The Supreme Court’s Opening Ceremonies, 1754
It was a day of pomp and ceremony designed to impress the citizens of Halifax, a frontier town barely five years old. On October 22, 1754, Jonathan Belcher, a lawyer newly arrived from England, presided over an elaborate ceremony to mark his installation as Nova Scotia’s first chief justice.
Local dignitaries and the colony’s half-dozen lawyers gathered that Monday morning outside the governor’s residence. Belcher, dressed in a scarlet robe with a grey wig spilling over his shoulders (the uniform of Britain’s high court judges), walked beside Governor Charles Lawrence over streets Belcher later noted were “not yet levell’d or paved.” The group proceeded to the Pontac tavern for “an elegant breakfast.” After dining, and after “a gathering of ladies, army officers and merchants tendered congratulations,” the procession reformed. Led by an official bearing a copy of Belcher’s commission for all to see, the group marched to St. Paul’s Church for a service intended to link the power of the court, and of the government, with the authority of the church.
The next stop was the courthouse, then located at the opposite end of the Grand Parade, which had been “very handsomely fitted up” for the occasion. Belcher, seated under a canopy with the governor at his right side, listened as his commission was read. When it was his turn to speak, he offered “a few directions for the guidance of (law) practitioners.” A grand jury was empaneled for the court’s inaugural sitting, and Belcher used his instructions to the jurors to stress respect for the law and the local government. The court’s establishment showed the King’s “Concern for the Rights and Liberties of his Loyal Subjects,” he said, urging the jurors to wield the “Sword of Justice” for the “protection of the innocent, and to the terror of the noxious and guilty.”
Court then adjourned for the day – the grand jury’s review of the ten criminal cases on the docket, and the subsequent trials, began the following week. As a finale to the ceremonies, the chief justice and his entourage reassembled for a parade back to Governor Lawrence’s residence.
For more information, see John Quinpool, First Things in Acadia (Halifax: First Things Publishers, 1936), pp. 239-40; Beamish Murdoch, A History of Nova Scotia, or Acadie (Halifax: James Barnes, 1865), vol. 2, pp. 250-1.
Wigs and Gowns
Those attending a Supreme Court session for the first time may be surprised to discover that the judge and lawyers dress in black gowns for trials and most hearings. The practice appears to date to about 1300, when a limited number of people were granted the right to practice before the English courts – wearing a robe or gown made them instantly recognizable as attorneys. Judges began donning long-hooded robes about the same time and eventually adopted gowns. One story holds that early judges favoured cape-like gowns so they could stay warm while riding on horseback from town to town to hold court.
While styles varied, today’s simple black gown became the standard attire after 1685, when it was first worn as a symbol of mourning for King Charles II. Gowns crossed the Atlantic along with the common law, and the handful of lawyers plying their trade in Nova Scotia when Jonathan Belcher arrived in 1754 wore gowns to ceremonies marking his swearing-in as chief justice. In portraits, Belcher and other early chief justices are decked out in flowing robes of scarlet trimmed in fur, which remains the style for judges of the Supreme Court of Canada. By 1900, Canadian judges and lawyers favoured wearing “tabs” – two strips of white linen – at the neck, a style that has persisted. While lawyers wear only black, a sash of coloured cloth distinguishes the rank of other judges. In Nova Scotia, Supreme Court judges wear a red sash on their gowns. Sashes of Court of Appeal and Provincial Court judges are black, while those of the judges of the Family Court are green – a colour chosen because it signifies life and Family Court judges protect the welfare of children and families.
The horsehair wigs long favoured by judges and lawyers in Britain and many Commonwealth countries originated in the seventeenth century, when it was the fashion for everyone of importance to wear them. Like gowns, they served to distinguish the wearer’s office and command respect. Wigs did not survive efforts to transplant them to the New World, however. Americans rejected them as they did many other trappings of British rule – Thomas Jefferson once complained that “monstrous wigs” made “the English judges look like rats peering through bunches of oakum (strands of rope).”
