol. 980, Nos 114, 116, and 140.

19. The debates over salaries were reported in ‘Report of Assembly Proceedings,’ Novascotian, March 18 and 24, 1830.

20. See also the comment of Alexander Stewart, lawyer and future master of the rolls, that the NSSC judges were much less well paid than those in New Brunswick (‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830), and “Selden” ‘The Judges’ Memorial,' Novascotian, March 18, 1830, which offered unflattering comparisons with a variety of other colonies.

21. The chief justices of Upper and Lower Canada both received £1,500 sterling, almost twice as much as Nova Scotia's, and that of New Brunswick received £900 sterling. But those of Newfoundland and Prince Edward Island received only £700 sterling. Puisne judges in the first three named colonies were all paid rather better than their Nova Scotia counterparts—the puisne judges of the Upper Canada Court of King's bench, for example, received £900 sterling.

22. ‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830. In fact that is exactly how they often travelled on circuit–when there was a stage coach. For some circuits horseback and open boats were the order of the day. See Phillips and Girard, “Courts, Communities, and Communication.”

23. Obviously we are drawing here on Douglas Hay's famous argument that in eighteenth-century England judges on circuit accentuated and exploited the “majesty” of the law as part of the ideology that ensured obedience to authority: see “Property, Authority, and the Criminal Law,” in Hay, Douglas, Linebaugh, Peter, and Thompson, E.P., eds., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London: Allen, 1975), 1763Google Scholar.

24. This argument was not reported in the Novascotian, but Murdoch and others responded to it; therefore, it must have been made: see ‘Report of Assembly Proceedings,’ Novascotian, March 18 and 24, 1830. United States salaries were lower than those in British North America, although there were considerable differences among the states. The chief justice of New Hampshire received $1,500 and that of Massachusetts received $3,500. See Reid, John Philip, Controlling the Law: Legal Politics in Early National New Hampshire (DeKalb, IL: Northern Illinois University Press, 2004)Google Scholar, and Davis, William T., History of the Judiciary of Massachusetts (Boston: Boston Book Company, 1900)Google Scholar. The United States dollar exchanged at five to the pound sterling at this time (see Pennington, James, The Currency of the British Colonies [London: Clowes, 1848]Google Scholar), meaning that even Massachusetts paid its chief justice less than Nova Scotia did, and New Hampshire paid its considerably less.

25. ‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830. This was a view consistent with Murdoch's general political philosophy. He was one of the more articulate defenders of the ancien régime's mixed constitution, in which the elected representatives of the people should share power with an appointed elite. See Girard, “Beamish Murdoch, Joseph Howe, and Responsible Government.”

26. ‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830.

27. Assembly Journals, March 15, 1830.

28. See the comments of Lawson and Barry, ‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830.

29. John Young accepted that there had never been “a charge … made against their integrity and purity” and the characters of the men on the bench were “unreproached and irreproachable.” It was therefore “an implied libel to insinuate that the refusal of this petition would endanger their independence”: Ibid.

30. See the various reports on public accounts, contained in the Appendixes to the Journals of the Legislative Assemblies for New Brunswick, Upper Canada and Lower Canada, and Prince Edward Island in the 1830s, available at Early Canadiana OnLine (www.canadiana.org). John Young noted this difference: “if we turn to Canada, he admitted that the Judges there received £1,000 a year but from what fund? Not from the Revenue at the disposal of the legislature, but from the duties … dispensed by the Lords of the Treasury”: ‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830. See below for a further discussion of the civil list and responsibility for the costs of local government.

31. ‘Report of Assembly Proceedings,’ Novascotian, March 18, 1830.

32. Ibid.

33. Assembly Journals, March 15, 1830.

34. There were two other lawyers in the Assembly. S.G.W. Archibald was speaker, and Charles Rufus Fairbanks would appear to have been absent.

35. ‘Report of Assembly Proceedings,’ Novascotian, March 24, 1830. See also Lawson's comment reported in the issue that it was “natural enough for some honourable gentlemen to advocate an increase in salary, because they would in the natural course of things soon become Judges themselves.”

36. Ibid. See also Alexander Stewart's lament in the same issue that “it had been the fashion of late to encourage the idea, that gentlemen of the learned profession were dangerous as legislators,” and he called such attitudes “vulgar prejudice.”

