Academic Avenues

The document, addressed to the Lords Justices, discusses the governance and development of the Province of Placentia and Nova Scotia. It highlights the unique circumstances of the province, noting that it has not been previously settled by British subjects. Consequently, the instructions for Colonel Philips, who is appointed as governor, draw heavily from those provided to the Governor of Virginia. These instructions aim to establish a new settlement, focusing on population growth, promoting the fishery industry, preserving timber for the Royal Navy, and encouraging the production of naval stores like hemp.

Colonel Philips is directed to maintain friendly relations with the Governor of Canada and French subjects, while also keeping a vigilant eye on French activities in neighboring territories. Additionally, there is emphasis on fostering goodwill with the indigenous Mi’kmaq people, including proposing intermarriages between British subjects and Mi’kmaq individuals to strengthen ties.

The instructions touch upon various aspects of governance, including encouraging settlement, regulating land grants, promoting the fishery industry, and ensuring the welfare of soldiers stationed in the region. There’s also a focus on transitioning inhabitants from Newfoundland to Nova Scotia for the colony’s development.

Overall, the instructions aim to establish a viable governance structure, promote economic growth, and secure British interests in the region amidst competition from other European powers.

“255. Council of Trade and Plantations to the Lords Justices. Enclose following. Continue: The Province [of Placentia and Nova Scotia] not being hitherto peopled or settled by H.M. subjects, we did not think it necessary, that either the Commission or Instructions for Col. Philips should be so extensive, as those for H.M. other Governors, in America etc. But for Col. Philips better Government, in addition to these Instructions, we have thought it necessary, that he should have with him, a copy of H.M. Instructions to His Governor of Virginia, which may be of use to him so far as they shall be applicable to cases that may happen and are not sufficiently provided for by these instructions, till H.M. further pleasure shall be known.

Your Excellencies will perceive that the Instructions we have prepared for Col. Philips, are entirely calculated for the laying out and making a new settlement, wherein we have made the best provision we are able to propose at present for the peopling of the country, for promoting the fishery, for the preservation of the timber fit for ye Royal Navy and for encouraging the productn. of Naval Stores, more particularly of hemp, which is very much wanted in H.M. Dominions. There is a clause in the said Instructions whereby the Govr. is directed to live in perfect friendship and good correspondence with the Governor of Canada and all officers and other subjects of his Most Christian Majesty in those parts, and to avoid as far as in him lies all occasions of dispute or contention with them. But at the same time, considering how formidable the French already are there, and how much reason there is to be jealous of their new settlements and extent of territory on the back of the British Plantations from ye Gulph and River of St. Lawrence down by the Lakes and the River Missisipi to the Bay of Mexico, we have prepared an Instruction directing Col. Philips to keep a watchful eye upon them, and to transmit from time to time the best accounts he can get of their proceedings. And as we are convinced from all the accounts that we have received from America, that nothing has so much contributed to strengthen the hands of the French in those parts, as the friendship they maintain, and the intermarriages they make with the [Mi’kmaq] we have not only prepared a clause in his said Instructions, requiring him to give all civil and friendly treatment to the [indigenous] Nations or clans within his Governmt., but have likewise taken the liberty to propose an Instruction for encouraging of intermarriages between H.M. subjects and the said [Mi’kmaq] , which we hope may have a very good effect there, and can occasion but a small expence to H.M. We were the rather induced to offer this Instruction because of ye weak condition Nova Scotia is in at present, being only inhabited by French planters, who have hitherto refused to take the oaths to H.M. and by the [Mi’kmaq] , who are very much influenced by the French Missionaries; to which may be added that this Province lies between the two French settlements of Cape Breton and Canada, where they are very strong and numerous, and daily encroaching upon H.M. territories in those parts. We think it highly necessary that a reservation should be made of certain tracts of land in proper places to be set apart for the production and preservation of timber for the use of the Royal Navy, and as we have proposed in the said Instructions, that the Govr. shall make no grants, till the country shall have been survey’d; we humbly offer that the Surveyor General of the Woods on the Continent of America have directions forthwith to repair to Nova Scotia, and mark out such parts thereof as are proper to be reserved for this purpose agreeable to the said Instruction. We have likewise prepared and herewith lay before your Excellencies another draught of Instructions for Col. Philips, which relate only to ye observance of the several Laws of Trade and Navigation, and are in the usual form etc. Repeat proposal for a ship to attend the Province etc.; “for in our humble opinion it will be impossible for Col. Philips either to protect the trade and fishery of H.M. subjects there, or to put the greatest part of his Instructions in execution, without such an assistance.” Annexed.

