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.

We argue that far from being niche issues of legal administration, the often heated debates that accompanied judicial and court reform provide an important insight into the broader clash of ideas and interests occurring in the colony. Beginning almost two decades before the achievement of responsible government in 1848, they shaped and were shaped by conflicting visions of state formation and constitutional governance, the surging power of reform ideology and public opinion, and the uncertainty of a colony desperate to develop its economy. We also argue that this was not one-way traffic; in turn these legal system issues, especially judicial fees, propelled the reform movement forward, giving it a number of causes celèbres that served to illustrate the evils of the ancien régime. Neither Nova Scotia nor any other British North American colony exhibited Jacksonian demands for judicial reform; there were no impeachments, burnings in effigy, or suggestions that judges should be popularly elected.Footnote ¹ But there was plenty of invective, and reformers in this outpost of British North America did, similarly to their United States counterparts, see the NSSC judges as an unwelcome vestige of aristocracy, their attitudes a relic of colonialism, and their interests at times diametrically opposed to those of the majority of the population. That Nova Scotia did not go as far as many American states can probably be attributed to the absence of a revolutionary legal and constitutional culture. The revolution in authority to the south, whose reverberations swept through judicial systems in many states, had no such counterpart in a colony that had opted to retain its links to the empire in the 1770s. However, we would argue, legal reform evinced a more radical outlook than historians have so far appreciated.

Legal reform therefore cannot be understood without some appreciation of the political and economic situation in the colony in the 1830s, the decade in which reformers took aim at what the radical editor of Pictou's Colonial Patriot, Jotham Blanchard, denounced as the “system of grandeeism and grasping,” which he said typified the colony's government.Footnote ² In the early 1830s reformers in the Assembly attacked the governing elite, principally the lieutenant governor's Council and its Assembly supporters,Footnote ³ over a variety of issues, including banking reform, taxation, educational policy, and the collection of quit rents to pay the costs of government, with the result that relations between the elected and appointed branches of the local government, and between the Assembly and the imperial government, grew increasingly confrontational. In 1835, newspaper editor and future reform leader Joseph Howe publicly accused Halifax's governing grand jurors of corruption, and the resulting libel trial, in which he defended himself and was acquitted, mobilized support for reform across the colony. Something of a watershed was reached with the 1836 Assembly election, the first to be fought on clear party lines, and in which voters returned a reform majority.

It was in this atmosphere of growing discord that various aspects of court reform were debated. An examination of them highlights the extent to which broader ideas of democratic development infused the politics of legal reform. On the subject of judicial fees, for example, reform advocates argued that the judges' custom violated the principle of taxation without representation. On the question of salaries, the Assembly rejected as early as 1830 the idea of judges as a class apart from ordinary Nova Scotians, a notion forwarded by those still promoting the concept of a mixed monarchy constitution.Footnote ⁴ And on reform of the inferior courts, abolitionists and defenders alike grounded their arguments in popular opinion, suggesting an awareness that institutional legitimacy now resided with the colonial public. It would go too far to say that court reform debates simply reflected Jacksonian democratic ideas about the place of the judiciary. On some issues, especially that of the continuing role of the chief justice on the governor's Council, Nova Scotian developments were influenced by broader imperial currents of reform. But on other questions, particularly that of judicial fees, the courts' critics in the province did display something of the Jacksonian ethos for change. They clearly wanted to democratize the system to some extent, to make justice more accessible, and to see judges as citizens elevated to the bench, not a caste apart from the ordinary person. They argued, for example, that the legislature alone, and not custom inherited from Britain, should control the way judges were paid.

Party politics and the rise of “democracy” do not solely explain the direction of legal reform, especially in this period before the full development of party discipline. Lawyers in the Assembly found their views often discounted because of anti-legal sentiment and allegations that self-interest shaped their decisions. The perception of lawyers as an insular, self-aggrandizing elite was widespread in the maritime colonies of British North America, as it was in the United States throughout the Jacksonian period.Footnote ⁵ On some issues, especially debates over the abolition of the inferior courts, local considerations were prevalent, with members routinely crossing party lines to retain court services for their counties. And the debates over judicial and court reform also reveal that political ideology, independent of party affiliations, could be influential. Others have argued that historians of nineteenth-century Maritime politics traditionally underestimated the role of political ideology and were too ready to rely on expediency, patronage, and self-interest as explanations of political developments;Footnote ⁶ we also demonstrate here that ideas mattered. On the question of judges involving themselves in politics, for example, the Tory Beamish Murdoch, the colony's leading legal author and an opponent of responsible government, made sophisticated arguments for the separation of powers, rooted in the “Country” school of political thought. Broader intellectual currents, which coalesced into what has been called the “intellectual awakening” of the colony, also affected court reform debates just as they influenced religious controversies, the historical writing of Thomas Chandler Haliburton, and the legal scholarship of Murdoch.Footnote ⁷

Also key to the direction of legal reform was the economic climate, because the cost of the judicial system was a constant concern of its critics. The colonial economy endured severe fluctuations throughout the decade, and some regions even faced famine when harvests failed in the early 1830s.Footnote ⁸ In this tumultuous economic context, rhetoric about the extravagance of judicial remuneration and the wastefulness of superfluous courts was especially resonant. For its critics the court system was not simply unnecessarily expensive, it drew limited resources away from infrastructure projects crucial to colonial development. Petitions poured into the legislature asking for money for roads and bridges, and despite a debt of over £62,000 in the 1830s, the Assembly still allocated large sums of money: £14,000 in the 1839 session alone to road building. Even with the money allocated, travel throughout the province remained fairly difficult in many areas through the first half of the nineteenth century, especially in the fall and spring.Footnote ⁹ As a result, complaints about the cost of the judicial establishment should be seen both as protests against the high costs of an official class widely disliked on a political basis, and as arguments about where the colony should invest its limited revenues.

This article proceeds by examining the various issues involving the provincial court system and its judges in a broadly, although not entirely, chronological order. We begin with the period from c. 1830 to 1834, in which the principal topic of discussion was judicial salaries. The next two sections examine the closely related issues of judicial fees and the chief justice's place on the Council, in the years between 1834 and 1838. The final section is centered on the later 1830s and early 1840s, in which the principal question was whether the lower civil courts should be retained. Before we begin discussion of these issues, however, we need to establish the principal features of the legal system that attracted so much controversy.

In 1830 the principal court in the colony, the NSSC, had five judges: the chief justice, three assistant (puisne) judges, and, from 1816, an associate circuit judge whose jurisdiction was limited to the circuit.Footnote ¹⁰ The judges were members of the colonial elite even apart from their positions on the bench. Chief Justice Sampson Salter Blowers, for example, was a Harvard-educated and very successful Massachusetts lawyer and former solicitor-general of New York who had joined the loyalist migration in 1783. He was made attorney general the following year and a member of the Council in 1788. He had been chief justice since 1797 and served until he retired in 1833 at the age of 90. The senior assistant judge, Brenton Halliburton, who succeeded Blowers in 1833, was a high Tory, a councillor, the son-in-law of Anglican bishop Charles Inglis and the nephew of former NSSC Judge James Brenton. The court sat at Halifax for four terms a year, and in the late spring, summer, and early fall it went out on circuit; by 1830 it was holding seventeen weekly sessions a year at twelve different circuit locations.Footnote ¹¹

The NSSC judges drew their remuneration from two different sources. The chief justice received £850 sterling, paid by the London government, which had initially created the position. The others were paid by the Assembly: £600 local currency for the assistants, which was worth only 90% of sterling, reduced to 80% in the early 1830s, and £400 local currency for the associate circuit judge. The judges also received fees directly from litigants including: 10 s. on the entry of every action above £10, 5 s. for those under £10, 6 s. 8 d. for every trial. A contemporary estimate put the total fee received on suits above £10 at between 17 s. 6 p. and £1 17 s. 6 p.Footnote ¹² Formally, only the chief justice was entitled to these fees, but there was a long-standing practice of his relinquishing the circuit fees to the judges who actually heard the cases. The amount of fees collected fluctuated with litigation levels, but they were a substantial salary supplement. The chief justice got approximately £500 local currency annually in the 1820s and 1830s, the assistants probably averaged c. £75 each before 1834 and over £100 thereafter, the difference the result of moving from two-judge to one-judge circuits.

