The Supreme Court of Nova Scotia, 1754-2004: From Imperial Bastion to Provincial Oracle (review)

As an academic discipline, legal history in English Canada is less than thirty years old. Its characteristic literature has been the essay compilation rather than free-standing monographs. These compilations, published mostly by the Osgoode Society, began in the 1980s as wholly miscellaneous in content but in time became focused on some particular geography or theme. While such collections have a use, they are too diffuse to be really satisfactory, and one had come to wonder whether the genre had not run its course. It is with pleasure, then, that one notes the appearance of this Cahill/Phillips/Girard compilation on the history of the Nova Scotia Supreme Court. By combining quite narrow thematic and geographical coverage, it is able to present an admirable contribution to Canadian legal historical literature.

The occasion for the collection was the 250th anniversary of the opening, in 1754, of the first common law court in what is now Canada. Thirteen essays outline aspects of the history of that court and its successors from earliest times to the present. Despite its commemorative genesis, this is not pious history. Neither the eighteenth-century impeachment proceedings nor their recent analogue in the inquiry into the wrongful conviction of Donald Marshall is slighted. It is no part of the editors' contention that, in jurisprudential terms, the Nova Scotia court has been one of particular significance. Yet this collection illustrates how focused treatment of a court of no special importance can generate an historiography of considerable importance.

Essays by Douglas Hay and Elizabeth Manke set the establishment of the Supreme Court in imperial context. Manke is one of those now rare historians who can read eighteenth-century imperial concerns in intercolonial perspective. Her chapter explains how the decision to restructure Nova Scotia's court system in 1754 so as to create a relatively autonomous Supreme Court departed from the traditional American arrangements, anticipated developments in the remaining colonies after the Revolution, and created a new pole of influence within local political culture. Although the volume's thrust is institutional, several contributions treat the work of the court from a social or intellectual perspective. Julian Gwyn offers an analysis of all cases between 1754 and 1830 in which women appeared either as plaintiff or defendant; 40 per cent of these female litigants were widows. While his prodigious research yields modest conclusions, it lays a solid basis for comparison when comparable studies of women in other jurisdictions are generated. Years of patient sifting are also reflected in Bernard Hibbitts's essay on the nineteenth-century Supreme Court's citation of US authority. As one would have expected from the comparable work of Blaine Baker on Upper Canada, Hibbitts concludes that the Nova Scotia court was rather more willing to cite American legal authorities before 1875 than in the late-Victorian period, when Canadian high culture 'anglicized.' William Lahey offers a quite subtle account of the Supreme Court's adjustment to Confederation as viewed through its constitutional jurisprudence. James Muir and Blake Brown focus on the jurisprudence of nineteenth-century industrial injuries and mid-twentieth-century administrative review respectively. Brian Cuthbertson offers a polished research note on the homes of the Supreme Court, and Susan Jones and Blake Brown present an extended biographical report on the twentieth-century judges as a collectivity.

The stand-out contributions in the volume are those of the editors themselves, who offer institutional overviews of Supreme Court history running to nearly 150 pages. Cahill and Phillips together survey the period down to Confederation. For these years there has been quite an extensive historiography already, so that what the authors offer is really a detailed, authoritative restatement. Girard's task in covering the period from Confederation to the twenty-first century was formidable in a different way, for here there was little secondary literature to rely on. The result, built on sampling...