legal history, criminal law, context, institutions, rules, procedure, evidence, Nova Scotia, Ontario, jury, reform
In a 1984 review essay on the inter-relationship(s) oflaw and society in English criminal law historiography, Doug Hay observed that "in history, there is no 'background,"" His point was that there are an infinite number ofbackgrounds, all of which are moving and changing, often in non-linear fashion, at different paces, either in counter-point or direct dialogue with the foreground which is the immediate subject ofexposition. Legal historians who put their topics "in context" by treating the background as static are now fortunately few, at least when this background is conceived of as social or economic. But as Hay observed, the most immediately significant context for any area of legal history is often itself legal, and it is this legal context-the institutions, the rules of procedure and evidence--of which legal historians need to be the most aware, but often take for granted. Not that this is entirely our fault: while we have ample secondary sources on many non-law aspects of nineteenth century Canadian society, the nittygritty of the system has not attracted the same interest. While there are compelling stories about eccentric judges, or the consequential narratives these individuals produced, to be celebrated, excoriated or otherwise deconstructed, it is a brave researcher who chooses to devote him or herself to the dry bones of statutory changes to faceless structures such as the jury. Popular culture may imbue juries with drama galore, but this is necessarily fictional, since where reasoning and communication are the duty of (modem era) high court judges, that ofjurors has been discretion and opacity.
Mary Stokes, "R' Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada" (2009) 32:2 Dal LJ 445.