The Maritime Provinces, 1850-1939: Lawyers and Legal Institutions

The achievement of Responsible government in the Maritimes created possibilities for significant change in their legal cultures. Whether those possibilities were actualised is a matter of some debate, closely linked to a major theme in Maritime historiography: the meaning of responsible government. An older literature, echoing much contemporary opinion, celebrated the triumph of the reformers as an unqualified good. Careers would open to talents, government would be rendered more accountable, and the humble yeoman would be able to participate actively in a more democratic form of government. In recent decades historians have taken a more jaundiced view of the achievements of responsible government. They have stressed continuity rather than change, suggesting that older elites retained most of their economic and political power. At worst, all that the transition to responsible government involved was replacement of a system based on imperial patronage to one based on partisan allegiance. (or the older view, see G. Patterson, Studies in Nova Scotian History (Halifax: Imperial Publishing, 1940) at 34-46. More recently, see J.M. Beck, The Politics of Nova Scotia, vol. I (Tantallon, N.S.: Four East, 1985) at 266-72.)

“The first stirrings of political reform had seen some significant steps towards an overhaul of statute law. Significant reform of the criminal law, for example, occurred in New Brunswick in 1831, Prince Edward Island in 1836 and Nova Scotia in 1841. Benefit of clergy was abolished, the number of capital offences reduced, criminal procedure rationalised, and in Nova Scotia whipping and the pillory abolished. 3 In 1842 these reforms were capped by the opening of New Brunswick’s first provincial penitentiary in Saint John, followed two years later by one in Halifax.’ Lord Falkland’s coalition ministry in Nova Scotia (1841) also saw a package of reforms in the civil law and court structure, which included abolition of the Inferior Court of Common Pleas and modernisation of the divorce and probate courts. (An Act to improve the Administration of the Law, and to reduce the number of Courts of Justice , S.N.S. 1841, chapter 3. An Act relating to the Courts of Probate, S.N.S. 1842, chapter 22. An Act concerning the Court of Marriage and Divorce, S.N.S. 1841, c. 13. New Brunswick had altered its divorce court in 1834, although it did not formally exclude the lieutenant-governor from the court, as did Nova Scotia: S.N.B. 1834, c. 30.)

These developments reached their logical culmination in the Revised Statutes of Nova Scotia 1851, modelled closely on the Massachusetts revision of 1828, the first such revision promulgated within the British tradition. New Brunswick followed quickly, producing its first “consolidation” in 1854; Prince Edward Island’s came in 1862. Stylishly produced and thematically organised, these revisions represented the best of the legal culture of the pre-responsible government era, but packaged in a way which respected the new ideals of brevity, accessibility and efficiency. The New Brunswick commissioners declared proudly that they had “compressed the language of the Acts [into] one fourth, or often one sixth, the bulk of their former size.”‘ The revised statutes amended as well as conserved the law, limiting the maximum period of imprisonment for debt to one year in Nova Scotia, adding the first interpretation act to the New Brunswick statute book, and abolishing entails in both provinces”

“In both New Brunswick and Nova Scotia, one of the first targets of the new governments was the courts of chancery, which could be portrayed as embodying the worst flaws of earlier times: privilege, inaccessibility (the court never ventured outside the capital), delay, expense and obscurity. Empirical evidence suggests that these criticisms may not all have been valid, but few rose to defend the court. New Brunswick abolished theirs in 1854, transferring its jurisdiction, along with its incumbent judge to its Supreme Court, Equity side. Nova Scotia’s abolition in the following year saw a thorough attempt to reconcile common law and equity procedure, following models from jurisdictions as far afield as Ohio and New York. (An Act relating to the Administration of Justice in Equity, S N.B. 1854, c. 18; An Act for abolishing the Court of Chancery, and conferring Equity Jurisdiction on the Supreme Court, S.N.S. 1855, c.23.)”