The NSSC was but one part of the colonial judicial establishment. It was joined by various specialized courts such as Vice-Admiralty and Chancery. But the principal other courts were the county-based lower courts, the Inferior Courts of Common Pleas (ICCP, civil) and the Sessions of the Peace (criminal). The former had a jurisdiction more or less concurrent with the NSSC, whereas the latter was very much an inferior court, dealing only with less serious offences. For the most part these courts were staffed by unpaid justices of the peace, but from the early 1820s they were presided over by four professionally trained and salaried judges, styled “Divisional Chief Justices” of the ICCP and “Presidents” of the Sessions. The inferior courts had been organized into four divisions, with the chief justices travelling to the various counties in their divisions. The first such chief justice was established for Cape Breton Island in 1823, shortly after it had been annexed to Nova Scotia, and the measure was largely uncontroversial. A year later, however, a proposal spearheaded by leading members of the bar to divide the mainland into three divisions and establish £400 a year chief justiceships for each sparked a rancorous debate in the Assembly, passing on an 18 to 17 vote following assertions that it was little more than a ploy to provide well-paying jobs for senior members of the legal profession.Footnote ¹³ In fact, the three posts were then awarded to lawyer-assemblymen, after much lobbying and scrambling among the contenders,Footnote ¹⁴ and for many the whole arrangement came thereafter to stand as an exemplar of how local tax revenues were used for the aggrandizement of an elite profession. From 1826, the Assembly also had to foot the bill for a master of the rolls, who presided in Chancery; the post went to Speaker of the Assembly Simon Bradstreet Robie.Footnote ¹⁵ By 1830, the total amount paid by the House for judicial salaries and travelling expenses was over £5,000, out of a total provincial revenue of only £60,000.Footnote ¹⁶

Judicial Salaries, 1830–1834

The issue of judicial salaries generated an intense debate because it exposed fundamental disagreements about the role and status of the judiciary between the majority of assemblymen and the judges' supporters in the Assembly and in the executive. In turn, those disagreements were symptomatic of the emerging critique of the ancien régime, a critique that focused on the argument that colonial government was operated for the benefit of a small entrenched elite and paid insufficient attention to the needs and aspirations of the majority of colonists. Half a decade before Howe's libel trial galvanized opposition to the old order, the issue of the salaries of the legal elite revealed in some, and created in others, an incipient spirit of democratic political and legal reform.

There were two formal attempts to increase NSSC puisne judges' salaries in this period. In 1830, Michael Wallace, provincial treasurer and administrator of the government during Lieutenant Governor Maitland's absence, presented the Assembly with a petition from the judges for an increase of £200 a year.Footnote ¹⁷ The request was resoundingly rejected, and a further attempt in 1833, this time initiated from London, to get the Assembly to agree to a salary increase was rebuffed without even a vote. The 1830 petition, with which this section of the article will principally deal, was the culmination of some years' private discussion among the judges and their supporters in Council about salaries, discussions that revealed that the judges had little faith that the Assembly would grant the request.Footnote ¹⁸ They were right regarding that point, but probably did not anticipate the adamant and heated negative reaction, which resulted from a rejection of the idea that judges needed more money to maintain their independence and their status as part of the colonial governing elite.

The few voices raised in favor of the petition made two principal arguments.Footnote ¹⁹ First, supporters of the judges compared Nova Scotian judicial salaries unfavorably with those of other colonies. “[T]here was no other Colony where public officers were so badly paid as they were in Nova Scotia,” asserted Cape Breton County representative Richard Uniacke Junior, who very shortly afterwards became an NSSC judge.Footnote ²⁰ In this he was generally correct, but, as we shall see, the comparison was considered irrelevant by many.Footnote ²¹ The second, and most vigorously asserted, argument for an increase was that the judges required salaries that would provide them with an exalted place in colonial society. Both Murdoch and Uniacke explicitly linked salary levels to what they termed the “independence” of the judges, by which they meant not just the need to ensure that judges were free from the temptation to abuse their office, but, more importantly, a requirement that they live in a style that set them apart from their fellow citizens. As Murdoch stated, the judges' salaries were not only “inadequate to the duties they have to perform” but also for the “establishment which, for the due performance of that duty and the maintenance of their ranks in society, it was necessary to keep up.” He could, he continued, “state from his own personal knowledge of the style of living in the circle which the Judges moved, that the present salaries were inadequate.” To similar effect Uniacke contrasted local judges with their British counterparts: “It was well known that when a British Judge went on the circuit, he travelled in a style which at once stamped his character; and we ought to enable our Judges to support their dignity in a similar manner.” Uniacke insisted that a judge on circuit “ought to be able … to travel in his own carriage. Surely gentlemen would not like to see a Judge crammed into a common stage coach.”Footnote ²²

Uniacke's argument was an assertion of the desirability of a form of gentry class in the colony. He clearly believed that the judges should reflect the “majesty” of the law, that judicial authority was more effective when accompanied with the trappings not only of office but also of wealth.Footnote ²³ He and others argued that judges needed to be a breed apart, to play the role of a local aristocracy, albeit one of professional attainment rather than birth. The idea that judges should be far removed from ordinary citizens, a notion underpinned by the conviction that the law applied by the judges rested not on popular sovereignty but in royal authority, was supported by a letter writer to the Novascotian, Selden, after the debate. Arguing first that, “the British Courts of Justice had a more direct and beneficial influence on the morality of the people than the whole Bench of British Bishops,” he went on to assert that such influence could only be sustained by a judge who was “one of the first and most dignified in the land.” He “should be able to mingle in the best society, and to move in the highest sphere of action, for his influence and elevation is not personal only; it sheds around upon the community a healthy and vivifying influence.” Much more followed in the same vein; the judges needed to be able to live at a much higher standard if they were to be truly independent.

The debate inevitably involved comparisons with the United States as well as with Britain and its other colonies. Some members compared Nova Scotia with the United States, where judicial salaries, it was correctly alleged, were considerably lower.Footnote ²⁴ However, Murdoch and others vehemently rejected the comparison. He derisively asserted that “£20,000 was the cost of the Judiciary Establishment of the whole republic,” and insisted that the “parsimonious system adopted in the United States” was “radically bad.” Members should not have their opinions “warped towards the practice of our republican neighbours.” By implication, judges in a monarchical system of government needed to be a distinct class from ordinary citizens.Footnote ²⁵ Alexander Stewart argued similarly and more explicitly that “it ought never to be lost sight of that we form part of a monarchy, and that the salaries of our public officials ought to be greater than in a republic.”Footnote ²⁶

These ideas reflected a still significant strain in early nineteenth-century British constitutional thought. However, only a small minority of assemblymen believed in them enough to support the judges' petition. A motion to refer the salary memorial to the committee of supply was defeated 31 to 5, and one to refer it to a select committee was defeated 28 to 8.Footnote ²⁷ In the debate, most speakers had no patience with aristocratic pretensions. The comparison to other colonies was irrelevant; what mattered was comparison with others in Nova Scotia, not salary parity among colonial elites. William Lawson, a Halifax merchant and a stalwart of the reform cause, noted that there were “very few men in Nova Scotia who enjoyed an income of £600.” The rejection of a claim based on colonial aristocracy, and the willingness to employ American comparisons demonstrates, we would suggest, that Nova Scotians were beginning to fashion their own ideas about the nature of politics and were developing a distinct legal culture. British models were inapplicable to some extent, while at the same time there was no suggestion that salaries actually be lowered to bring them in line with American levels.

Local ideas were based on local conditions. For many assemblymen the really important comparison was with other inhabitants of Nova Scotia and other demands on the public purse, and there was considerable resentment of the salary request not only as an excessive claim in itself but also as an especially unreasonable one in the colony's straitened circumstances. Members, especially those from the out-settlements, insisted that the colony could not afford higher pay for judges when there was not enough for other expenditures. Typical was John Barry, a Shelburne merchant, who “would never consent to burthen the Revenue with additions to the Salaries of the Judges” when money was needed for roads and other internal improvements.Footnote ²⁸ Although none of the judges were criticized individually, and although laudatory things were said about their judicial performance,Footnote ²⁹ they were clearly seen as making selfish and unreasonable demands on the limited resources of an economically struggling colony. The principal speaker against the salary increase in 1830, John Young, the member for Sydney County and as “Agricola” best known for his promotion of agricultural development and innovation, made the point at great length. He noted that England had a population of 13 million compared to Nova Scotia's 123,000, and was served by twelve judges, only three more than the colony's nine. He also asserted that the judges' salaries accounted for one-twelfth of the revenues raised by the Assembly, and insisted that it was simply not right to have the judiciary consume such a large proportion of government spending. The judges should abide by local standards. In comparative terms, spending one-twelfth of Assembly-generated tax revenues was excessive, because no other British North American colony's judicial establishment was funded by the Assembly to this extent in the nineteenth century. In Nova Scotia, only the chief justice was paid for by the Crown, all the other judgeships had been created, and were paid for, by the Assembly. Elsewhere almost all superior court judges were creations of the imperial government and their salaries borne by it, for many years on the parliamentary grant and by the 1830s out of locally raised crown revenues.Footnote ³⁰ Judicial salaries elsewhere were to some extent therefore a “hidden” expense; in Nova Scotia they were a visible manifestation of money not available for spending on other priorities.

