A Low Law Counter Treatise? ‘Absentees’ to ‘Wreck’ in British North America’s First Justice of the Peace Manual
A Low Law Counter Treatise? ‘Absentees’ to ‘Wreck’ in British North America’s First Justice of the Peace Manual
THE JUSTICE OF the Peace (JP) Manual was the law book most frequently used by legal officials in the Anglo-North American world, at least until the mid-to late nineteenth century, and certainly the law book that most affected the lives of ordinary people. It dealt with low law, the law of local administration, petty crime and small debts, not with the high law propounded by and administered in superior courts. It was law meted out in often very informal proceedings by men without legal training, without the trappings of ‘majesty’ and the learned speeches of lawyers.1 The JP manual thus certainly deserves a place in the history of legal literature.
But is a JP manual a treatise, and if it is not, what is its relationship to the history of the treatise? My answer is no to the first question. Definitions of treatise in legal and other dictionaries abound, and despite their differences they have two things in common. First, all of those which I have found insist that a treatise is a ‘methodical’, ‘formal’ and ‘systematic’ discussion of a particular subject. Many, although not all, of those definitions also claim that a treatise’s methodical approach includes an ‘exposition of the principles of the subject’, is ‘concerned with investigating or exposing the principles of the subject’, and has a ‘discussion of the . . . principles involved’2. Brian Simpson’s famous investigation of the rise of the treatise also includes a ‘logical and systematic’ approach and identification of underlying ‘principles’ as characteristics. He also argues that a treatise is a book which deals with ‘a single branch of the law that is conceived of as possessing some quality of unity, a requirement that eliminates the likes of Blackstone’s Commentaries’.3
JP manuals certainly do not deal with a single unified subject, and do not fit the other aspects of standard definitions either. They were always organised alphabetically, with no attempt to bring together conceptually similar topics. Moreover, they were divided into small topics, some recognisably ‘legal’ subjects – accessory – and others socio-economic categories – bread, for example.4 Thus they are unlike modern abridgements, which are also organised alphabetically but around large and clearly ‘legal’ categories.5 JP manuals cannot therefore be considered ‘systematically’ ordered if that word or ‘methodical’ is to be given any meaning at all beyond ‘non-random’. That is, they are more systematically ordered than they would be if topics were arranged neither by concept nor alphabet. But systematic and methodical surely imply some attempt to gather together in different parts of the book conceptually similar matter. Nor does a JP manual meet the second criterion, that of being an ‘exposition of the principles’ of a subject. Although ‘principle’ has been and is used to mean a variety of different things in the law, a manual does not seek to expound underlying core values or to elucidate leading cases and doctrines.6
What, then, merits the inclusion of a chapter on a JP manual in this collection? I have called it a counter-treatise, and by that I mean to highlight the fact that legal history throws up many different kinds of legal literature, each serving a different purpose. Treatises properly operated at an elite level, seeking to systematise and justify the law and to propound its principles and underlying values among the legal elite of high-profile lawyers, judges and legal academics. A JP manual did not offer justifications or seek to show the normative bases of legal doctrine. It simply instructed those whose job was to enforce state-sanctioned norms. Like the treatise, it dealt in authority, but its authority was highly positivistic – not the leading case or nostrums of natural law, but the detailed provisions of, largely, statute law. As noted at the beginning of this chapter, far more people were affected by JP manuals, on both sides of the divide between enforcers of the law and those subject to it, than by treatises, encyclopaedias and the like. Comparing the JP manual to the high law treatise, I would suggest, can help us to better understand the latter by thinking about the contrasts with the former.
In what follows I first describe the rise of the JP manual in England and its export to North America. I then examine the context out of which Marshall’s Manual was written, through looking at the author and his place in the court system of the colony of Nova Scotia. I then analyse the manual itself, including its use and reception in the years after publication. The final substantive section links the manual and the author in a search for the latter’s motivations in producing a landmark of Canadian legal literature.
