A Trying Question: The Jury in Nineteenth-Century Canada By R. Blake Brown Copyright © The Ontario Historical Society, 2010 This document is protected by copyright law. Use of the services of Érudit (including reproduction) is subject to its terms and conditions, which can be viewed online. https://apropos.erudit.org/en/users/policy-on-use/ This article is disseminated and preserved by Érudit. Érudit is a non-profit inter-university consortium of the Université de Montréal, Université Laval, and the Université du Québec à Montréal. Its mission is to promote and disseminate research. https://www.erudit.org/en/ Document generated on 04/05/2021 9:39 p.m. Ontario History A Trying Question: The Jury in Nineteenth-Century Canada By R. Blake Brown Lori Chambers Imagining New Worlds in the New World: Entertainment, Agency, and Power in Upper Canada Volume 102, Number 2, Fall 2010 URI: https://id.erudit.org/iderudit/1065585ar DOI: https://doi.org/10.7202/1065585ar See table of contents Publisher(s) The Ontario Historical Society ISSN 0030-2953 (print) 2371-4654 (digital) Explore this journal Cite this review Chambers, L. (2010). Review of [A Trying Question: The Jury in Nineteenth-Century Canada By R. Blake Brown]. Ontario History, 102(2), 239–241. https://doi.org/10.7202/1065585ar https://apropos.erudit.org/en/users/policy-on-use/ https://www.erudit.org/en/ https://www.erudit.org/en/ https://www.erudit.org/en/journals/onhistory/ https://id.erudit.org/iderudit/1065585ar https://doi.org/10.7202/1065585ar https://www.erudit.org/en/journals/onhistory/2010-v102-n2-onhistory04948/ https://www.erudit.org/en/journals/onhistory/ 239 ook Reviews Autumn 2010B • A Trying Question: The Jury in Nineteenth-Century Canada • Mohawks on the Nile: Natives among the Canadian Voyageurs in Egypt 1884-1885 • Labour Pains: Thunder Bay’s Working Class in Canada’s Wheat Boom Era • An Historian’s Notebook: 100 Stories – Mostly Peterborough • One Hundred Rings and Counting: Forestry Education and Forestry in Toronto and Canada, 1907-2007 • Woldemar Neufeld’s Canada: A Mennonite Artist in the Canadian Landscape, 1925-1995 • Art and Politics: The History of the National Arts Centre • Creating Memory: A Guide to Outdoor Public Sculpture in Toronto A Trying Question: The Jury in Nineteenth- Century Canada By R. Blake Brown Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2009. xiii + 335 pages. $65.00 hardcover. ISBN 978- 1-4426-4038-2 (www.utppublishing.com) The jury remains a central symbol of justice and, writes Brown, “holds a cherished place in the legal im- agination of many Canadians.” (p. 3) Ju- ries, however, try only a small minority of modern cases in Canada, an apparent contradiction that has its origins in the nineteenth century. R. Blake Brown’s im- pressive monograph, A Trying Question: The Jury in Nineteenth-Century Canada, provides a detailed and perceptive explana- tion of the intellectual, geographical and political reasons for the decline of the jury. The jury came to British North America “as a key plank of English legal culture” (p. 7) but local conditions created challenges from early in the history of the colonies. Brown explores the decline of the jury in two jurisdictions—Nova Scotia and Upper Canada/Ontario—as test cases to explore the ways in which geography, infrastruc- ture and development, climate, politics, economics and immigration impacted the Ontario History / Volume CII, No. 2 / Autumn 2010 240 ONTARIO HISTORY history of the jury. Brown divides his monograph into three parts that are broadly chronological. First he explores juror apathy and allega- tions of jury packing prior to 1850, before responsible government had been estab- lished in either Upper Canada or Nova Scotia. He illustrates convincingly that jurors complained of the time and travel spent meeting their responsibilities, plus the out-of-pocket expenses. He finds that these problems were particularly acute in Nova Scotia because of the distance be- tween settlements and the chronic poor state of the roads. They were even worse than those in Upper Canada! In the ten- sion-filled era preceding the achievement of responsible government, moreover, al- legations of packed juries “flew furiously” (p. 16) in newspapers in both jurisdictions and undermined the image of law as just and neutral. In response to these concerns, Upper Canada reformed the process of jury selection, reducing discretion and im- posing safeguards to ensure wide political representation, but by so doing produced new problems of complexity and expense. In Nova Scotia, such reform came more slowly, the manner of selecting jurors con- tinuing to be highly political well into the era of responsible government. In the second part of A Trying