As for claims of the need for an aristocracy, assemblymen would have none of it. Speaker after speaker insisted that the judges were well enough paid already, both in absolute terms and in comparison to the vast majority of the colony's inhabitants. Joseph Oxley, a Cumberland County farmer, was another member who like Barry and Lawson thought the judges “very handsomely paid.”Footnote ³¹ Young, who cleverly resisted the argument that the judges needed more money to ensure full independence by praising their probity, also linked true independence to modest, prudent lifestyles, in tones reminiscent of the movement for republican virtue in the early American republic. Independence, he argued, “may be attained, not so much by multiplying the means of indulgence as by restraining the desires.” That is, “the wants of nature are easily supplied, but the cravings of rank and luxury are insatiable and know of no bounds. A man governed by reason and the rules of prudent economy is as effectually above all pecuniary difficulties, when in possession of £400 per year as of £800, and when in possession of £600 as of £1600.”Footnote ³² Rather than seeing a need for judges to be elevated into a form of colonial aristocracy, he urged them to set a “decorous example of the ancient simplicity of manners.” Therefore, whereas a small group wanted judges set high above the populace, most assemblymen preferred them closer to the people they judged.

This attitude to judicial salaries was widely shared, cutting across nascent “party” lines with the opposition to increases including many members otherwise generally inclined to support the executive's measures. The judges' supporters in the Assembly were almost all lawyers. Of the mere five members who voted to refer the petition to the committee of supply, four were lawyers: Murdoch, Stewart, Uniacke, and Thomas Dickson, a member for Sydney County who had studied under Attorney General Samuel George William Archibald. Voting against the judges on this occasion were four other lawyers: John Johnston from Annapolis, James Shannon Morse from Amherst, Charles Dickson Archibald, member for Truro Township and the son of S.G.W. Archibald, and John Forman of Shelburne County.Footnote ³³ On the second motion, to refer the petition to a select committee, a less strong endorsement than the first, three of the latter group also supported the judges, leaving Forman as the only lawyer to oppose the motion.Footnote ³⁴ Overall, therefore, only one non-lawyer voted in favor of even considering the idea of an increase.

Given that almost all the support for the judges came from members of the legal profession, and that almost all the lawyers supported the judges on the second vote, it is reasonable to think that the profession acted from self-interest and perhaps that opponents of the increase were motivated by a general anti-lawyer sentiment. There is evidence for both conclusions. Uniacke provides the most obvious example of individual self-interest; he was the son of his famous namesake who had served as attorney general from 1797 until his death in 1830, and he was appointed to the NSSC only weeks after the salary debate. Perhaps Barry had Uniacke in mind when he observed that “when the gentlemen of the Bar advocat[e] an increase of salary to the Judges,” he could not “bring himself to believe that their own prospects or expectations had not a certain influence.”Footnote ³⁵ But the charge against the legal profession was not as much individual self-interest as what Young rather vaguely called a collective wish for “the aggrandizement of their profession.” He meant that lawyers supported every measure that was likely to bring professional advancement to some and/or greater remuneration for all. He attributed the agitation for an increase to the “influence which is exercised by the Gentlemen of the Bar in the House of Assembly.” They were, he said, “a close and determined phalanx,” one “governed by an esprit de corps” and “always act[ing] in concert.” Barry used the occasion to bring up the old complaint about lawyers having used their “united influence” to force through the Assembly the 1824 act that created divisional chief justices, with three of those who had voted for the measure attaining the posts.Footnote ³⁶ This was not the only occasion when lawyers converted their status as assemblymen and their willingness to support government into lucrative appointments.Footnote ³⁷

To some extent, therefore, the judges suffered the backlash from attitudes to lawyers generally. The debates bore out Blowers' belief in a widespread perception that “[t]he profession of the law was the best paid in the community, and the least entitled to an augmentation of profit,” and that in particular “[t]he judges were wallowing in wealth.” Although Young's complaint that lawyers alone among all professions had an “asylum … well endowed by this legislature” to which they could “fly in the decline of life,”Footnote ³⁸ suggests that many assemblymen personally resented the profession, this is too simple an explanation of the voting. The debate was not simply about lawyers' and judges' remuneration, but also took in the fact that the judges were seen as making too heavy a demand on the public purse, and as taking scarce tax revenues that could be spread more evenly in society. The group of members willing to consistently oppose the government in the Assembly was still small in March 1830 when the salary increase was debated, but it was growing. The strength of the opposition to that increase, and the arguments deployed against it, suggests that it was both a reflection of wider concerns about colonial government and an issue that to some degree gave impetus to the reform critique.

Crucially, the salary debate took place at the same time that the Assembly was in conflict with the local executive over the collection of quit rents, ordered by London as part of its “search for economy” in colonial administration, which had begun in the late 1820s and which saw the home government seek to reduce and ultimately eliminate the parliamentary subsidy for the British North American colonies.Footnote ³⁹ Henceforth the costs of colonial government, including the substantial salaries of office holders, were to be borne by money raised locally. Quit rents were very unpopular with the Assembly, especially with the rural members, and in the spring 1830 session the Assembly passed a unanimous address to the crown rejecting them.Footnote ⁴⁰ Although the quit rents issue was not discussed in the Assembly until after the judges' salary request, it clearly influenced the majority of members. Young and Barry referred specifically to it, and other members who complained of taxation burdens on the ordinary citizen must have had it in mind as well. It also seems reasonable to conclude that in turn the salary request affected the quit rents debate. That some of the highest paid local officials could demand more money at a time when every small landowner in the colony was threatened with having to pay the rents, exposed and deepened the cleavage between those in power and the ordinary citizen, and was further evidence that the system was run for the benefit of those in power.

Judicial salaries were debated again in 1833, when the Colonial Office proposed increases. It most likely did so as a result of personal lobbying by the judges and others, and the only justification offered was that the current salaries were inadequate to attract the very best of the bar to the bench.Footnote ⁴¹ Although there were a few lawyers who earned more than the judges, most did not, and there was even less support for increases than in 1830; the proposal was not even put to a vote in the Assembly because nobody found the rationale in the least persuasive.Footnote ⁴² Even Alexander Stewart, who had supported the judges' petition in 1830, rejected the notion, asserting that “some of the ablest men at the Bar were ready and willing to accept the Puisne Judgeships whenever they were vacant.” A seat on the bench brought a good salary irrespective of what a lawyer had earned in practice and, of course, security. The issue of judicial salaries did not go away when the Assembly rejected London's proposal. But from 1834, it was always tied to more general discussions about the creation of a local civil list and, especially, to the related question of judicial fees.

Judicial Fees, 1834–1838

Judicial fees were central to the democratic reform campaign of the 1830s. For reformers, they symbolized what was most wrong with the ancien régime: the colonial elite enriched itself at the expense of the mass of the people while the chief justice used his entrenched political position on the Council to prevent change. Reformers argued that fees were unconstitutional and illegal because they had never received Assembly sanction; they were a form of taxation without representation. In response, the judges and their supporters defended the fees as a vested right derived from the chief justice's commission from the Crown and English legal custom.

The debate over fees was marked by considerable heat and rancor, in stark contrast to the way the issue played out in Britain, the United States, and elsewhere in British North America. Almost everywhere, fee reform was treated largely as a minor administrative change, exciting little controversy. In England the fees of the judges of Westminster Hall were abolished in two stages, in 1799 and 1825, when abolition was included in a package of reforms that eliminated saleable offices at the disposal of the chief justices, established judicial retiring allowances, and raised judicial salaries.Footnote ⁴³ The fees decision was largely uncontroversial, Home Secretary Sir Robert Peel articulating the consensus view in arguing that he “thought it better that the judges should have a fixed salary out of a fixed fund, than an uncertain salary out of uncertain and fluctuating fees.”Footnote ⁴⁴ In the United States fees were never part of the federal court system, and were banned by two state constitutions, but they played a role in most state superior courts and were criticized at various times and places.Footnote ⁴⁵ In New York, the one jurisdiction studied with any degree of thoroughness, Supreme Court judges lost their fees in return for higher salaries in the late eighteenth century, although when the judicial system was reformed in the 1820s, the newly created circuit judges were paid by a mixture of fees and salary. This system lasted until 1846, and although criticized by some, it was never the focus of the kind of angry denunciations which, as we will describe, characterized the Nova Scotian debates. The same can be said of other British North American colonies, where fees had either long been abolished (Upper and Lower Canada) or stayed in place until mid-century (New Brunswick).Footnote ⁴⁶

In Nova Scotia, debate over fees quickly became a contest between the new movement for democratic reform and the establishment. The first public mention of fees appeared in a September 1832 editorial in the Pictou Colonial Patriot, penned by Blanchard, who sat as a representative for the Pictou district of Halifax County.Footnote ⁴⁷ He complained that Chief Justice Blowers received £400 annually in fees “to which, upon no principle of either law or equity, has he the faintest claim.”Footnote ⁴⁸ Blanchard's attack on the fees did not provoke any action initially, but by 1834 fees were debated in the Assembly, and they were discussed every year thereafter, sparking an increasingly heated debate in which reformers accused the judges of fleecing ordinary people while the latter defended fees as an exercise of customary and property rights.

