A legal historian of England should tread lightly when reviewing a monograph that explores issues in Canadian legal history. Caution should be applied regardless of whether one is an admiring neighbour, or a lawyer with some background in American colonial legal history. It is important to concede at the onset that the legal history of Canada, for me, is uncharted territory. The substantive area parsed in the monograph is debt litigation. Though by no means a specialist, let alone a researcher of debt litigation elsewhere, I do have some conversance with scholarship in the area.
These disclaimers aside, an ancillary conundrum exists. Should one, delving blithely into another jurisdiction, view the book from the perspective of what it adds to the discipline of domestic legal history (the book is, after all, published for the Osgoode Society for Canadian Legal History); or should it be viewed as a study of early modern debt litigation, to be compared and contrasted with studies of other places? Of course, these two ambitions need not be mutually exclusive. My own inclination in absorbing the data skillfully presented in this book was to learn what I could about both.
Lest I be accused of creating the conundrum, there is no doubt that Professor Muir also struggled with serving two masters: ‘Canadianists’, and those whose interest in credit arrangements and the litigation engendered by them knows no national boundaries. While the data exhumed is Canadian, the interesting questions posed by the author are comparative. Muir demonstrates that debt litigation in Halifax in the Inferior Court of Common Pleas seems to have taken on a different dimension numerically, and one must grapple with the question of why that should be the case. Why, then, is Halifax different? This is a question that cannot be, and is not, avoided.
Much of the book's interest to the non-specialist researcher lies in the extraordinary litigiousness of Haligonians during this early period in their history (1750–1766), particularly when compared to their English and North American counterparts (pp. 4–5 and Table 1). Likewise notable is that while there is certainly a core of inhabitants who appear quite frequently in the Inferior Court of Common Pleas, the litigious seem always to be with us. A very broad swath of the population (about 1 in 4) makes cameo appearances in this court during the period. It should come as no surprise that the gender of litigants is biased: men appear much more frequently in court than women. But that does not mean that women are absent. Men are parties to litigation even when women, frequently their wives, were actually privy to the underlying transactions that landed a dispute in court. Though cautious, the author seems to believe, and perhaps even demonstrates, that coverture was alive and well in mid-eighteenth century Halifax (p. 29).
It may be easy to document the litigiousness of Haligonians by resort to court records, but it is far more difficult to explain their penchant for the courthouse. The author offers a myriad of explanations, some of which are more satisfying than others, at least to this non-specialist reader. Muir argues that litigants were attracted to the Inferior Court of Common Pleas by what might today be regarded as ‘efficiency considerations’: the law developed to meet the economic circumstances prevalent in Halifax, and legal procedures were developed early on to facilitate dispute settlement. Recourse to the court may have been prompted by a perception, particularly among the wealthier strata of society, that the law was effective in enforcing economic rights. To this the author adds demographic considerations: the population rose quickly in the first years of colonisation, ebbed, and then growth resumed. This produced a transient group of people among whom less formal dispute resolution might not prosper. People did not know and perhaps did not trust their neighbours to perform outside the strict bounds of an agreement.
The above are undoubtedly plausible explanations, but it is not clear that many of the same circumstances did not obtain elsewhere in colonial America, which produced far less litigation. The amateur Americanist like myself is struck by similarities rather than differences between the legal orders. Both societies had courts without professionals. Muir concedes that Halifax judges were largely untrained, as were the lawyers who represented the litigants. During the period, the legal system underwent some change, and may have developed its own peculiarities, but largely it resembled that of Virginia and colonial Massachusetts. Common law writs there were, but not in the variety that was prevalent in England. Actions were largely on the case and in account, the former being prevalent in colonial America as well.
A more compelling explanation offered for the plethora of litigation documented by the author is his sketch of the economic circumstances of the town. Halifax appears to have been the commercial centre of an interwoven economic area that was fairly large, at least by colonial standards. The extent of its economic activity compared to other colonial towns might explain the number and the type of disputes that found their way into court. Those documented by Muir were largely those in which at least one party was a tradesman or a merchant (Table 1.2, p. 7 and Table 2.1, p. 33).
The strength of the volume is not simply the author's consideration of the numbers of litigants. There is far more texture here, even though Muir does not claim this is a book about legal culture (p. 9). Several issues are fundamental to legal historians of any stripe. The first, addressed in chapter 4, concerns why some disputes do not go forward to judgment and seem to be resolved by compromise. Second is the choice of whether to pursue litigation or arbitration (chapter 5). Finally, victory in court, then as now, is not particularly useful if judgements cannot be enforced.
In short, this is an interesting volume that presents an important question for both legal and social and economic historians: how creditors were able to exact payment from recalcitrant debtors.
