James Muir. Law, Debt and Merchant Power: The Civil Courts of Eighteenth-Century Halifax. (Toronto: University of Toronto Press, 2016)
By Barry Cahill
James Muir’s book is a densely-detailed study of the administration of civil justice in Halifax from its founding in 1749 to about 1766. Though legal history has been slow to reach the mainstream, this is a welcome addition to the increasingly sophisticated historiography of eighteenth-century Atlantic Canada. Muir deals with all four civil courts – inferior court of common pleas, chancery, divorce, and vice-admiralty – , but his focus is chiefly on the first, where most of the litigation occurred. The argument is based on a close analysis, statistical and otherwise, of civil court case records, which are extensive for the jurisdiction and period concerned. Indeed, the book is a series of minute, if not microscopic, case studies. The lens through which the evidence is viewed is both procedural and substantive law, involving the nature of action and process, and the narrative presupposes considerable technical knowledge of Anglo-American historical law. This is not a book for amateurs or under-graduate students; it is hard-edged internal legal history.
At the higher methodological level, the work both fascinates and provokes. Muir claims that “This book is a work of social history” (9), but many social historians may not view it as such. Rather, they would see it as a work of legal history, a discipline that emerged in Canada in the early 1980sand was initially separate from mainstream history. Muir also states that the “political story” of Nova Scotia is not part of the study and claims that his socio-legal approach makes up for the absence of political history. In view of the “merchant power” in the book’s main title, however, such a claim is unsustainable. The power to which he refers was no less political than economic. The Justices Affair of 1752-53, for example, which Muir discusses, was a political struggle between rival mercantile and settlement groups – Englishmen and New Englanders (especially from Massachusetts) – and its resolution was a compromise that had significant legal and political ramifications. It is not possible to separate law and politics in early colonial Halifax, nor would making the “political story” part of the study preclude a social history approach. The point, however, is that this book is not a work of social history.
The impression that one is dealing with an archetypal case which the primary source evidence documenting the actual cases has helped to construct is reinforced by the chapter titles: “Initiating Actions”; “Avoiding Trial”; “Going to Trial”; “Ending the Action”; “Appeals and Other Courts”. Internal divisions and subdivisions within chapters are helpful, as is the prosopographic detail which enables the reader to get to know the litigants. But the sense that one is dealing with an institutional history based on a forensic audit, so to speak, of adjudication is overwhelming. From introduction to conclusion it is not altogether clear what merchant power had to do with the civil courts. The title of Muir’s 2004 dissertation – “Civil law in colonial Halifax: Merchants and craftsmen, creditors and debtors” – makes more sense and might have been preferable. Merchant power – yes, undoubtedly; historians have known that for a long time. But it was achieved through political means and had nothing to do with the civil courts. Yet politics is the driver of which Muir avowedly steers clear. His argument seems to be that wealth gave Halifax’s mercantile elite privileged access to civil justice while enabling them to use the courts to expand their economic power.
Despite welcoming the discussion of the role played by lawyers in the civil courts of eighteenth-century Halifax, one questions Muir’s description of them as “inexperienced and untutored” (95), which applies to the bench not the bar. While the bar was only in part professional, the bench was entirely lay, comprised without exception of placemen and officials.
The book suffers from poor organization, perhaps the result of the at times awkward transition from dissertation to monograph. The two appendices (“Sources and Methods” and “Interpreting Occupational and Status Data”), are somewhat redundant. Alternatively, the bibliography should have included both archival and printed primary as well as secondary sources. The Table of Contents lacks a list of the tables, an unfortunate omission given their number (22) and exceptional value. The tables would have been much more accessible and useable had they been published together in sequence. One would also have liked Muir to say something about the historiography, limited though it is. Sandra Oxner’s study, “The Evolution of the Lower Court of Nova Scotia,” absent from Muir’s bibliography, is now of historical interest itself, having appeared in the first scholarly study of Nova Scotia legal history: Law in a Colonial Society (1984).
Cavils such as these aside, Muir’s book is an interesting, original, and important work, part of the new wave of regional scholarship that integrates greater Nova Scotia into the history of the eighteenth-century British Atlantic. It also confirms that in terms of legal culture – how the law was utilized by those who had recourse to it – early colonial Halifax was more typical than unique, or even unusual, by comparison with other jurisdictions in this period.
Barry Cahill is Researcher, Nova Scotia Home for Colored Children Restorative Inquiry.