Through the 1830s, the fees issue was tied to the question of responsibility for the costs of local government. In February 1834, the Assembly was faced, not for the first time, with a demand from London that it take responsibility for the salaries of local officials—a civil list—in return for receiving control of what were called the “casual and territorial revenues” of the Crown: revenues other than those raised by the Assembly.Footnote ⁴⁹ Otherwise, London threatened, it would pay the costs of local government by collecting quit rents, the threat it had made but not followed through with in 1830. Most assemblymen wanted the deal in principle, but executive and Assembly could not agree on the details. Much of the difference between them was about remuneration for judges, which in turn raised the fees issues, with two main proposals being brought forward. The first, which declared that the fees should be abolished outright and no compensation provided, failed 19 to 17. The second proposal was for a fund into which litigants would pay their fees, and out of which the chief justice would draw £400 and the puisnes £100 annually, ensuring that increased litigation levels did not benefit the judges personally. This compromise position attracted much wider support, passing 24 to 9.Footnote ⁵⁰ However, as the Assembly's civil list proposals faltered, the fee fund idea came to nothing. At this stage, those arguing for reform focused on the ideas that judges were paid enough in salaries, and that fees, as Blanchard insisted, hurt the poor and therefore made justice less accessible.Footnote ⁵¹ Little was said about the idea that fees might be illegal.Footnote ⁵²

The debates became more heated when the Assembly revisited the issue in the 1834–1835 session. By this time, the matter was generating attention among a wider public, as evidenced by a number of petitions to the Assembly.Footnote ⁵³ In late 1834, the House appointed a committee to investigate abolishing fees and began collecting information and drafting a bill to abolish them without compensation, which passed easily.Footnote ⁵⁴ Therefore, in less than a year, the Assembly that had voted for continuing fees but restricting them, now preferred abolition without compensation. Despite the Assembly's new determination, the bill was summarily rejected by the Council, presided over by Chief Justice Halliburton himself.Footnote ⁵⁵

By 1835, many, although not all assemblymen had come around to the position that the fees were illegal. When the Council blocked abolition, Cornwallis merchant and conservative, John Morton, member for King's County, moved a resolution contending provocatively that as the fees were not authorized by any colonial statute, they were unconstitutional and should not be taken by the judges. A less controversial, but still pointed, resolution was then offered instead: “That the receipt of Fees by the Chief Justice, rests upon no better constitutional principles, than the payment of the Quit Rents of Private Individuals,” a reference to the opinion of most members that the government had no right to collect the quit rents. This passed 20 to 14; when the original resolution by Morton was also put, it failed 19 to 16.Footnote ⁵⁶ Therefore, by 1835, a substantial majority of members thought that fees should be abolished without compensation, most of those believed that there was no legal basis for their collection, and a good many people, although not a majority, were prepared to say so very explicitly. The principal reason given for illegality was that fees had not been sanctioned by the Assembly. This argument rested on the fact that the House had legislated with respect to fees generally in the 1787 Fees Act,Footnote ⁵⁷ and that legislation said nothing about the chief justice's fees. The argument conveniently ignored the fact that when the 1787 bill was passed, the acting chief justice had agreed to a commutation; it seems more than plausible that the chief justice's fees had been omitted from the Act for that reason. But the significance of the argument lies in the assertion that the legislature, and only the legislature, could decide what fees were to be collected.

The Council's blocking of the 1835 bill inflamed the controversy. One of the petitions tabled in the Assembly in response, for example, described fees as “Exactions made upon the most distressed part of His Majesty's subjects,” whereas another urged the Assembly to pass an abolition bill “Session after Session until the point is established that no money in any shape can be levied on the people but by the sanction of their Representatives.”Footnote ⁵⁸ When the House reconvened in 1836, it passed an identical abolition bill, and when this too was rejected by the Council the Assembly appealed to London.Footnote ⁵⁹ The legality issue drove the opponents of fees and produced much invective. Morton insisted that “there was no law for the exaction,” and numerous other speakers used the word “exaction” and similarly insisted that the fees had not been sanctioned by the Assembly.Footnote ⁶⁰ One member even suggested impeaching the judges for their allegedly illegal actions.Footnote ⁶¹ The committee drafting the address to London called the fees “unconstitutional and repugnant to all just notions of liberty, because the Commons have always claimed the inherent and exclusive right of originating all Taxes upon the People.” In the same resolutions, assemblymen also attacked the ethics of the judges, arguing that fees “have a tendency to create disrespect for, and to weaken the confidence which ought ever to be placed in, the Tribunals of the country.”Footnote ⁶²

The last comment about disrespect may have been an oblique reference to a criticism of the fee system which received some play in the press: that the NSSC and ICCP judges essentially competed for litigants because they were competing for fees. They did so, asserted “Scrutator” in a special edition of the Novascotian published solely to accommodate the large number of letters received about the fees, by favoring “the leading and influential members of the Bar.”Footnote ⁶³ In the Assembly, Hugh Bell, reform member for Halifax, complained similarly that fees were “a bounty on the encouragement of litigation;”Footnote ⁶⁴ the more cases brought, the more the judges were paid. This was an argument redolent of what Daniel Klerman has suggested happened in England: judges favored plaintiffs (who chose the forum) with the result that they attracted more plaintiffs' counsel to sue in their court.Footnote ⁶⁵ But whether or not such accusations were generally believed outside, they formed little or no part of the Assembly resolutions; as we have seen, the emphasis was on the constitutional arguments.

Those who argued for preserving fees relied on property rights and legal custom, as evidenced by Halliburton's 1836 public defense of the fees.Footnote ⁶⁶ Although the chief justice conceded that their specific origin in Nova Scotia was unclear, he declared that established practice in the colony and its English origins in the superior courts at Westminster were sufficient legal justification. He went on to insist that fees had received legislative recognition, first from the Council, when it laid down a table of fees in 1785, and then by the commutation of the late 1780s, which he said was an implicit recognition of their validity by the Assembly. He further contended that his royal commission as chief justice, which bestowed “all the rights, profits, privileges and emoluments, thereunto belonging, in as full and ample a manner as any of my predecessors,” had granted him a right to take the fees; they were, as he stated later, “part of my real estate.”Footnote ⁶⁷ Because the office of chief justice was a creation of the home government, it followed that whereas the Crown could abolish that right as they had with English judges, the colonial government lacked the constitutional authority to do so. Halliburton's defense of fees was therefore also a defence of the mixed and balanced constitution, in which the Assembly shared power with the Crown and the Council.

For the Tory chief justice, the Assembly's excess of democratic zeal posed a serious threat to the state. It was, he said, “a Subject for regret, that one of the highest Officers in the Government, in whose integrity it is not desirable to shake the confidence of the People … should be accused of making illegal exactions, merely on account of his continuing a practice which he firmly believes was established before he was born.”Footnote ⁶⁸ The other NSSC judges were equally adamant in asserting the right to fees. William Blowers Bliss was in equal measure angry and indignant at the suggestion of illegality. He complained about being “slandered and abused in every shape by a set of low designing, artful scoundrels” who published “misstatements and false reasoning.”Footnote ⁶⁹ But whereas they were insistent about their rights, the judges were also realistic about the politics of the fee question, and appreciated that taking the issue out of the public debates was the best course of action. After the passage of the 1835 abolition statute, Halliburton tried to effect a compromise in the form of another commutation scheme, instituted not by the Assembly but by the executive, and Bliss wanted the fees question to be “so settled that we may not be henceforth vilified and abused and insulted on account of them.”Footnote ⁷⁰