37. Of the fifteen lawyers who served in the tenth through the thirteenth Assemblies, thirteen received official appointments: see Beck, Government of Nova Scotia, 33.

38. Novascotian, March 18, 1830; and Sampson S. Blowers to Peleg Wiswall, March 18, 1830, NSARM, Wiswall Papers, MG 1, vol. 979, Folder 3, No 16.

39. The general issues discussed here are dealt with in Harvey, D.C., “The Civil List and Responsible Government in Nova Scotia,” Canadian Historical Review 28 (1947): 365–82CrossRefGoogle Scholar, and Burroughs, P., “The Search for Economy: Imperial Administration of Nova Scotia in the 1830s,” Canadian Historical Review 49 (1968): 2443CrossRefGoogle Scholar.

40. The debates and address are in Assembly Journals, March 18, 19, 26, and 29, 1830.

41. For this paragraph see Lord Goderich to officer administering the government, December 4, 1832, in Assembly Journals, 1833, Appendix 2. Colonial Secretary Goderich must have been influenced to suggest an increase by either Halliburton or S.G.W. Archibald, attorney-general and speaker of the Assembly, or both. The two men were rivals for the succession to Blowers and both visited London in the early 1830s and lobbied for the chief justiceship. Goderich proposed a range of £800 to £1,000 for the puisnes, considerably more than they were paid.

42. All discussion of the debates in 1833 is from ‘Report of Assembly Proceedings,’ Novascotian, March 14, 1833. Our limited knowledge of lawyers' salaries suggests that they varied considerably. William Young, a hard-working young man determined to make his way in the world, earned £1,300 in 1830 and £3,600 by 1842: William Laurence, “A Literary Man and a Merchant: The Legal Career of Sir William Young,” PhD diss., Dalhousie University, 2009, 178. However, William Blowers Bliss, who became an NSSC judge in 1834, frequently complained about the difficulties of making a good living as a lawyer. In 1831 he noted: “if I have great good luck and do not die before my seniors I may be shelved as a Judge some ten years hence with 600 pounds currency per annum”: William B. Bliss to Henry Bliss, September 6, 1831, NSARM, Bliss Papers, MG 1, vol. 1598, No 291. Two years later, with a vacancy on the bench and lobbying going on on behalf of Bliss and William Hill to fill it, Bliss, while he would have preferred an appointment as one of the law officers of the crown, knew that he “cannot afford to let the Judgeship” pass: Same to same, February 15, 1833, NSARM, Bliss Papers, MG 1, vol. 1599, no. 4.

43. House of Commons Debates, May 16, 1825, vol. 13, 612–43; May 20, 1825, 801–12; and May 27, 1825, 927–34. For judicial salaries and fees see Duman, Daniel, The Judicial Bench in England, 1727–1875: The Reshaping of a Professional Elite (London: Royal Historical Society, 1982)Google Scholar, and Lemmings, David, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (New York: Oxford University Press, 2000)CrossRefGoogle Scholar. For a detailed analysis of the English fee system, and an argument that fees caused judges to favor plaintiffs to attract business into their courts, see Klerman, Daniel, “Jurisdictional Competition and the Evolution of the Common Law,” University of Chicago Law Review 74 (2007): 11791226CrossRefGoogle Scholar.

44. House of Commons Debates, May 27, 1825, vol. 13, 931.

45. This brief discussion on the United States is based on Pfander, James E., “Judicial Compensation and the Definition of Judicial Power in the Early Republic,” Michigan Law Review 107 (2008): 814Google Scholar, and on an excellent unpublished survey of fees for many officers, Nicholas Parrillo, “The Rise of Non-Profit Government in America: A Preliminary Overview,” (unpublished paper, on file with the authors). As Parrillo notes, at 37, there is very little secondary literature on fees for judges of courts of general jurisdiction. The account of New York that follows is drawn from his very detailed survey at 38–55.

46. There is no study devoted to the judicial fee system in British North America. This summary is from Jim Phillips, “Judges and Coal Miners: The Civil List Dispute and the Nova Scotia Supreme Court, 1830–1850” (unpublished paper), 2009.