The Jacksonian call from the U.S. for an elected judiciary made no headway within the hallowed halls of Maritime supreme courts, but some cities did flirt with elective municipal courts during this period, based in part on British models of borough governance. Halifax (1841) and Charlottetown (1855) abandoned the appointed grand jury in favour of an elected aldermanic model of governance. Saint John’s charter (1785) still provided for sharing of governance between an elected Common Council and an appointed grand jury. The “mayor’s courts” in these cities exercised both civil and criminal jurisdiction in a wide range of matters, with the mayor presiding and aldermen assisting on a rota basis. These courts and their successors appear sometimes as responsive “people’s courts” in the literature, and at other times as instruments of social control employed by a middle class fearful of the “deviant, disruptive force” represented by the vagrant. All agreed that public order and substantial justice were their primary concerns, rather than the niceties of legal principle or pleading. Blacks were over-represented as defendants in these courts and highly visible in newspaper accounts of their proceedings. Native people were very much underrepresented in both urban and rural courts during this period, and magistrates seemed to have treated them leniently provided they returned to their own communities.

“The institutions of government did not change immediately after the adoption of responsible government, but the franchise attracted much attention. A movement to make the Legislative Council elective—fomented by the Conservatives in a sudden shift to populism while on the opposition benches—petered out except in Prince Edward Island, where it succeeded in 1862. The legislatures became formally more representative with the extension of the franchise in Nova Scotia (1854), New Brunswick (1855), and Prince Edward Island (1853). Zeal for universal male suffrage was tempered by respect for property, however, and an assessment qualification remained in the two larger provinces until well after Confederation; Prince Edward Island adopted a universal male franchise in fact, if not in theory, by giving the vote to all men liable to perform statute labour, including those who would have been liable but for an exemption based on office or occupation. Blacks meeting these qualifications were not formally excluded from the franchise; and they seemed to have exercised it, if the extent of campaigning in Nova Scotia Black communities is any indication. Women were formally excluded from the franchise as part of the agitation leading to responsible government, confirming that the dominant tendency of the period was “to render state privileges more accessible to the average (white male) citizen.”

“A certain openness was also apparent in the presence of women in the early law classes in Saint John and the admission of Black lawyers to the bars of New Brunswick (1882) and Nova Scotia (1900) respectively. Abraham Walker of Saint John had obtained an LL.B. from the National University in Washington, D.C. and became the first Afro-Canadian lawyer, a distinction hitherto wrongly conferred on Delos Davis of Ontario.

(Women were not admitted to Dalhousie Law School until 1915, and the first woman called to the bar in Nova Scotia was Frances Fish in 1918: L.K. Kernaghan, “The Madonna of the Legal Pro fession” (1991) 16 Hearsay 26. In Prince Edward Island, enabling legislation was passed in 1918, which led to the first woman lawyer in that province a few years later. K. Fisher, “Roma Stewart Blackburn, P.E.I.’s First Woman Lawyer” (1995) ALHW II paper. The second did not follow until 1975.On Walker, see J.B. Cahill, “Walker, Abraham Beverley”, vol. VIII, Dictionary of Canadian Bi ography (Toronto: University of Toronto Press, 1994). Walker was conspicuously excluded from a dinner for the Saint John bar in 1885, which led to a controversy over the “colour bar.”)

James Robinson Johnston of Halifax had obtained a Bachelor of Letters degree from Dalhousie before graduating LL.B. in 1898; he met with a success which eluded Walker, serving the Black community and specialising in criminal and military law. (Barry Cahill, “The `Colored Barrister’: The Short Life and Tragic Death of James Robinson Johnston, 1876-1915” (1992) 15 Dalhousie Law Journal 6.)

Pierre-Amand Landry became the first Acadian lawyer (1870), the first Acadian named to a county court judgeship (1890) as well as the first Acadian and the first Roman Catholic to be named to the New Brunswick Supreme Court (1893). (D.M. Stanley, A Man for Two Peoples: Pierre-Amand Landry (Fredericton: Law Society of New Brunswick, 1988).)”

Philip Girard, “The Maritime Provinces, 1850-1939: Lawyers and Legal Institutions, 1995” 23 Manitoba Law Journal 379, 1995 CanLIIDocs 142, <https://canlii.ca/t/sgd4>, retrieved on 2021-06-06