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A Trying Question: The Jury in Nineteenth Century Canada
2009 
by R. Blake Brown, Professor of History, St Mary’s University. Published with the University of Toronto Press, 2009.
The jury has long been a central institution of both the trial process in particular and of the ideology of the common law in general, a body exemplifying the distinctiveness of our legal tradition. In this first book-length study devoted to the history of the jury in Canada, Brown shows that it was also often controversial, and much of what he recounts will perhaps surprise the modern reader. The jury could be used for political ends when the authorities sought to ‘pack’ juries to achieve the verdicts they wanted in high-profile cases. At other times it was seen simply as a nuisance for those required to serve, an unwanted distraction from everyday economic activities. With the growth of professionalism it also came to be seen as an ineffective and amateurish body that ought to be supplanted by men trained to sift through the evidence and come to the right conclusions. This book is a fascinating account of the history of a key legal institution.
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Contents
Contents
Foreword vii
Acknowledgments ix
Abbreviations xi
Maps xii
Introduction 3
Part One: Juror Apathy and Allegations of Jury Packing,
1820s-1848 15
1 Storms, Roads, and Harvest Time: The Jury System and Attitudes
towards Jury Service in Nova Scotia 17
2 The Jury System and Attitudes towards Jury Service in
Upper Canada 43
3 ‘The Bean Box’: Reformers and the Politicization of the Jury System
in Nova Scotia 57
4 Reformers, Rebellion, and the Jury System of Upper Canada 80
Part Two: Responsible Government and the Jury, 1848-1867 99
5 Responsible Government, the Magistrates’ Affair, and the Breakdown
of the Nova Scotia Jury System 101
6 Responsible Government and the 1850 Upper Canada Jury Act 133
Part Three: The Decline of the Jury in Post-Confederation Canada,
1867-1880s 173
7 ‘We Have Now No Fears of Star Chamber Justice’: The Decline of
the Jury in Nova Scotia 175
8 ‘The Day Has Gone By for the Worship of Legal Idols’: The Decline
of the Jury in Ontario 192
Conclusion 216
Notes 225
Index 323
Reviews
A very solid addition to the field of Canadian legal history. This is the first ... study of juries in Canada. It makes excellent use of archival sources and contemporary newspaper accounts....[O]f value not only to those interested in legal history, but also to students of Canadian history more broadly. Jonathan Davidson, Canadian Law Library Review, vol 35, 2010.
A welcome addition to ... Canadian legal history. Michael Boudreau, Journal of the Royal Nova Scotia Historical Society, vol 13, 2010
A detailed and perceptive explanation of the intellectual, geographical and political reasons for the decline of the jury.... A Trying Question should be required reading for anyone interested in the historical administration of justice. Lori Chambers, Ontario History, vol 102, 2010.
Canadian legal historians ... have good reason to be grateful to R. Blake Brown.... A Trying Question will soon be one of the most cited works of legal history in this country, and for good reason. Brown has done an exemplary job of detailing the change in jury structure in the two jurisdictions he examines [Ontario and Nova Scotia].... Brown's primary purpose is to examine the political reasons behind the changes to the jury in both its forms, the trial ... jury, ... and the grand jury, which is no more in Canada ... and which once was a mainstay of both the prosecution process and local governance. Mary Stokes, Dalhousie Law Journal, vol 32, 2009.
Lori Chambers, Acadiensis, Vol 41, 2012, pp. 248-249