47. The only discussion of fees in the Assembly prior to this period can be construed as an acceptance of their validity; in 1787 acting Chief Justice Isaac Deschamps negotiated a deal whereby he received a grant of £200 as a commutation of his 1788 fees. See Assembly Journals, December 4 and 6, 1787. The arrangement is noted in Chief Justice Brenton Halliburton to Thomas James, Deputy Provincial Secretary, March 23, 1836, in Assembly Journals, 1836, Appendix 76. Halliburton stated that the arrangement was with Chief Justice Sir Jeremy Pemberton, and for 1787 as well as 1788. However there is no reference to this in the Assembly Journals, and no such deal could have been struck with Pemberton for 1787, because he was not appointed until August 1788. The puisne judges also seem to have agreed not to take fees for both 1787 and 1788; Assembly Journals, July 6, 1786 and December 3, 1787. No such deal was made with any other Chief Justice, although according to Halliburton's 1836 letter cited above, at one point the Assembly appointed Simon Bradstreet Robie to try to negotiate a commutation with Blowers, but he refused.

48. Editorial, Colonial Patriot, September 8, 1832.

49. In Nova Scotia, the principal sources of such revenue were rent and royalties from the Sydney and Pictou coal mines, fees charged for the issuing of warrants or commissions, and money paid for sales of land: see Phillips, “Judges and Coal Miners.”

50. See Assembly Journals, March 20 and 21, 1834.

51. See ‘Report of Assembly Proceedings,’ Novascotian, April 9 and March 26.

52. See the comments of Lawrence O'Connor Doyle, lawyer and member for the Arichat district on Cape Breton Island, in Novascotian, April 9, 1834.

53. Petitions were presented by George Smith, member for Halifax County, from a public meeting in his Pictou district, “praying that Judges Fees may be abolished”: Assembly Journals, December 15, 1834. For later petitions see below.

54. Assembly Journals, December 4 and 6, 1834. For the bill, see Assembly Journals, December 24, 1834 and January 6, 8, and 9, 1835. The information on fees is in Brenton Halliburton to Sir Rupert George, December 10, 1834, Assembly Journals 1834–1835, Appendix 9. The bill is at NSARM, Record Group [hereafter RG] 5, Series U, [Unpassed Bills], vol. 12, No. 57. In its entirety it read: “Be it Enacted by the Lieutenant Governor Council and Assembly … that from and after the passing of this Act it shall not be lawful for the Chief Justice or for any Judge of His Majesty's Supreme Court within this Province to ask demand or receive any fee or prerequisite whatever for signing any Judgment or Judgments or for any process mesne or final by him or them to be signed, passed, or received or for any paper or document to be filed or entered in the said Court but such Fees and prerequisites of what nature or kind soever heretofore received be and the same are hereby declared to be hereforth and forever abolished.”

55. Journals of the Governor's Council [hereafter Council Journals], January 12, 1835. The Council's action was discovered only after an assembly committee had been appointed to examine the Council Journals re the bill: Assembly Journals, January 30, 1835.

56. Assembly Journals, February 5, 1838.

57. S.N.S. 1787, c. 15.

58. Petition re the fees paid to judges, February 1, 1836, NSARM, RG 5, Series P, [Petitions], vol. 6, no. 38. We have not been able to locate the other two petitions that came in at the beginning of February, but they are mentioned and briefly summarized in ‘Report of Assembly Proceedings,’ Novascotian, February 4, 1836. See also, Petition re the fees paid to judges, February 15, 1836, NSARM, RG 5, Series P, vol. 6, No 48.

59. For the bill, see Assembly Journals, February 1, 2, and 3, 1836. No votes are recorded. The bill is “An Act to abolish the fees at present taken by the Chief Justice and Judges of the Supreme Court throughout this Province”: NSARM, RG 5, Series U, vol. 13, no. 12, February 3, 1836. It is an exact copy of the 1835 bill, laid out in full above. For details of its rejection, see Council Journals, February 3 and 6, 1836, and Assembly Journals, February 19, 1836.

60. ‘Report of Assembly Proceedings,’ Novascotian, March 10, 1836.

61. This was Charles Roach, the member for Shelburne Township; see Ibid.

62. Assembly Journals, March 26, 1836. The address to the crown passed 24–9.

63. “Scrutator,” letter to the editor, Novascotian, March 17, 1836.