The Colonial Office sided with the judges and rejected the call for abolition without compensation. At the behest of the Halifax government, and under some pressure from the judges' lobbyists,Footnote ⁷¹ Colonial Secretary Lord Glenelg concluded that the fees were legal, with the commutation of the 1780s confirming that, and as a vested right they could not be abolished without the compensation of a salary supplement from the Assembly.Footnote ⁷² This provoked considerable anger, in and out of the legislature; the most visible manifestation was a series of letters in the Acadian Recorder by “Joe Warner” (John Young), excoriating what he called the “aristocratic party” (the Council) for its many sins, including its handling of the fees question.Footnote ⁷³ The 1836 election was the first to be fought in the colony along clear party lines and with party “platforms.” Significantly, when Halifax reformers decided to run a slate of candidates based on those candidates' commitments on a series of issues, one of the issues chosen was fee abolition.Footnote ⁷⁴ The reformers won a substantial majority, and in late February and early March 1837 Joseph Howe, one of the principal reformers, introduced his “Twelve Resolutions,” a series of critiques of many aspects of colonial government, including the composition of the Council. One of the resolutions asserted that “among the many proofs that might be adduced of the evils arising from this imperfect structure of the upper branch” was the “recent abortive attempts to abolish the illegal and unnecessary Fees taken by the Judges of the Supreme Court.” This passed 19 to 16, and was followed a few weeks later by the ubiquitous Morton introducing yet another abolition bill. It went through all stages without amendment, accompanied by more petitions on the subject.Footnote ⁷⁵

By this time, the fees issue had become subsumed in the broader negotiations among London, the Halifax government, and the Assembly over the civil list. Key to the failure of these negotiations was the inability of the parties to agree on salary levels, including those of the NSSC judges, and in turn a large part of that failure was the continuing disagreement over the fees. The Council and the London government accepted that fees were no longer politically palatable to majority opinion in the colony, but both were insistent that they could not be abolished without compensation (higher salaries), which the Assembly was not willing to grant. Glenelg's solution was to raise salaries and pay the difference out of local Crown revenues.Footnote ⁷⁶ The salary of the chief justice would be £1,000 sterling and those of the puisnes £650 sterling. Because this represented an overall reduction in current income for the chief justice and potentially a limitation on future remuneration for the puisnes who would not benefit from increases in litigation on circuit, Glenelg also insisted this his scheme required the judges' approval. Like them, he saw fees as an entitlement of office, a form of property, and whereas he was prepared to impose his arrangement on any new appointees, he would not do so with incumbents.Footnote ⁷⁷

The judges desperately wanted the fee controversy to go away. Bliss was dismayed at the Assembly's “continued declamations and declarations of our illegal exactions” and worried about the “injurious effect throughout the Province” they would have “both upon the character of the Judges and the administration of the laws by them.”Footnote ⁷⁸ He and the other puisnes quickly if grudgingly agreed to the proposal, as did Halliburton, who knew that the fees were now indefensible to most Nova Scotians. He agreed, he later said, “to allay any discontent which might be excited against those who were appointed to preside in the Supreme Court.”Footnote ⁷⁹ The new scheme went into effect from January 1, 1839,Footnote ⁸⁰ although it was not the final resolution of the issue. Judicial fees continued to cause controversy and delayed settlement of the civil list question for more than another decade.Footnote ⁸¹

By the time it was finally settled, the fees issue had dragged on for at least 15 years. At the height of the controversy in the 1830s, opponents of fees made it one of the leading issues of the day. They were able to do so not so much because the sums collected were so extravagant, but because they could lean heavily on the need for democratic control of public revenues, often equating it with the taxation and representation debates of seventeenth-century England.Footnote ⁸² Although the Assembly never effectively countered Halliburton's arguments on legality, whether reformers were “right” does not matter. What matters is that they were able to use the emerging power of the press and the nascent moves toward party politics in the 1836 election to great effect. Public opinion emerged as a powerful force, transforming conventional wisdom in the colony, and doing so with indifference toward the fact that critics enraged the judges and demeaned the judicial branch in the process. Therefore, the Nova Scotia fees controversy, like the debate over salaries, saw the colony charting its own course and developing its own distinct legal culture and legal reform tradition. The rhetoric about fees, and, indeed, the reality of the Assembly's commitment to abolition without compensation, were redolent far more of the populist court reform plans of Jacksonian America than it was of the much more tepid approach to this or many other judicial issues in Britain or elsewhere in British North America.

The Chief Justice and the Council, 1834–1838

One of the most egregious aspects of the fees controversy for reformers was the role played by Halliburton, as both the principal recipient of fees and a leading member of the Council that had so summarily rejected abolition. More broadly, Halliburton's continued presence on the Council in the 1830s came increasingly to be seen as an anachronism in a colony that had, through the first three decades of the nineteenth century, worked incrementally to achieve a separation between the judicial and other branches of government. The presence of the chief justice on the Council also gave impetus to the demands for a more representative Council generally; Halliburton, an Anglican high Tory, was something of a lightning rod for concerns about the ways in which councillors used their influence to defend their own interests and to block measures that had broad support from the elected elements in the provincial constitution.

Nova Scotia was hardly unique among British colonies in the eighteenth and early nineteenth centuries in the extent to which judges were involved in politics. In New Brunswick, for example, all the Supreme Court judges were members of the single (as in Nova Scotia) council prior to 1833, when separate executive and legislative councils were created.Footnote ⁸³ Similarly, in Upper Canada, the chief justice was always a member of the Executive Council until London ordained a change in policy in 1831, which will be discussed below, and other judges served on both councils.Footnote ⁸⁴ In Nova Scotia the chief justice had always been president of the Council, and in the eighteenth century all but one of the puisne judges were also councillors, some appointed before their elevation to the bench and some after. Many also sat in the Assembly. It was less common for nineteenth-century judges to be councillors, but half of those appointed before 1830 were.Footnote ⁸⁵ The NSSC judges were always important voices, and they enjoyed extensive tenures on council, especially compared to the many lieutenant governors who stayed for only a few years.

A series of statutes from 1809 on progressively barred the puisne judges and the divisional chief justices of the ICCPs from membership in the Assembly or from holding other official posts, although only the latter were precluded from Council seats, and, reflecting the period's concern with vested rights, there were exemptions for incumbents.Footnote ⁸⁶ The fact that the NSSC judges were allowed to continue on the Council reflected adherence to a principle of the mixed constitution in which the Council was to be appointed from society's elite. However, over time, it was increasingly seen as desirable that judges not be involved in politics. In the early 1830s, Beamish Murdoch, commenting on office-holding restrictions on the divisional chief justices, argued that whereas they might seem at first sight “hard and severe,” they were not. They were “intended to place the office beyond the suspicion of improper influence.” Indeed, he went on, implicating the NSSC judges, “[i]t seems desirable that all judges should be removed (as far as possible) from the hopes and fears of political life, and the strife of business” so that “their minds may be undisturbed by any passions that would bias their judgment.” It was also “a fair principle of constitutional governments, to require a thorough separation of the judicial, the legislative, and the executive powers.” Murdoch, despite flirting with reform politics in the 1820s, was a firm believer in the eighteenth-century constitution and opposed to giving too much power to the elected branch.Footnote ⁸⁷

The Assembly could bar judges from being elected to it, and could impose restrictions on judgeships it created, but it had no control over the chief justice, a matter for the home government. By 1830, London, at least, was persuaded that it was inappropriate for colonial judges to be councillors. Agitation about this issue had come particularly from reformers in Upper and Lower Canada, and had resulted in a Parliamentary Select Committee on the Civil Government of Canada. The Committee recommended that all judges be excluded from executive councils, and that only the chief justice, “whose presence on particular occasions might be necessary,” should participate in legislative councils.Footnote ⁸⁸ The report clearly had implications for all British North American colonies,Footnote ⁸⁹ and although it was not implemented immediately, it did guide the Whig government that came to power at Westminster in 1830. At the end of 1830, London issued instructions that “in future … the Puisne Judges … should not be admitted to Seats in the Council.”Footnote ⁹⁰ Judges who were already on councils were to remain, and in practical terms this meant that of the NSSC judges only Chief Justice Blowers and Halliburton were councillors after 1830, and only the latter after Blowers' resignation as chief justice and Halliburton's elevation to the post in 1833.