II. THE JUSTICE OF THE PEACE AND JP MANUALS
JP manuals became so important because of the peculiarly English system of local government in which the JP was the jack of all trades. Although the office was originally only concerned with enforcing the peace, as its name suggests, from the fifteenth through the seventeenth centuries JPs acquired vastly increased duties – economic regulation, road maintenance, administering the poor law system, to name but a few.7 They also tried many minor offences and, while they lost jurisdiction over the more serious ones, they remained responsible for the pre-trial aspects of the criminal process – arrest, initial investigation, remand. As Landau succinctly puts it by the late seventeenth century the justice was both a judicial and an administrative officer: he insured that alleged miscreants appeared to answer for their offences; sitting either in or out of Quarter Sessions he heard and determined charges of all but the most major offences; he supervised parish government; and he administered county government.8
The system of government by JP was introduced into most of the colonies which declared independence from England, and all of those which formed British North America after the revolution. Indeed their trans-Atlantic jurisdiction was broader than at home, for in many places they also dealt with small debt and other civil causes. As prerogative appointments holding office at pleasure, they were the cornerstone of the counter-revolutionary system of colonial governance introduced after the revolution. From the late eighteenth century ‘the great object of the imperial authorities was to prevent the rise of a spirit of independence’ and thus ‘the colonial constitution weighed heavily towards the appointed executive rather than the partly elected legislative branch’9, and thus towards a preference for governance by JP rather than locally elected bodies.10
North American JPs differed from their English counterparts in one very significant respect. By the eighteenth century, English JPs were comprised of the existing social and economic elite, the gentry in the countryside, major merchants in the cities, clergymen and other professionals. They obtained posts of official power because they had social authority, and the former of course only reinforced the latter. British North America generally lacked the same kind of leadership class, and those available to be appointed to the commission of the peace were much more modest in means, educational attainments and, at times, respectability. The authorities did what they could, appointing many seigneurs in Quebec, for example, and elsewhere utilising professional men.11 But Nova Scotia’s JPs were generally from the middling sort, small farmers and traders, school teachers, independent artisans. As the author of the subject of this paper put it, local magistrates ‘although in general selected from the most suitable persons’ were largely of ‘ordinary education and attainments’ and as they had to work for a living ‘have but little leisure for the acquisition of any particular knowledge of the Laws’12. JPs who did devote themselves to the task were often criticised for that – they were ungentlemanly ‘trading justices’ who relied on their fees for their income, not respectable and independent amateurs.
Even the English JPs, no matter what their status and education, came to require guidance in carrying out their myriad duties. The earliest JP manual appeared in the late sixteenth century, and from its first publication in 1618, Dalton’s Country Justice became the standard text.13 It had challengers, notably William Nelson’s Office and Authority of the Justice of the Peace, published in 1704, which was the first one to arrange its subjects entirely in alphabetical order. From the mid-eighteenth century, the Rev Richard Burn’s Justice of the Peace and Parish Officer came to dominate the field. First published in 1755, it went through numerous editions and editors, with the last edition, the 30th, appearing in 1869. Burn’s manual followed the Nelson innovation of alphabetical listing. The 24th edition of 1825, for example, published a decade before the manual that is the subject of this chapter, began with ‘Accessary’ and ended with ‘Wreck’.14 Under each subject, common-law principles were explained and statutory references, some cases, and leading works such as Hale, Hawkins and Blackstone were quoted and referenced. Conley argues that Burn and its predecessors were ‘sophisticated yet easily digestible books’ which were crucial both to the justices’ work and to the standardisation of law and its administration. But Burn was the best, ‘lucid, comprehensive and accurate. . . . The justice could just open his Burn and follow instructions’.15
Versions of the leading manuals were imported into the American colonies and competed with locally produced and more or less ‘Americanised’ manuals. In the northern and middle colonies, Americanisation came mainly in the form of leaving out topics inapplicable to the colonies, and most manuals were otherwise knockoffs of English ones, even after the revolution. Southern manuals were much more localised, principally because they included much on the laws relating to slavery.16 No ‘localised’ English versions of Burn were available in British North America until the 1830s, although major parts of it were translated into French for use in Quebec as early as 1789. But Burn itself was available and reasonably widely used.17
Marshall’s Manual was the first British North American JP manual, in the sense that it was written locally rather than being a revised version of Burn, was based entirely on local law, and aimed only at JPs, excluding all other aspects of law and legal administration not relevant to the work of the JP.18 Manuals for some of the other colonies were produced at about the same time, suggesting that the time had come in the development of distinctive local law for a distinct local product.19 The following section explains its genesis.