64. ‘Report of Assembly Proceedings,’ Novascotian, March 10, 1836.

65. See Klerman, “Jurisdictional Competition.”

66. Brenton Halliburton to T.W. James, March 23, 1836, in Assembly Journals, 1836, Appendix 76. This paragraph is from this source and from “Observations of His Majesty's Council … on the Address of the House of Assembly,” Council Journals, April 20, 1837.

67. Brenton Halliburton to Sir Rupert George, January 18, 1838, in Assembly Journals, 1838, Appendix 2.

68. Brenton Halliburton to T.W. James, March 23, 1836, in Assembly Journals, 1836, Appendix 76.

69. William B. Bliss to Henry Bliss, November 14, 1836, NSARM, Bliss Papers, MG 1, vol. 1599, no. 33.

70. Same to same, May 16, 1836, NSARM, Bliss Papers, MG 1, vol. 1599, no. 29. We do not know exactly when Halliburton proposed his commutation scheme, but Bliss referred to it in this letter as having happened “some time ago.”

71. For the judges' own “observations” on the issue, sent to supplement Halliburton's letter, and for the use of lawyer James Stewart (William Hill's agent) and Henry Bliss (engaged by his brother) to lobby the Colonial Office, see Bliss to Henry Bliss, March 7, May 16, August 19, September 8, and November 14, 1836, NSARM, Bliss Papers, MG 1, vol. 1599, nos. 27, 29, and 31–33.

72. Lord Glenelg to Lieutenant-Governor Campbell, July 16, 1836, Assembly Journals, 1837, Appendix 2. Glenelg's decision was not conveyed to the Assembly until early 1837: Assembly Journals, February 4, 1837.

73. Acadian Recorder, July 23 and 30; August 6, 13, and 27; and September 17, 1836.

74. ‘Election Statement,’ Novascotian, November 17, 1836.

75. Assembly Journals, February 27; March 31; and April 1, 15, and 15, 1837. The bill is at NSARM, RG 5, Series U, vol. 14, no. 133, April 15, 1837. As in 1835 and 1836, it was a very short bill.

76. A much fuller account of the relationship between judicial salaries and fees and the civil list question is contained in Phillips, “Judges and Coal Miners.”

77. Lord Glenelg to Lieutenant-Governor Campbell, October 31, 1837, in Assembly Journals, 1838, Appendix 2. These were smaller increases than the Council had wanted–£1,200 and £700 sterling respectively: Campbell to Glenelg, August 26, 1837, in Assembly Journals, 1838, Appendix 2.

78. William B. Bliss to Henry Bliss, March 8, 1837, NSARM, Bliss Papers, MG 1, vol. 1599, no. 35.

79. Lewis Wilkins Senior, William Hill, and William B. Bliss to Sir Rupert George, January 8, 1838, in Assembly Journals, 1838, Appendix 2; and draft of Brenton Halliburton's Memorial to the Queen, n.d. [c. mid to late 1840s], NSARM, Brenton Halliburton Papers, MG 1, vol. 334, no. 99.

80. See Assembly Journals, January 18, 1839. Note that fees were not “abolished” at this time, they were simply commuted. Abolition came only with the final settlement of the civil list question in 1849: see Civil List Act, S.N.S. 1849, c. 1, s. 2–salaries of all judges to be “without any fees of office whatsoever.”

81. There is not space to detail the aftermath of the fees issue here; it is discussed in detail in Phillips, “Judges and Coal Miners.” Efforts to settle the civil list question continued through the 1840s. Although both sides wanted a settlement, time and again judicial salaries prevented one. With one exception, a series of Civil List Acts passed by the Assembly but rejected by London provided for judges'salaries which were less than those that Glenelg had imposed in 1838, on the grounds that the 1838 salaries included compensation for forgoing illegal fees. The London government always refused to agree to a civil list that included salary reductions for incumbent judges, because incumbents' salaries were a vested right. The Assembly gave in only in 1849, and fees were then finally abolished; see Civil List Act, S.N.S. 1849, c. 1, s. 2.