The home government was not prepared to displace incumbents, but by 1834 some reformers in the Assembly were demanding both the separation of the unitary Council into two bodies – Legislative Council and Executive Council – and changes in the composition of the former, making Legislative Councillors more broadly representative of the colonial population. And when the issue of Council membership was raised, the role of the chief justice came under attack; a February 1834 motion asserted both that the Council should be split and that “no person holding a judicial appointment should be an Executive Councillor.”Footnote ⁹¹ Its mover, Solicitor General Charles Fairbanks, insisted that “the exercise either of legislative or executive powers, was incompatible with the due administration of justice.”Footnote ⁹² Others made the same argument, but the motion was defeated, 24 to 12.Footnote ⁹³

Local opinion was thus divided on the question. The other side to the argument is exemplified by William Blowers Bliss, who resigned his seat in the Assembly without complaint when he was made an NSSC judge in 1834. He agreed that judges should not sit in the Assembly, but defended a role for the chief justice on Council as not merely justified but necessary. London's 1830 prohibition was a “very good rule in the abstract,” but “in point of practice a bad one.” Good Tory that he was, Bliss believed in the need for checks on democracy and its excesses. Judges were the “best members” of Council, because “the laws that sometimes pass the lower house show how necessary it is to have lawyers in the upper to read, to watch, and to amend or reject them.” Bliss also linked judicial exclusion to the demand that some assemblymen were making by the mid-1830s: that the Council itself be split into legislative and executive branches and that the former be elected. Such a change, he asserted, would “loose in some degree the connection between the Mother Country and this, it was one of the first things that tended to the disturbance in America.” It would also remove a “Constitutional check on the folly the extravagance and the ignorance of the Assembly.”Footnote ⁹⁴

When the Assembly next turned its serious attention to the chief justice and the Council it took little time to achieve the desired change. The reform majority returned in the election of late 1836 immediately targeted the Council, demanding its abolition and replacement with separate legislative and executive councils, that assemblymen be included in the executive, and that both councils not be packed, as the Council of Twelve was, with adherents of the Church of England and members of the Halifax commercial elite. The campaign to change the Council structure was part of the process by which the old colonial system, government by a small and narrowly constituted appointed elite, evolved gradually into what became, in 1848, responsible government. The removal of the chief justice from the executive branch was an important aspect of this broader process of constitutional reform.

The role of the chief justice, and the related issue of judicial fees, featured prominently in both the debates over Council reform and in Howe's “Twelve Resolutions” of 1837. Reformers made three, at times overlapping, arguments about the chief justice. First, there was an appeal to the broad constitutional principle of the separation of powers, assertions that mixing judging and politics lessened the legitimacy of the court. Howe demanded what he called “a broad line of demarcation, separating the Judiciary from politics.” This argument was bolstered by assertions that it was against British constitutional practice for judges to be involved in executive government. Combining the powers to make laws, administer them, and advise the executive as to their execution, was “at variance with the principles of the British Constitution.”Footnote ⁹⁵ Howe sought to assure members that he was not attacking Halliburton personally: but, he insisted, “I would not permit the head of the judiciary to sit in the Legislative Council.”Footnote ⁹⁶ He seems to have forgotten that the lord chancellor was in the House of Lords, as were a good number of the chief justices of the courts of Westminster Hall in the eighteenth and early nineteenth centuries.

The second argument was personal. Not only was it not good practice for the chief justice to be on the Executive Council, Halliburton in particular, a judge with high Tory views, had always used his influence to resist reform. As Howe put it, Halliburton was wont to “mingle in the strife of politics—and, by his influence over the Courts and the Bar, to foster and maintain a narrow and illiberal party in the Country.”Footnote ⁹⁷ Halliburton was thus accused of being able to control the legal profession as a whole, through his personal status and his control of patronage, such that lawyers would not disagree with him on questions of politics.Footnote ⁹⁸ This was obviously an appeal to, and a reflection of, the general anti-lawyer sentiment that we have discussed, and its potency can be seen in the fact that many of the pro-Halliburton speakers in the debates were more concerned to counter the argument that he had such an influence than to defend his position on the Council.Footnote ⁹⁹

Influence over the profession aside, the real problem was Halliburton's politics and the alacrity with which he defended the old order. Halliburton was not only unelected and a member of the judicial branch, he was well known as a Tory, and as the address to the Crown put it, he had always shown a “warm interest” in politics, and “particularly” in issues “in which the Representative Branch and His Majesty's Council have been diametrically opposed.” As a result “he has frequently been brought into violent conflict with a People imbued with the truly British idea that Judges ought not to mingle in the heats and contentions of Politics.” This language was too strong for some; James Boyle Uniacke, lawyer, member for Cape Breton County, and the brother of a former NSSC judge, successfully albeit narrowly (23 to 21) had it amended to a milder statement that Halliburton's role as councillor “has a tendency to lessen the respect which the people ought to feel for the Courts over which he presides.” It was this form of words that went into an address sent to the Crown in April 1837.Footnote ¹⁰⁰ But although the words were less strident, the meaning was the same: it was time for Halliburton go. Many instances were adduced of his having opposed the wishes of the Assembly.Footnote ¹⁰¹ Perhaps testament to the fact that the legal profession was indeed less than willing to criticize the chief justice, fourteen of the sixteen lawyers who voted supported Uniacke's amendment, including two reformers.

The third argument used against Halliburton was the specific issue of judicial fees. No better example could be found, reformers argued, of the baneful influence of his presence on council. Howe asserted that “among the many proofs that might be adduced of the evils arising from this imperfect structure of the upper branch” was the “recent abortive attempts to abolish the illegal and unnecessary Fees taken by the Judges of the Supreme Court.”Footnote ¹⁰² In another resolution Howe referred to “the disposition evinced by some [councillors] to protect their interests and emoluments at the expense of the public,” a comment that clearly included Halliburton, although in context it was not limited to him. Although Howe's original resolution was amended, this phrase remained, and the resolution passed 25 to 18.Footnote ¹⁰³ Howe did not mince his words on this issue: “when Bills abolishing the illegal exaction of One Thousand Pounds per annum taken by the Judges in the shape of fees, are year after year burked in the other end of the Building, by a Body over which presides a gentleman largely interested in that exaction, is it unfair to attribute to him some agency in their destruction, or to wish that he had not been placed in a situation where his public duty interferes so much with his private interests?”Footnote ¹⁰⁴ Speaker after speaker came back to this issue.Footnote ¹⁰⁵ His handling of the fees issue was also something for which Halliburton had been strongly criticized in the Assembly before 1837. As John Young stated in one of the fee debates in 1836: “We have sent two Bills to the Council … regarding the fees; these bills have met their fate, as the Chief Justice sits in the upper House ready to guard and protect his own interests.” The rejection of those bills, asserted Young, “must be and almost is universally attributed to the preponderance of his influence in the Council.”Footnote ¹⁰⁶

Although there were defenses of Halliburton's role in the Assembly, they tended to defend his personal and judicial integrity rather than justify his position on the Council. Alexander Stewart agreed that “the Ermine of Justice should be kept unsullied, and the Judges should not take part in politics,” but he was mainly concerned to deny the accusation that Halliburton was either the leader of the Bar and/or the leader of the Conservative Party as a whole.Footnote ¹⁰⁷ Uniacke argued that “[i]t was necessary that the upper branch should be presided over by a man of reading and research, acquainted with the principles of the British Constitution, and qualified to guide and superintend the deliberations of a Legislative Assembly,” but also conceded that the political connections of judges had the tendency to “excite suspicions,” and in that light he had no problem with removing the chief justice from Council to satisfy public opinion.Footnote ¹⁰⁸ Similarly to Stewart, Uniacke insisted that Halliburton's judicial integrity was intact, although in the process he conceded that Halliburton did indeed “mingle in politics.”Footnote ¹⁰⁹

There was much more substantial opposition to the removal of Halliburton from his colleagues on the Council.Footnote ¹¹⁰ Councillors principally insisted that his membership was useful as the colony's leading legal authority, because there was no better person to preside than one who “is every day in the habit of investigating and expounding the existing Laws.” The Council also relied on British precedent; some chief justices of the superior courts sat in the House of Lords. And claims of partiality were vehemently denied: Halliburton had been both councillor and judge for over 20 years “and no instance has been adduced even in the Debates upon this Address, of his ever having allowed political feeling to bias his judicial decisions.” This argument ignored the principal aspect of the Assembly's complaints, which were about Halliburton's politics rather than his judicial work.

For all the heated words emanating from Halifax, it proved easy to remove Halliburton. The new colonial secretary, Lord Glenelg, was broadly sympathetic to many of the reformers' demands, including separation of the Council into two bodies, a more diverse membership for both, and the removal of the chief justice. Glenelg insisted that “[t]he principle to be steadily borne in mind … is that all the judges … should be entirely withdrawn from all political discussions and from all participation in the measures of the local government.” He believed that there was some advantage in having the chief justice's advice in statutory drafting, but this advantage could not be obtained without running the risk of “the judges being drawn into the political discussions of the country.”Footnote ¹¹¹ The change was a signal victory for Howe and the reformers, one which delighted the former: “The removal of the Chief Justice from the Council, and the reconstruction of that Board, leads me to hope that measures of retrenchment will not be resisted, and that questions will be quieted which, for the good of the country, for the respectability of the Bench, ought to be forever set at rest.”Footnote ¹¹² To an extent, the campaign against Halliburton's role was part and parcel of a more general assault on the system of colonial governance, but it was the fees issue that made the separation of powers a crucial plank in reformers' demands for change, and contributed to the vehemence with which Halliburton was attacked personally, not simply as an institutional symbol of the old order. Not only was Halliburton generally seen as providing a brake on reform; by 1837, the fees issue had become a particularly egregious example of his influence.