III. JOHN GEORGE MARSHALL AND THE NOVA SCOTIA COURT SYSTEM
John George Marshall was born in 1786 in Country Harbour, Sydney County (now Guysborough County), Nova Scotia, the son of Captain Joseph Marshall, a loyalist emigré and something of a local grandee who served as a JP, Member of the House of Assembly (MHA), and judge of the Sydney County Inferior Court of Common Pleas (ICCP).20 Educated locally and at the Halifax Grammar School until he was 17, in 1804 the younger Marshall entered the law office of Lewis Morris Wilkins Senior at Pictou as an apprentice. A Columbia-educated loyalist, Wilkins was one of the colony’s best known, best connected and most able lawyers. He sat in the Assembly for 16 years and was speaker for 11. In 1816 he was appointed an assistant (puisne) judge of the Nova Scotia Supreme Court (NSSC). Marshall finished his apprenticeship and started practising in 1808, and two years later, in the general election of 1811, he succeeded his father as an MHA for Sydney County, a seat he held until 1818 and to which he returned in the 1820 election. He did not live in the area he represented; for some years he practised out of Pictou, and moved to Halifax in 1816 and henceforth practised from there.21 The change came about as a result of Wilkins’ appointment to the bench. Wilkins set Marshall up in partnership with his nephew Martin Isaac Wilkins, who had just been called to the bar, and the two took over the senior Wilkins’ practice.22 Throughout his years at the bar, Marshall also travelled the colony with the NSSC circuit. His practice was in both civil and criminal work, at all levels of court; as a criminal lawyer he acted both as a prosecutor and as defence counsel.23 Marshall was an active Assemblyman, and his work there reflected his interests in the law, education and, especially, sabbath observance as well as his willingness to pursue local legislation on behalf of his constituents.24 As we shall see later, this last was a particular passion of Marshall’s.
Marshall’s legislative career ended with his appointment as the Chief Justice of the inferior courts on Cape Breton Island in 1823. Functioning below the NSSC, Nova Scotia had county or district based lower civil courts – the aforementioned ICCPs – as well as similarly organised Sessions of the Peace, which served as both the principal mechanism of local administration and as the lower criminal court. Both courts were staffed very largely by layman JPs, prominent local residents picked for their loyalty to the central administration and the influence they could wield through their status as successful farmers, businessmen or professionals. Potentially all JPs could sit at Sessions, but the ICCPs were staffed by just five judges named in the relevant commission. Cape Breton Island had been a separate colony from 1780 to 1820, but in the latter year was reunited with Nova Scotia. In the process, its system of administration of justice was transformed. It lost its own Supreme Court, and the island was added to the NSSC circuit in 1820, although in a very limited way, for no more than eight days a year. Lower courts were also established, the ICCP and the Sessions Court to sit simultaneously twice a year at Sydney and twice a year at Arichat, for five days each session.25
The distance from Halifax, and especially the difficulty of travel there, meant that the NSSC on circuit was a relatively ineffective institution. The NSSC judges greatly disliked the many days of arduous travel to get there, travel which brought ‘a vast increase of labour, expense and peril to us unfortunate Judges’.26 Local residents resented both the lack of ‘service’ represented by only eight days of sittings, and instead preferred to litigate in the ICCP, although they also complained about not having a resident legally-trained judge.27 Almost as soon as the circuit was inaugurated, proposals for reform came from both the judges and leading island citizens, and after a good deal of debate over money – elements in the Assembly were never keen on paying for new judgeships – the solution was found in the creation of a new position of Chief Justice of the ICCPs on Cape Breton, and President of all Sessions Courts. The appointee was to be a lawyer who had been in practice for at least five years, and he would be paid a salary of £400 (£200 less than NSSC judges) plus fees and a travel expense allowance of £100.28
Marshall, who had been a member of a five-person Assembly committee tasked to report on the idea, was appointed to the post at the end of April 1823, beating out Shelburne MHA Jared Chipman, although he did not resign his seat in the legislature until 23 January 1824.29 He held the position until abolition of the ICCPs in 1841. The establishment of the Cape Breton Chief Justiceship was a relatively uncontroversial matter, much less so than the parallel arrangements made the next year for the mainland.30 Marshall presided over all the lower courts in the island’s three judicial districts, sitting twice annually at Sydney, Arichat and Port Hood.31
IV. THE MARSHALL MANUAL