82. On the use of this analogy in Maritime politics, see Marquis, “In Defence of Liberty,” 87–88.

83. MacNutt, W.S., New Brunswick: A History, 1784–1867 (Toronto: Macmillan, 1963), 186–7Google Scholar. For the New Brunswick judges see the Dictionary of Canadian Biography [hereafter DCB] online (www.biographi.ca) entries for Jonathan Bliss, John Murray Bliss, William Botsford, Ward Chipman Junr, and Ward Chipman Snr, Edward Jarvis, George Ludlow, John Saunders, Joshua Upham, and Edward Winslow. See also Joseph Wilson Lawrence, The Judges of New Brunswick and Their Times (Fredericton: Acadiensis Press, revised 1983 edition).

84. See Riddell, William R., “Judges in the Executive Council of Upper Canada,” Michigan Law Review 20 (1922): 716–36CrossRefGoogle Scholar, and Judges in the Parliament of Upper Canada,” Minnesota Law Review 3 (1918): 163–80Google Scholar. The practice of having judges in councils was prevalent throughout the empire: see Wight, M., The Development of the Legislative Council, 1606–1945 (London: Faber, 1946)Google Scholar.

85. Halliburton was appointed to the Court in 1807 and to the Council in 1816. See also James Stewart (1815 and 1816) and Foster Hutchinson (1810 and 1812).

86. See Supreme Court Act, S.N.S. 1809, c. 15; Equal Administration of Justice Act, S.N.S. 1824, c. 38, s. 6; and Master of the Rolls Act, S.N.S. 1826, c. 11.

87. Murdoch's views are from his Epitome of the Laws of Nova Scotia (4 vols., Halifax: Howe, 1833–34), vol. 3, 61. See, generally, Girard, Lawyers and Legal Culture in British North America.

88. Report from the Select Committee on the Civil Government of Canada (Parliamentary Papers, 1828, Cd 569), 8.

89. See James Stewart's 1829 comment that “puisne judges are, of late, considered as improperly seated in the Council”: Stewart to Peleg Wiswall, April 6, 1829, NSARM, Wiswall Papers, MG 1, vol. 980, no. 144. Stewart also claimed not to be concerned about this for himself; he would be happy, he said, to “quit the board of Wisdom.” In other correspondence at the time Stewart repeated these sentiments. He claimed that he detested “the politics of a little province” and could not understand why his colleague Lewis Wilkins Senior had spent years avidly seeking a seat on Council. He intimated that Halliburton also wanted to be removed from Council; Stewart to Wiswall, February 23 and December 18, 1829, NSARM, Wiswall Papers, MG 1, vol. 980, nos. 140 and 154. See also William B. Bliss to Henry Bliss, April 8, 1829, NSARM, Bliss Papers, MG 1, vol. 1598, no. 272.

90. Lord Goderich to Lieutenant-Governor Sir Peregrine Maitland, December 7, 1830, NSARM, RG 1, vol. 67, no. 88. The same instruction was issued for other colonies; see Copies or Extracts of Correspondence relative to the Constitution of Legislative and Executive Councils (Parliamentary Papers, 1839, Cd 579) [hereafter Copies or Extracts of Correspondence]; Burroughs, Peter, The Canadian Crisis and British Colonial Policy, 1828-1841 (Toronto: Macmillan, 1972), 44Google Scholar.

91. Assembly Journals, February 20, 1834.

92. ‘Report of Assembly Proceedings,’ Novascotian, March 5, 1834. There was a rich irony in Fairbanks' taking this position, because when he was appointed master of the rolls in August 1834 he tried to keep his seat in the Assembly, the various local statutes prohibiting judges from doing so not specifically excluding the master of the rolls. A consequent bill to exclude vice-admiralty and chancery judges from membership met considerable opposition from the legal profession and Fairbanks' friends, who successfully sought to exempt him as an incumbent: see Assembly Journals, December 1834–January 1835, passim; David A. Sutherland, “Charles Fairbanks,” DCB, online edition; and Master of the Rolls and Judge of Vice-Admiralty Act, S.N.S. 1834–1835, c. 26.

93. Assembly Journals, February 20, 1834.

94. William Bliss to Henry Bliss, April 8, 1829 and February 5, 1831, NSARM, Bliss Papers, MG 1, vol. 1598, nos. 272 and 286.

95. ‘Report of Assembly Proceedings,’ Novascotian, February 9 and 16, 1837.