Abolishing the Inferior Courts, 1836–1841

Concerns about the cost of the legal system not only engaged judicial salaries and fees, they also implicated the structure of the system as a whole, especially the civil courts. As noted earlier, the addition of four salaried judges to the ICCPs in 1823–1824 was frequently adverted to by critics as a prime example of the use of local tax revenues to enrich an elite profession.Footnote ¹¹³ By the mid-1830s, the reform movement had convinced most assemblymen that, as John Holmes, a Pictou County member and a conservative, asserted at the end of the decade, Nova Scotia simply had “too many courts and too much law for the good of the country.”Footnote ¹¹⁴ Something had to go, but it turned out not to be easy to agree as to what. Between 1836 and 1841, the Assembly debated two versions of court reform. One version would see the ICCP largely abolished (in most proposals Cape Breton Island was exempted, for reasons discussed below), the other would see reductions in the ranks of both NSSC and ICCP judges, leaving both courts intact. Between 1836, when the House rejected an ICCP abolition bill, and 1840, when a large majority supported a similar measure, a consensus emerged in favor of ICCP abolition, albeit one that did not receive the approval of the Legislative Council until 1841 after an even more overwhelming vote in the Assembly.Footnote ¹¹⁵ The Courts Act of 1841 abolished the ICCPs throughout the colony and transferred all cases to the NSSC. The divisional chief justices were pensioned off, and a fifth judge was added to the NSSC to handle the increased circuit workload.Footnote ¹¹⁶ In the interim, the Assembly rejected ICCP abolition on a number of occasions, and in both 1838 and 1839 it voted instead in favor of reducing the number of both NSSC and ICCP judges.

The road to court reform involved a complex set of arguments and also engaged regional interests and party loyalties. The need for economy was a consistent feature of Assembly debates. It was achieved to a small degree by a decision not to appoint a new associate circuit judge after incumbent Peleg Wiswall died in 1836.Footnote ¹¹⁷ But more substantial reform engaged questions about the quality of the lower courts and a concomitant concern for legal uniformity, as well as claims for democratic legitimacy and appeals to public opinion. The debates and votes reveal that party affiliation was clearly important, but by no means determinative; reformers invariably wanted some form of retrenchment, but so did most conservatives. Where party differences were revealed was in the choice of reform model. However, in that choice, regional loyalties appear to have mattered more than party, reflecting local preferences over which court people preferred to litigate in. Court reform was much less a party issue than were judicial salaries and fees or the separation of powers.

When assemblymen debated court reform, cost was a pervasive concern. In the often difficult economic times of the 1830s, rhetoric about the wastefulness of judicial salaries and superfluous courts was especially resonant. As Cumberland farmer Joseph Oxley put it, the abolition of the ICCPs would release Nova Scotians “from a heavy tax, for the support of courts that were totally unnecessary.”Footnote ¹¹⁸ Howe similarly bemoaned the “wasteful extravagance” and “useless expenditure” on courts, although he did not immediately support abolishing the ICCP.Footnote ¹¹⁹ We could fill many pages with similar comments. It was not simply that courts and judges cost too much money. It was also widely believed that court sessions interfered with the colonial economy by consuming too much of Nova Scotians' time as suitors, jurors, and witnesses. Attitudes to jury service in the colony reflected less the ideals of English jury ideology, which highlighted resistance to state oppression, and were more often rooted in simple annoyance at being taken from farming, fishing, and business pursuits. Court sittings often conflicted directly with planting and harvesting periods, prompting jurors to petition the legislature to have the court terms altered or abolished entirely.Footnote ¹²⁰ William Young, a lawyer, the son of John Young, and the leading reform/liberal politician of the 1840s and 1850s, stated succinctly: “whenever the inhabitants of a district are summoned from their homes as jurors, witnesses, or parties, the steady industry of the country is interrupted, and the wealth of the community diminished.”Footnote ¹²¹ This concern was acknowledged by Legislative Councillor L.M. Wilkins Junior, whose father sat on the NSSC; perhaps self-interestedly he argued that the peoples' real grievance with the judiciary was not about salaries but about the waste of their own time as jurors and participants.Footnote ¹²²

Wilkins, however, was wrong to try to downplay the importance of salaries, for two reasons. First, although many did complain about the disruption, others benefitted from the economic activity generated by the Supreme Court circuit, and communities frequently lobbied to be added to it and resisted being removed from it.Footnote ¹²³ Second, the expense of the courts, the major part of which was judicial salaries, was consistently seen as a hurdle to economic and social development. Although tumultuous economically, the 1830s also saw Nova Scotia allocate considerable resources to building infrastructure such as roads and bridges in the hope of fostering the colony's growth;Footnote ¹²⁴ however, more was always needed, and many saw high judicial salaries as a pernicious waste of scarce revenues. “I cannot tamely see the resources of this young country,” Howe told the Assembly, “so much required for purposes of internal improvement, squandered, upon any privileged portion of the people upon any particular profession.”Footnote ¹²⁵ He argued that the “useless” expenditure on the inferior courts since the 1824 act amounted to over £26,000, a sum that he claimed would have bought a road to the Gut of Canso and drawn Cape Breton much closer to the rest of the colony.

Advocates of ICCP abolition linked the need for economy with complaints about the court's allegedly low quality. Local lay judges were portrayed as unqualified and ignorant of the law,Footnote ¹²⁶ and one of the professional first justices, William Sawers, was not spared: he would never have qualified for a seat on any provincial bench “but for the passing of the unholy act” of 1824.Footnote ¹²⁷ Systemic flaws were found in the ICCPs' organization. Abolitionists argued that the inferior court system hampered legal uniformity. Oxley contended that as NSSC judges saw their circuit cases appealed to the full court in Halifax, they learned quickly when their judgments were overturned and did not make the same mistake again. The inferior court judges, by contrast, remained ignorant of legal developments and prone to repeat their errors year after year.Footnote ¹²⁸ In the Legislative Council, Wilkins argued that low-quality barristers frequented the court, and lawyer and leading conservative James W. Johnston alleged that the circuit system, under which the first justices moved through the same circuits year after year, kept the bench and bar from improving.Footnote ¹²⁹ Lunenburg lawyer John Creighton similarly contended that on his circuit each first justice was “omnipotent and could do as he pleased,” and that there was little chance for country suitors to overturn even radically bad rulings. William Young struck a similar chord, presenting one of his abolition bills as a way to regularize provincial law. The inferior judges, he noted, went on their own circuits with no uniform standards of practice, and as a result, “what is law at Annapolis may not be the law at Kentville or Pictou.” Young argued that “the property, reputation, and liberty of the subject, are less secure beyond Sackville Bridge than in the Metropolis,” where the NSSC sat four terms a year.Footnote ¹³⁰ For several leading abolitionists these problems were a far more pressing reason to do away with the courts than the monetary savings that might be achieved.Footnote ¹³¹ Without more accountability, Young argued, ICCP judges had authority far more absolute than those on the NSSC and “mischief and injustice must flow from so anomalous and defective a system.”Footnote ¹³² In stressing this concern, Young was advocating one aspect of the broad mid-nineteenth-century trend toward state formation; although court reform did not bring about the expansion of state bureaucracy, it certainly represented a demand for consistency and rationalization.Footnote ¹³³

Such complaints gave a considerable impetus to the abolition option. “If the people must go to law,” Conservative member for Amherst Robert Dickey contended, “let them go to the highest and best.” By now in the new Legislative Council, Oxley, the author of the 1836 abolition measure in the Assembly, urged councillors to compare the two courts. “The inferior will sink beyond comparison before the claims of the Supreme Court,” he said. “I am astonished that there can be two opinions on the subject—that anyone can entertain the idea of sacrificing the NSSC for the ICCP.” Johnston agreed, saying the high court would bring “even-handed justice to every man's door.”Footnote ¹³⁴

In the debates over court reform, both sides sought to draw legitimacy from public opinion. As Jeffrey McNairn has shown for Upper Canada in the same period, public opinion was becoming “the ultimate form of enlightenment, an elixir for all the ills of government.”Footnote ¹³⁵ And as historians have long noted for Nova Scotia, reformers such as Howe appealed to and manipulated popular sentiment to win some of the key constitutional battles of the time. The court reform discussions illustrate how the rhetoric of public opinion and the idea of democratic legitimacy came to matter in detailed questions of policy and legal administration in the colony. For advocates of both abolition and reduction, appeals were made on behalf of “the people” against an exploitative and appointed elite. Alexander Stewart, later a staunch Tory but in the mid-1830s a supporter of many aspects of reform, noted a “just clamour, which prevails throughout the country, against the influence of the profession and the cost of the Judiciary.” In endorsing an 1836 bill to reduce ICCP sittings in Cumberland, he insisted that the people of the county supported it: petitions ran 5 to 1 in its favor, he said.Footnote ¹³⁶ Assemblymen consistently used the example of the 1824 Act as exemplary of the way public opinion had been ignored in the past; Hants County shipbuilder and reformer Henry Goudge described the measure as having been “born in sin and shapen in iniquity.”Footnote ¹³⁷