Nova Scotia’s early judges wore wigs. In official portraits that hang in the Halifax Law Courts, the first chief justice, Jonathan Belcher, and his successors Sir Thomas Andrew Strange and Sampson Salter Blowers all sport billowing wigs that hang to their chests. Jeremy Pemberton, who was chief justice in the late 1780s, Richard Bulkeley, a vice-admiralty judge of the same era, and Sir Alexander Croke, a vice-admiralty judge from 1801-1815, also wore wigs. R.B. Dickey once recalled that judges were still wearing wigs when he began practicing law in Amherst in 1834. Sir Brenton Halliburton, who replaced Blowers in 1833, was the first chief justice to be depicted bare-headed in his portrait, suggesting wigs were out of fashion in this province by the mid-nineteenth century. Judges in Upper Canada appear to have dispensed with wigs even earlier, due to their high cost and the discomfort to the wearer. It was not until 1905 that British Columbia passed a law banning wigs from its courtrooms.
Source: “Gowns,” article by Justice John deP. Wright of the Ontario Court of Justice (General Division).
For much of the Supreme Court’s history, a pair of white gloves served as a symbol of purity and a reflection of civic pride. If there were no criminal cases to be heard when a Supreme Court judge traveling on circuit came to town, the sheriff or other local official would signify the area’s crime-free status by formally presenting the judge with a pair of white gloves.
The practice originated in England, where sittings of the courts on circuit were known as assizes, and was adopted in Nova Scotia and beyond. Historian A.W.H. Eaton, writing in 1910, noted it was the custom for lawyers in Kings County to attend the court’s opening day and to present the visiting judge with a pair of white kid gloves when there were no criminal cases on the docket in Kentville. In neighbouring New Brunswick, the Saint John Daily Sun reported that the judge holding court in the city during the month of November 1888 had been given a pair of white gloves, “indicating that there was no criminal business to come before the court.”
The tradition appears to have survived into the 1970s (and possibly even longer) in some of the smaller centres where the Supreme Court holds sittings. Its demise may be a reflection of the times – as crime became more prevalent, even in rural areas, there were fewer occasions when the court’s docket was crime free.
Sources: A.W.H. Eaton, The History of Kings County (Belleville: Mike, 1972 – reprint of 1910 ed.), p. 231; Saint John Daily Sun, November 21, 1888, p. 2; Retired Chief Justice Lorne Clarke; Justice Jamie Saunders, Nova Scotia Court of Appeal.
Hardships and Hazards: The Early Years of the Supreme Court on Circuit
For its first two decades, the Supreme Court heard cases only in Halifax. But as the colony grew, so did demands for the court to hold trials in the new communities that were springing up in the Annapolis Valley, northern Nova Scotia and along the South Shore. The Supreme Court Circuit Act of 1774 established a circuit system, requiring the court to hold sessions twice a year in Annapolis, Kings and Cumberland counties. The circuit system grew as new areas were settled and when Cape Breton Island was annexed to the mainland in 1820, and by 1851 the court sat in all counties at least once a year.
Until 1834, two Supreme Court judges were required to travel each circuit unless a second judge was unavailable or ill (with the exception of a brief period, 1805-1809, when one-judge circuits were permitted). The province’s early roads were sometimes little more than rough tracks, making travel on horseback or by carriage slow and tedious. Circuits tended to run from May to October, with the winter weather and the spring thaw conspiring to restrict court sittings to Halifax for the rest of the year. Not surprisingly, some judges dreaded traveling on circuit. To Justice Thomas Chandler Haliburton, presiding outside the city was “severe labour.”
The Cape Breton circuit was the toughest – the island had so few roads in the early years that the authorities hired boats to ferry judges to and from court sessions. Justice William Blowers Bliss considered it “in the highest degree arduous and severe” to journey there. In 1825 Brenton Halliburton, who went on to become chief justice, returned from a Cape Breton stint and told a colleague that he wished the island were still a separate colony. The worst circuit horror story, however, belongs to Justice William DesBarres. In June 1854, the small sailboat carrying him across the Bras d’Or Lakes sank, leaving him clinging to the wreckage until help arrived. A Sydney lawyer accompanying him to court drowned in the incident.