96. ‘Report of Assembly Proceedings,’ Novascotian, February 16, 1837. About Haliburton personally Howe said: “I wish to make no improper charges against the Chief-Justice; I respect his talents and his integrity; … if I were selecting a person to do impartial justice between one man and another—a judge into whose court I would go satisfied that the law would be impartially administered, the Chief-Justice would perhaps be the man.” Halliburton had been the presiding judge in Howe's libel trial in 1835.

97. ‘Report of Assembly Proceedings,’ Novascotian, February 9, 1837.

98. See Howe's assertion of “the influence which the Chief-Justice wields over the hopes, and fears, and prospects of some seventy or eighty lawyers and several hundred students, spread over the country, who naturally imbibe his political opinions, and are apt to support him against the views and interests of the people”: ‘Report of Assembly Proceedings,’ Novascotian, February 16, 1837.

99. Lewis Morris Wilkins Junior, son of a Supreme Court judge, James Boyle Uniacke, William Frederick Desbarres and Alexander Stewart–all lawyers–denounced the idea. See ‘Report of Assembly Proceedings,’ Novascotian, February 9 and 16, 1837.

100. Assembly Journals, March 1 and April 13, 1837. The address stated: “this Assembly is convinced that the presence of the Chief Justice at the Council Board has a tendency to lessen the respect which the People ought to feel for the Courts over which he presides.”

101. See especially Lawrence Doyle's comments in ‘Report of Assembly Proceedings,’ Novascotian, February 23, 1837.

102. Assembly Journals, February 27, 1837.

103. Ibid., March 3, 1837.

104. ‘Report of Assembly Proceedings,’ Novascotian, February 16, 1837.

105. ‘Report of Assembly Proceedings,’ Novascotian, February 23 and March 9, 1837.

106. ‘Report of Assembly Proceedings,’ March 10, 1836. When in March 1836 the Assembly addresed the crown on the topic, it had been equally blunt: “Your Majesty's loyal Subjects are thus injured, and have been twice refused the means of redress from that Branch over whom the Chief Justice presides”: ‘Report of Assembly Proceedings,’ Novascotian, April 6, 1836.

107. ‘Report of Assembly Proceedings,’ Novascotian, February 9 and 16 and March 2, 1837.

108. ‘Report of Assembly Proceedings,’ Novascotian, February 23, 1837.

109. “Has the breath of slander ever dared to insinuate that there has been partiality in the exercise of his judicial functions, or that his mingling in politics has, in fact, tainted the Ermine of Justice? No! not a man will prefer such a charge”: ‘Report of Assembly Proceedings,’ Novascotian, February 16, 1837.

110. This paragraph is from “Observations of His Majesty's Council … on the Address of the House of Assembly,” Council Journals, April 20, 1837.

111. Lord Glenelg to Lieutenant-Governor Campbell, April 30, 1837, in Copies or Extracts of Correspondence, 12. For the receipt of these instructions see Assembly Journals, January 29, 1838. See, generally, on Councils, MacNutt, W.S., The Atlantic Provinces: The Emergence of Colonial Society, 1712–1857 (Toronto: McClelland and Stewart, 1965)Google Scholar, chap. 8. London also ordered that four assemblymen be appointed to the executive council and that favoritism in council appointments toward adherents of the Church of England and the Halifax commercial elite be ended.

112. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838.

113. See, for example, the comment of William Roach of Annapolis in a debate on a proposal to abolish the ICCPs in 1829 that “the three men who got the situations [of Divisional Chief Justice] had promises of them before the Bill was passed. The bill could not be an act of the country, but was carried by individual interests.” ‘Report of Assembly Proceedings,’ Novascotian, February 26, 1829.

114. ‘Report of Assembly Proceedings,’ Novascotian, March 1, 1838.

115. For the 1840 and 1841 votes see Assembly Journals, January 15, 1840 and February 23, 1841. For the Legislative Council's rejection in 1840 see Journals of the Legislative Council, March 14, 1840.

116. Courts Act, S.N.S. 1841, c. 3. An additional saving resulted from appointing one of the divisional chief justices, Thomas Chandler Haliburton, to the NSSC. The pension of £300 a year given the Divisional Chief Justices was to cease if they took other official employment “of equal or greater value” than the pension: Courts Act, ss. 7 and 8.