Another argument often used by reformers was the alleged greed of the legal profession. As with court reform debates in the United States, much was made of the avarice of lawyers, their love of superfluous courts, and their protection of opportunities for future elevation to the bench. The profession plundered the colony's meager resources for its own benefit. Howe talked of “the aggrandizement of a particular profession,” whereas Hugh Bell, claiming that he liked many lawyers personally, insisted that there were too many of them, and that they were an “unproductive class.” When Young's abolition resolution failed in 1838, Dickey noted his lack of surprise that lawyers voted to retain the ICCP: “the more courts and terms and appeals, the better for Lawyers.”Footnote ¹³⁸ In fact, lawyers were a considerable block in the Assembly, and did tend to vote to preserve the ICCP.Footnote ¹³⁹ However, if lawyers were truly concerned only with self-interest, they would presumably have opposed all reform schemes, and that was not the case; in the 1838 and 1839 votes on reduction bills they came out largely in favor.Footnote ¹⁴⁰ It might be argued that lawyers would have preferred reduction to abolition because the majority of them benefitted from more litigation, whereas only a very few could hope to achieve judgeships.

The Assembly debates demonstrate a consensus in favor of a reduction in the cost of the legal system, and also that most of the arguments deployed supported the abolition, in whole or in part, of the ICCP. Opponents of the ICCP made powerful arguments, about wasted resources, exploitation of the many by the few, underdevelopment, and lack of professionalism and legal uniformity, all couched in appeals to public opinion. Defenders of the ICCP did not dispute the need for economy, but wanted that achieved by reductions in the number of judges on both courts. They could, however, offer few defenses of the ICCP, and relied principally on the argument that the court was popular.Footnote ¹⁴¹ They argued that the 1823–1824 reforms had been beneficial, citing the experience of their constituents. Gloud McLellan of Londonderry noted that in his district the number of suits filed in each court were nearly equal, and therefore “it may … be reasonably presumed that it is not the wish of all the people of Londonderry that these courts should be swept away from the face of the earth.”Footnote ¹⁴² Even in 1841, with abolition having been twice approved in the house by massive majorities, Attorney General Archibald insisted that the ICCP remained popular among Nova Scotians.Footnote ¹⁴³

Although the weight of the arguments seems to have favored ICCP abolition, and although the NSSC judges consistently indicated that they could handle the extra caseload that would come with it, it took some years for abolition to happen, and this fact suggests that the ICCP, for all its apparent flaws, was indeed popular in some quarters. Additional evidence for this comes in analyses of voting patterns on the three proposals to abolish the ICCP debated in 1836, 1838, and 1839, which reveal distinct regional preferences.Footnote ¹⁴⁴ In the 1830s, there were clear distinctions among the various counties and districts in use of the ICCP for litigation rather than the NSSC on circuit; the ICCP was the court of choice in places that were either far away from Halifax or closer but relatively inaccessible for the NSSC circuit, entailing arduous and lengthy travelling for the NSSC judges. Conversely, litigants in counties or districts close to the capital or to which the roads were relatively good preferred the NSSC. We have termed these either “ICCP counties” or “NSSC counties” respectively.Footnote ¹⁴⁵ Not all of the colony's counties fall into one group or the other; we have put these into a “miscellaneous group.”Footnote ¹⁴⁶ Across the three votes the abolition movement drew much more support from NSSC county members: 54 percent of the votes for abolition came from them, whereas only 18 percent came from ICCP counties (28 percent were from the miscellaneous group.) Making the same point another way, 53 percent of members from NSSC counties voted in favor of abolition, whereas only 24 percent of those from ICCP counties did so. The representatives from the other group split 51 to 49 percent in favor of abolition. Therefore, however much they might have wished for economy, many members from largely outlying regions, aware that their constituents liked the local court, were unwilling to achieve it by getting rid of the ICCP.

As one might expect, the converse was true when the Assembly voted not on abolition but on reduction of the number of judges in both courts. In both 1838 and 1839, Morton introduced more or less identical bills providing that neither the first vacancy in the NSSC nor the first among the divisional chief justices on the mainland would be filled, meaning that in time the number of judges on both courts would be reduced from four to three.Footnote ¹⁴⁷ Morton's bill passed in the Assembly both years, only to be rejected by the Legislative Council.Footnote ¹⁴⁸ In the 1839 vote on reduction, 71 percent of the ICCP county members voted for it (eleven of fifteen), whereas only 45 percent (ten of twenty-two) of NSSC county members did so.Footnote ¹⁴⁹ The figures were very similar in the vote the year before.Footnote ¹⁵⁰

The links between region and voting patterns on abolition versus reduction are complicated by the fact that the 1838 and 1839 abolition proposals exempted Cape Breton Island. They did so largely in recognition of the fact that in a region so far from the capital, the ICCP was overwhelmingly the court of choice. Not only was the island literally far away, the poor roads and the need for internal travel by water made the NSSC judges on circuit often late.Footnote ¹⁵¹ And the divisional chief justice for Cape Breton Island also performed a function not often given to the other chief justices: invariably presiding at capital or otherwise serious criminal trials pursuant to special commissions of oyer and terminer.Footnote ¹⁵² The result of the exemption was that Cape Breton members could vote for abolition on the mainland without losing courts popular with their constituents. And they did so, by a margin of 8 to 5 in favor of abolition. Therefore, eight of the ten votes that ICCP county members cast for abolition came from Cape Breton. If Cape Breton members are removed from the calculations, members from ICCP counties voted 26 to 2 against abolition over the three votes.

In short, regional loyalties mattered in court reform debates. This is not to say that there was a complete correlation between region and voting patterns. Morton, for example, came from an NSSC county and was the principal sponsor of reduction bills. Presumably his distrust of elite judges, exemplified by his leadership in the fees agitation, led him not to wish to leave the NSSC judges as sole occupiers of the field. On the other side, John Creighton, a conservative and a representative of an ICCP county, Lunenburg, introduced a bill for ICCP abolition in 1836 and voted in favor of abolition again in 1839. Morton and Creighton and others presumably based their votes, at least in part, on the broader arguments about the quality of the courts.

The importance of region is highlighted by a comparison with party affiliation. Reformers were more in favor of abolition of the ICCP than were conservatives; across the three divisions reformers' votes opposed abolition but only by a margin of 31 to 29; conservatives opposed it 29 to 17.Footnote ¹⁵³ Therefore, a majority of members from both parties were against abolition, even if conservatives were more so,Footnote ¹⁵⁴ whereas the regional breakdown shows one group (NSSC county members) in favor and one group (ICCP county members) against. Party differences were even more muted on the issue of whether there should be court reform at all; only a handful of members opted for the status quo and resisted both abolition of the ICCP and reductions in judicial staffing levels in both courts.Footnote ¹⁵⁵

Despite its popularity in some regions, ultimately the ICCP fell victim to several currents in colonial politics. Concern about the expense of the judiciary was especially prominent during the 1830s when infrastructure projects seemed far more worthy of provincial support than did judicial salaries. In addition, abolitionists targeted the court as ill-suited to fostering legal uniformity, an important aim of colonial state formation. Finally, many insisted that the ICCP was democratically illegitimate because it had been foisted on the colony by the insular legal profession and remained unpopular. These themes of accountability, uniformity, and legitimacy link the court reform question in Nova Scotia to many other issues of provincial politics during the age of reform. They also connect it to debates in England and the United States. In England, reformers aimed to foster wider legal uniformity and professionalization in the justice system and, therefore, created a new system of county courts in 1846. Although similar in motive, the English changes kept the inferior court system decentralized whereas Nova Scotia sought to achieve the same things by giving a monopoly to the Halifax-based NSSC.Footnote ¹⁵⁶ Perhaps a more suitable comparison, then, would be to the United States, where almost every state re-examined its justice system during the Jacksonian period and often focused, as in Nova Scotia, on concerns about accountability and popular consent. But the American tendency to demonize judges personally and the widespread conversion of judicial offices into elective positions were very different solutions to what took place in Nova Scotia. ICCP abolition illuminates the distinctive nature of reform culture in the province.