A Trying Question

A Trying Question: The Jury in Nineteenth-Century Canada

R. BLAKE BROWN
Copyright Date: 2009
Pages: 416
https://www.jstor.org/stable/10.3138/9781442685345
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  • Book Info
    A Trying Question
    Book Description:

    A Trying Questiontraces the history of the jury in Canada and links its nineteenth-century decline to the rise of the professional class.

    eISBN: 978-1-4426-8534-5
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. vii-viii)
    R. Roy McMurtry and Jim Phillips

    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...

  4. Acknowledgments
    (pp. ix-x)
  5. Abbreviations
    (pp. xi-xi)
  6. Maps
    (pp. xii-2)
  7. Introduction
    (pp. 3-14)

    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 asLaw 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...

  8. Part One: Juror Apathy and Allegations of Jury Packing, 1820s–1848
    • [PART ONE Introduction]
      (pp. 15-16)

      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 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...

    • 1 Storms, Roads, and Harvest Time: The Jury System and Attitudes towards Jury Service in Nova Scotia
      (pp. 17-42)

      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...

    • 2 The Jury System and Attitudes towards Jury Service in Upper Canada
      (pp. 43-56)

      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...

    • 3 ‘The Bean Box’: Reformers and the Politicization of the Jury System in Nova Scotia
      (pp. 57-79)

      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...

    • 4 Reformers, Rebellion, and the Jury System of Upper Canada
      (pp. 80-98)

      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...

  9. Part Two: Responsible Government and the Jury, 1848–1867
    • 5 Responsible Government, the Magistrates’ Affair, and the Breakdown of the Nova Scotia Jury System
      (pp. 101-132)

      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...

    • 6 Responsible Government and the 1850 Upper Canada Jury Act
      (pp. 133-172)

      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...

  10. 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
      (pp. 175-191)

      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...

    • 8 ‘The Day Has Gone By for the Worship of Legal Idols’: The Decline of the Jury in Ontario
      (pp. 192-215)

      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...

  11. Conclusion
    (pp. 216-224)

    Doug Small, a freelance journalist, introduced his 1999 article discussing the value of the jury system in Canada in theNational, 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...

  12. Notes
    (pp. 225-322)
  13. Index
    (pp. 323-336)
  14. Back Matter
    (pp. 337-340)