Marshall wrote his Manual over several years in the early to mid-1830s,32 but he required public assistance to get it published. Early in March 1837, he offered the manuscript to the Assembly, asking that it take on the cost of publishing. He offered any profit to the Assembly, and stipulated only that printing ‘be commenced during the present year’ and be ‘under my own superintendence and direction’. An Assembly committee laconically reported that it had read the manuscript ‘in part’ and hastily, and thought it would be ‘useful’. The committee based its recommendation to publish mainly on the fact that Marshall’s experience made him the ideal person to write such a manual. The Assembly agreed to publish 500 copies,33 a notable expenditure in a period when small road grants were continually fought over and given that, a few years earlier, nobody had contemplated offering public assistance for what is a much more profound work, Beamish Murdoch’s Epitome of the Laws of Nova Scotia.34 Nor, for that matter, was any public assistance given to another Nova Scotia manual published in the same year as Marshall, Pictou lawyer Daniel Dickson’s guide for municipal officials,35 or to Thomas Chandler Haliburton’s 1829 Historical and Statistical Account of Nova Scotia – although the latter did receive a laudatory vote of thanks from the Assembly.36 By February 1838, the Manual had been printed and was ready for distribution. The Assembly agreed to pay the printing costs – £289-2-3 – and a committee also suggested that Marshall was ‘entitled to a reasonable compensation for the time bestowed in superintending . . . the printing’. It recommended £125, but the Assembly pared this down to £50. Advertisements for it appeared in local newspapers,37 and copies were to be distributed to all clerks of the peace, the clerks given the job of selling them to JPs and any other interested parties.38 Almost all of them were distributed, but as it turned out, the Assembly had a lot of difficulty over the next few years collecting on payments from the clerks.39
The Manual began with a brief seven-page preface, which tells us a good deal about his motivation for publishing the work. He saw the local administration of the law in the hands of the JPs as largely inadequate. The ‘greatest civil blessings’ which any society could have, he asserted, ‘are a wise and just system of Laws’ and ‘their enlightened and faithful administration’.40 Nova Scotia had the first, in large measure, but the first alone was not enough. What was required was ‘the wise and vigilant application’ of the law, which would not only produce a good effect in itself, but would also make the law become ‘generally known and most truly appreciated’. The colony lacked such a ‘wise and vigilant application’, and it needed ‘a more extended diffusion of the knowledge of the Laws . . . and with regard to many of them, a more extensive and active application’. Its legal system had ‘a very prevailing and injurious defect’ – that ‘the first steps in any criminal procedure, or the summary execution of legislative enactments, depend on persons in the Commission of the Peace, or other local officers’. The JPs were inadequate for this task, although their faults were not, he insisted, due to any ‘criminal intention or neglect’. Rather, they lacked the advantages of English magistrates, where ‘a knowledge of the laws . . . are perpetuated from one generation to another’, and where JPs are either ‘persons of good and liberal education’ and/ or men ‘so wealthy and independent in their circumstances, as to be able to afford leisure for acquiring the requisite knowledge’.
A variety of reasons explained why matters were so different in the colony. Immigration and frequent migration meant that the local population was both polyglot and unversed in the traditions of the English law. And it was from this motley collection that JPs had necessarily to be chosen. And, as noted in the introduction, he believed that the problem of their lack of education in the law was compounded by their unwillingness and in some cases inability to develop that knowledge. Even when they were so willing, they had no reference books to work from. There were English works, but they were ‘voluminous and expensive’, and ‘can but rarely be procured in this country’. Moreover, they were not particularly useful, containing no references to provincial statutes. And JPs rarely had a complete collection of those statutes anyway, with volume one especially being very hard to find.41 The result of all these problems was that magistrates were ‘generally uninformed’ about their duties, and ‘very frequently, when applied to, delay or decline to act’ either from ignorance or from fear of making a mistake.
There followed some 600 pages taken up with 135 articles, beginning with ‘Absentees’ and ending, as did Burn, with ‘Wreck’. It was thus a much smaller work than Burn, which in 1825 ran to five volumes and contained 251 titles. Most of the topics were legal terms – assault and battery, clerk of peace, indictment and witnesses. Others were social categories – beef and pork, highways, soldiers and taverns. Some of the entries were as short as one to two pages – absentees, blasphemy, bricks, freestone, lighthouses, partition, thistles and wife – most were three to six pages – accessary [sic], carriages, fires, revenue and warrant. Some were much longer; bail occupied 13 pages, rates 15, justices of the peace 20, seamen 21, spirituous liquors and bastards 25 each, evidence 31, poor 36 and summary trials 43. Reflecting the differences between high and low law, the number of pages devoted to a subject reflected its importance to a JP, and to ordinary inhabitants, not necessarily its ‘seriousness’ as normally measured or assumed. Thus the title ‘burning’, less than a page, simply reproduced the provincial statutory section on arson, making it a capital offence, and then stated that a JP’s duty when the offence was alleged was simply to take examinations and commit the accused to prison to await the next sitting of the NSSC.42