Sources: Barry Cahill and Jim Phillips, “The Supreme Court of Nova Scotia: Origins to Confederation,” in Philip Girard, James Muir and Cahill, eds., The Supreme Court of Nova Scotia 1754-2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press, 2004); Dean Jobb, Bluenose Justice: True Tales of Mischief, Mayhem and Murder (Hantsport, N.S.: Lancelot Press, 1996), p. 73.
The Royal Coat of Arms, a symbol of the Nova Scotia Supreme Court, has graced a succession of Halifax courthouses since colonial times. Now displayed above the bench in the Court of Appeal’s sixth-floor courtroom at the Halifax Law Courts, it was almost lost forever during the court’s latest move.
The coat of arms depicts a crowned lion and a unicorn on either side of a shield, which is topped with the royal crown and bears the emblems of the components of the United Kingdom – three lions of England, the harp of Ireland and the Scottish lion. The shield is trimmed with the motto Honi soit qui mal y pense, which means Evil to him who evil thinks. Below the figures and shield is the motto of the sovereign, Dieu et mon droit – God and my right.
When the Supreme Court moved from the Spring Garden Road courthouse – its home since 1860 – to the Law Courts building on the waterfront in 1971, the arms apparently did not follow, at least for a few years. The old courthouse was renovated to house a provincial library and, in the process, the historic coat of arms was relegated to a storage room. Chief Justice Ian MacKeigan and a fellow judge of the court’s Appeal Division, Justice Gordon Cooper, reputedly rescued and refurbished the tattered emblem in the late 1970s or early 1980s, and restored it to its rightful place.
Source: Reminiscences set out in a memo of Justice Ted Flinn, dated April 8, 2001.
Less than forty years after the Supreme Court was established, the authority and credibility of its judges and judgments came under fire in a five-year political and legal struggle that came to be known was “The Judges Affair.”
It began when Chief Justice Bryan Finucane died in office in 1785. The British authorities were slow to name a replacement – Jeremy Pemberton was appointed chief in 1788 but presided over just one term of the court and resigned after 14 months. That left assistant judges Isaac Deschamps and James Brenton to carry the court’s workload. Deschamps, as senior judge, acted an interim chief justice even though he lacked legal training.
The tide of Loyalist refugees from the American colonies in the 1780s brought a number of lawyers to Halifax, men eager to re-establish their practices or fill a vacant judgeship. They viewed the undermanned and under-experienced Supreme Court with a mixture of jealousy, suspicion and contempt. Deschamps and Brenton were attacked as ignorant of the law and accused of bias, particularly for favouring Nova Scotian litigants over Loyalists.
The controversy spilled into the political arena and in November 1787 the House of Assembly voted to investigate the judges’ conduct. The matter was then referred to the governor and his council, but the council’s February 1788 response cleared the judges of charges of partiality and incompetence and labeled the assembly’s allegations “groundless and scandalous.”
The exoneration failed to quell the controversy. Loyalist lawyers Jonathan Sterns and William Taylor outlined their complaints in the press, prompting the judges to disbar both men for contempt of court. In 1790 the assembly conducted a second investigation and voted to impeach Deschamps and Brenton and demanded their dismissal for “high crimes and misdemeanours.” The Privy Council of the British government reviewed the allegations and finally put the matter to rest in 1792, clearing both judges and condemning their detractors. By then an English lawyer, Thomas Andrew Lumisden Strange, had been appointed chief justice, bringing legal expertise and stability to the court. In 1809 the assembly bolstered the court’s credibility by passing a law requiring its judges to have practiced law for at least ten years.
For more information on the Judges’ Affair, see Barry Cahill and Jim Phillips, “The Supreme Court of Nova Scotia: Origins to Confederation,” in Philip Girard, James Muir and Cahill, eds., The Supreme Court of Nova Scotia 1754-2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press, 2004)
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