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Book Review
| Philip Girard, Jim Phillips, and Barry Cahill, editors, The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle, Toronto: Osgoode Society for Canadian Legal History by University of Toronto Press, 2004. Pp. 515. $75.00 (ISBN 0-8020-8021-9).
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| This book is a remarkable tribute to the 250th anniversary of the founding of the Supreme Court of Nova Scotia. It is a collection of essays that succeeds well at that most challenging of tasks, drawing diverse scholarship together thematically into a digestible whole. This achievement is all the more remarkable in a book over five hundred pages long. |
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This collection describes the development of the court as an institution, attending not merely to its judges (many of whom are, however, discussed in the various essays) but to the way the court functioned, its civil and criminal workload, the other court officials who have made it run over the years, and other aspects of the court's institutional existence. The court's jurisprudence is analyzed to a lesser extent in essays on particular topics (James Muir and Jim Phillips on the court's first session in 1754, Julian Gwyn on female litigants before 1830, Bernard Hibbits on American authority in the Victorian era in the court, James Muir on the law of injuries in the nineteenth century, William Lahey on constitutional jurisprudence in the late nineteenth century, and Blake Brown on the court's relationship to the Labour Relations Board in the mid-twentieth century). It may seem ironic that the twentieth century, for which presumably the best records exist, gets the least attention, but it is always the case in Canadian legal history that much work remains to be done. One may hope that the appendix by Jim Phillips and John Macleod on the archival holdings of the court will encourage others to carry the project forward. |
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The collection is unified by six essays, two of which are overviews of the pre-confederation and post-confederation periods (by Barry Cahill and Jim Phillips and by Philip Girard, respectively). Additional thematic unity is provided by the introduction, by essays by Douglas Hay and Elizabeth Mancke on the imperial court system and Nova Scotia's relation to it in its early days, and by a collective biography of the judges of the twentieth century by Blake Brown and Susan Jones. Brian Cuthbertson's description of the facilities that have housed the court provides additional context for the institutional history. |
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A number of important thematic links run through the essays, and it would be impossible to do justice to them all. They include the relationship of women and minorities to the court, the court's institutional behavior and self-image, judicial training and professionalism, changing sources of legal and cultural authority, and Halifax's peculiar geographical and political position, being both central, to Nova Scotia, and peripheral, as colony and then as province. One particularly engaging theme is the relationship between judging and politics, or, more accurately, judging and its accountability to particular audiences, which emerges in many, if not most of the essays and most explicitly in the two overviews. The essays collectively illuminate both how the judges understood their roles in the colonial and then federal schema, and, to a lesser extent, how different social forces pushed them to alter their views. The judicial bastions of imperial order of the late eighteenth century responded quite differently to the demands of American Loyalists than did (ultimately) the late twentieth-century court to the debacle of the wrongful murder conviction of Donald Marshall, a member of the Mi'kmaq First Nation. Elements in the transition include the reforms of the 1830s and 1840s, the process of confederation, the emergence of an independent judiciary and bar, and the rise of formalism in the late nineteenth century. One may hope that twentieth-century shifts in jurisprudential approaches and perceptions of social justice, touched on to some degree by Brown and Girard, will eventually get the full attention they too deserve. |
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The least satisfactory aspect of reviewing a book like this is being entirely unable to do justice to the impressive depth of the research, to the details unearthed by these scholars on the challenges to the court's everyday functioning, to its crises, to the complex interplay of personal, educational, social and jurisprudential influences on the judges, to the jurisprudence they developed in the multiplicity of cases they dealt with over 250 years. Let it be said, therefore, that this book will reward both those interested in particular aspects of Nova Scotia history and those who are interested in more broad, thematic questions about courts and their development in the colonial and post-colonial context, particularly in the place that has become Canada, with all its diverse influences and homegrown propensities. |
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| Lyndsay M. Campbell
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| University of California, Berkeley |
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