117. See Supreme Court Circuit Act, S.N.S. 1837, c. 54, s. 5.

118. ‘Report of Assembly Proceedings,’ Novascotian, March 16, 1836.

119. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838.

120. Brown, R. Blake, “Storms, Roads and Harvest Time: Criticisms of Jury Service in Pre-Confederation Nova Scotia,” Acadiensis 36 (2006): 93111Google Scholar. For examples, see Assembly Journals, February 13, March 7, and March 20, 1837; April 1, 1838; and February 25, 1839.

121. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838.

122. ‘Report of Assembly Proceedings,’ Novascotian, March 22, 1838.

123. See Phillips and Girard, “Courts, Communities, and Communication.”

124. Mackinnon, “Roads, Cart Tracks, and Bridle Paths,” esp. 184–8.

125. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838.

126. See letter to the editor and ‘Report of Assembly Proceedings,’ Novascotian, March 23, 1837, and comments of Hugh Bell, member for Halifax Township, reported in ‘Report of Assembly Proceedings,’ Novascotian, March 1, 1838.

127. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838.

128. ‘Report of Assembly Proceedings,’ Novascotian, March 22, 1838.

129. ‘Report of Assembly Proceedings,’ Novascotian, March 22 and 29, 1838.

130. Quotations from ‘Report of Assembly Proceedings,’ Novascotian, February 17, 1836 and February 15, 1838.

131. ‘Report of Assembly Proceedings,’ Novascotian, March 22, 1838.

132. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838.

133. For an excellent Canadian discussion of state formation see Greer, Allan and Radforth, Ian, eds. Colonial Leviathan: State Formation in Mid-Nineteenth-Century Canada, (Toronto: University of Toronto Press, 1992)Google Scholar.

134. Novascotian, March 22 and 29, 1838.

135. McNairn, The Capacity to Judge, 424.

136. ‘Report of Assembly Proceedings,’ Novascotian, March 16, 1836. See also, among many others, the comments of Henry Goudge, William Holland, and George Smith on the alleged unpopularity of the inferior courts, reported in ibid., February 15, 1838.

137. ‘Report of Assembly Proceedings,’ Novascotian, February 15, 1838. See also in the same issue the comments of Gloud McLellan and of William Young, the latter referring to the “secret history of that memorable transaction.”

138. ‘Report of Assembly Proceedings,’ Novascotian, March 1 and 22, 1838. See also the comments of William Holland in the issue of February 15, 1838.

139. Across three votes on abolition of the ICCP in 1836, 1838, and 1839, discussed subsequently, lawyers voted seven times for abolition and nineteen times against it.

140. In 1838, six lawyers voted for reduction and two voted against, and in 1839 they voted five to three for reduction. See below for the source for this calculation.

141. In addition to the popularity argument, on a number of occasions it was suggested that abolition would create a problem for it would remove from the sessions the position of president; presumably as a result some of the reform bills retained the divisional chief justices in that role, on reduced salaries. See, for example, the bill introduced in 1839: NSARM, RG 5, Series U, vol. 14, no. 147.

142. ‘Report of Assembly Proceedings,’Novascotian, March 1, 1838. See also the similar comments of Alexander McKim of Cumberland in the issue of March 22, 1838.

143. ‘Report of Assembly Proceedings,’ Novascotian, February 11, 1841.

144. In 1836, a total abolition bill was presented but lost 18 to 15 on a motion to defer it by 3 months. In 1838, with the Assembly debating a bill that would reduce the number of judges in both courts, a motion was made to refer that bill back to committee and instead to debate an abolition proposal (albeit with Cape Breton exempted); this motion was defeated 25 to 17. In 1839 the House voted 26 to 21 for a reduction bill over an abolition (again exempting Cape Breton) bill. For these votes see Assembly Journals, February 25, 1836; March 3 and 5, 1838; and February 28, 1839. For the bills see NSARM, RG 5, Series U, vol. 14, nos. 17 and 147. The judiciary was discussed briefly in 1837, but extensive consideration of the issue was constantly deferred because the Assembly was absorbed with Howe's Twelve Resolutions and the general reform of colonial governance. We have not analyzed the votes of 1840 and 1841 because on each occasion a very large majority voted in favor, evidence of the consensus that had by then emerged. See Assembly Journals, January 15, 1840, and February 23, 1841.