Ques- tion Brown explores the impact of respon- sible government on the jury as an insti- tution, and on public ideas about jurors themselves. Brown writes, “jurors were per- ceived to lack the competence to evaluate evidence, particularly in complex cases.” (p. 171) He argues that reforms in jury selec- tion in Upper Canada continued to arouse complaints about costs and inconvenience. In Nova Scotia, a series of highly politi- cized cases in which jury selection was con- tentious for party and ethnic reasons fur- ther undermined citizens’ faith in juries. Ironically, moreover, in both colonies the achievement of responsible government undercut the perceived need for the jury; if the state was not an oppressive institu- tion, and instead represented the interests and values of the majority, the protection of the individual by a jury of his peers was no longer necessary. Liberal thought, ris- ing to prominence at the middle of the nineteenth century, threatened the very existence of the jury. Finally, Brown turns his attention to the fate of the jury in post-Confedera- tion Canada. Complaints about the cost of the jury system remained endemic, and he records that citizens were as disinclined as ever to serve. Jurors were perceived as “irrational decision makers” (p. 173) and, particularly in Ontario, were thought to be a threat to economic expansion because they were overly keen to punish corpora- tions in the era of emerging monopoly capitalism. Fear that the jury could be ei- ther prejudiced or simply inadequately educated for the task at hand was offset by a growing faith in the general popula- tion that judges and lawyers were impartial professionals (a view certainly encouraged by lawyers themselves). Brown sees the de- cline of the jury as intimately linked to the rise of law as a self-regulating and power- ful profession. In Nova Scotia, limits were placed on the use of trial juries; in Ontario, legislation eliminated the jury in all but a minority of trials. Brown concludes that, despite dif- ferences between Nova Scotia and Upper Canada/Ontario, similar factors led to the decay of the jury system in both provinces. He makes four points. Jury service was sim- ply too personally burdensome for too many people and it became increasingly difficult to empanel juries. Citizens believed that elected legislatures reduced the likelihood of government tyranny; the grand jury in 241book rev�ews local administration—“cloistered and se- cretive” (p. 219)—could not withstand the appeal of responsible government. Thirdly, newspaper evidence convincingly demonstrates that as juries became more expensive they became increasingly un- popular. And finally, citizens believed that legally-trained legislators were well suited to introducing liberal principles that re- flected the tenor of the late Victorian era. Brown weaves these themes together in a seamless narrative that is as entertaining as it is informative. The test case jurisdictions, Nova Scotia and Upper Canada/Ontario, reflect both problems and ideas linked to local conditions, and broad themes that should be further explored in comparison with other regions, colonies and provinces. A Trying Question should be required read- ing for anyone interested in the historical administration of justice. Lori Chambers Lakehead University Trapped in Khartoum and besieged by Muslim forces, Major-General Charles Gordon sent a desperate message to the British army requesting aid. The only route to Sudan was south along the Nile River, a trip that required an incred- ible expenditure of men, supplies and money. In the end it was all for naught: Gordon was killed, the Muslims cap- tured Khartoum, and the British Empire re- corded another story of English bravery. Carl Benn has found an overlooked el- ement of this story: the British army’s deliberate recruitment of Mohawk boatmen from several Iroquois communities, engaged to navigate the expedition south- ward up the Nile. Benn’s purpose for writ- ing this story is twofold. First, he wished to show that the Mohawks’ contribution fell within norms of Iroquois “cultural prac- tices, work patterns, and alliance relationships.” (p. 10) Secondly, Benn contends that aborigi- nal history, if it is to be comprehensive, “ought to be understood within broader settings beyond the narrower realms that tend to structure schol- arly inquiry about the First Nations.” (p. 17) Mohawks on the Nile is a bit disappointing at first, but more satisfy- ing in its final chapters. The first three chapters recount the Mohawk Mohawks on the Nile: Natives among the Canadian Voyageurs in Eg ypt 1884-1885 By Carl Benn Toronto: Dundurn Press, 2009. 280 pages. $40.00 hardcover. ISBN 978-1-55002-867-6 (www.dundurn.com)