145. We use the word “counties” even though some areas were only judicial and electoral districts of counties; the districts all became counties, sometimes in this period, sometimes later. The figures on court use employed here to group the colony's counties and districts are from Assembly investigations in the 1830s, reported in Assembly Journals, 1838, Appendix 12, and 1841, Appendix 22. The NSSC counties or districts were Annapolis, Hants, King's, Colchester, Pictou, and Yarmouth. ICCP counties/districts were those on Cape Breton Island, Guysborough, Sydney, Queens, Lunenburg, and Digby. Although it is not germane to our analysis here, note that there was a close correlation between distance and court use, and a very close one when to distance is added the difficulties of travel for the NSSC circuit. Lunenburg, for example, reasonably close to Halifax, was an ICCP county because the roads were unfit for any conveyance other than horseback. For a more detailed discussion of the links between distance, accessibility, and court use see Phillips and Girard, “Courts, Communities, and Communication.”

146. The part of Halifax County that included the city and its environs did not have an ICCP, no figures were returned for Shelburne, and Cumberland County fluctuated in its preferences, perhaps because of a local dispute about which community the NSSC should hold its circuit sessions in. For this dispute see Phillips and Girard, “Courts, Communities and Communication.”

147. NSARM, RG 5, Series U, vol. 14, no. 13, and vol. 15, no. 1. Similarly to the abolition bills of 1838 and 1839 Cape Breton got an exemption. Morton's bill provided that if the Cape Breton chief justice was the first vacancy, one of the other three from the mainland would be moved to the Cape Breton post, and the mainland would henceforth be divided into two, not three, divisions.

148. For the progress of his bills see Assembly Journals, January 31, February 10, March 5, and March 6, 1838; and January 15 and February 6, 13, and 28, 1839.

149. Assembly Journals, February 28, 1839.

150. Assembly Journals, March 3, 1838. On that occasion, ICCP members again voted 71 percent for reduction, whereas NSSC members only voted 42 percent.

151. For more on this, see Phillips and Girard, “Courts, Communities and Communication.”

152. See on both these points a petition of John George Marshall, who was the only Cape Breton chief justice in the 18 years the system was in operation. He stated that as the ICCP had concurrent jurisdiction with the NSSC “nearly all the Civil Actions were brought and prosecuted in that Court” on the island, and in one 7-year period there was only one civil suit brought in the NSSC on circuit. He also referred to “several Special Commissions, which were directed to him for the trial of persons charged with capital Offences”: Marshall to Lord Stanley, January 3, 1842, NSARM, John G. Marshall Papers, MG 1, vol. 1282, no. 10.

153. We have not been able to categorize all members by party, because some were not clearly affiliated with one or the other. But this is only a problem for the 1836 vote, in which we have only been able to account for 61 percent of members. In the Assembly, which sat from 1837 to 1840, following the first provincial election clearly fought on party lines, approximately 95 percent of members can be categorized. Our principal source for this exercise is Elliott, Shirley, A Directory of the Members of the Legislative Assembly of Nova Scotia, 1758–1983, rev. ed. (Halifax: Province of Nova Scotia, 1984)Google Scholar.

154. This trend continued into the 1840s. In both 1840 and 1841, when large majorities in both parties approved abolition, fewer Tories backed the change (75 percent compared to 91 percent of reformers).

155. For this point, see the two 1838 votes on reduction versus abolition. Only four of the twenty-six who opposed abolishing the ICCP also voted against reducing judges in both courts. It should be conceded that we need to do more work on party distinctions, because the overall figures from the three votes conceal substantial change from year to year. In 1836 and 1839 combined, reformers voted for abolition 21 to 15, whereas they voted against it 16 to 8 in 1838. The corresponding figures for conservatives are the opposite—21 to 9 against in 1836 and 1839 combined, an equal division in 1838.

156. Polden, Patrick, A History of the County Court, 1846–1971 (Cambridge: Cambridge University Press, 1999), 137CrossRefGoogle Scholar; Arthurs, H.W., “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England. (Toronto: University of Toronto Press, 1985), esp. 1349Google Scholar.