255. i. Draught of H.M. Commission to Richard Philips to be Governor of Placentia and Cap. General and Governor in Chief of Nova Scotia or Accadie. To appoint a Council not exceeding the number of 12, levy forces, grant lands under a moderate quit-rent, and “do execute and perform all and every such further act and acts as shall or may tend or conduce to the security of our said Province, and the good people thereof and to the honour of our Crown,” etc.

255. ii. Draught of H.M. Instructions to Governor Philips.

1-8. Usual Instructions as to Councillors.

(ix). And the better to enable H.M. to compleat what may be further wanting towards the establishing a civil Governmt. in the said Province, you are to give unto H.M. by one of his principal Secretaries of State, and to the Commissioners for Trade and Plantations, by the first opportunity after your arrival there, a true state of the said Province, particlarly with respect to the number and qualifications of the people that either are there, or hereafter shall resort thither, of what number it may be proper to constitute an Assembly? What persons are proper and fit to be judges, justices or sherrifs? and any other matter or thing, that may be of use to H.M. in the establishing a civil Government as aforesaid.

(x) In the meantime till such a Governmt. shall have been established you will receive herewith a copy of the Instructions given to the Governor of Virginia, by which you will conduct yourself, till H.M. further pleasure shall be known, as near as the circumstance of the place will admit, in such things as they can be applicable to, and where you are not otherwise directed by these Instructions. But you are not to take upon you to enact any laws till H.M. shall have appointed an Assembly and given you directions for your proceedings therein.

(xi) Whereas we are informed that the inhabitants of Nova Scotia (except those of the Garrison of Annapolis Royal) are most if not all of them French, who never took the oaths of fidelity and allegiance to H.M., or to the late Queen; notwithstanding such their undutiful behaviour, you are immediately upon your arrival there, to invite them in the most friendly manner by Proclamation and otherways, as you shall think fit to submit to your Government and swear allegiance to H.M., within the space of four months from the date of such your Proclamation, upon which condition, they shall enjoy the free exercise of their religion, and be protected in all their civil and religious rights and liberties so long as they shall behave themselves as becomes good subjects.

(xii) You shall take care to give notice to H.M. by one of his principal Secretaries of State and to the Comrs. for Trade and Plantations of the effect of this Proclamation and expect H.M. further orders thereupon for your conduct towards such of the sd. French inhabitants as shall not have comply’d therewith by the time therein prefix’d. But in the mean while, you are to observe that the sd. French inhabitants of Nova Scotia have long since lapsed the time, granted them by the Treaty of Utrecht, for removing their effects from thence to any part of the French Dominions in America; and therefore if any of the said French inhabitants should notwithstanding the encouragement given them to become good subjects to H.M. resolve to remove out of your Governmt. you are to take particular care as far as in you lies, that they do no damage, before such their removal to their respective houses and plantations, and that they be not permitted to carry off their effects with them.

(xii) And as it is not reasonable that such of the French inhabitants as shall neglect or refuse to take ye oaths of allegiance aforesaid, within ye time prefix’d, should enjoy ye same liberties and advantages with the rest of H.M. subjects in Nova Scotia, you are hereby directed, to debar them from fishing on the coast, till H.M. further pleasure be known concerning them.

(xiv) You are to send to H.M. by one of his principal Secretarys of State, and to the Comrs. for Trade and Plantations an accot. of the number of the said French inhabitants remaining in that Province; Where their settlements are? Whether they live in townships, or are scatter’d at distances from each other? What trade they carry on, either with the [Mi’kmaq] or otherwise? And how they employ themselves for the subsistance of their families? What number of ships they have? How they are employ’d? To what markets they carry the fish they catch? And what goods or commodities they bring back (and from what places) in return for their said fish? Also the like accounts with respect to such of H.M. natural born subjects, as are already setled in the said Province.

(xv) You shall after your arrival there propose to the Governor of Canada to appoint one or more Commissaries in behalf of ye French, to be joined with such as you shall appoint on H.M. part to view the limits between H.M. territories and those of France bordering on Nova Scotia pursuant to the Articles of the Treaty of Utrecht and to such further Instructions as you shall receive from hence for that purpose; and you shall send a full account of your proceedings herein to one of H.M. principal Secs. of State to be laid before H.M. and to the Comrs. for Trade and Plantations as aforesaid, with your opinion upon the whole.

(xvi) You shall live in good correspondence with the said Govr. and all other officers and subjects of the most Christian King, taking particular care that no violence be offer’d to them, whereby an occasion might be given to interrupt the friendship and good correspondence between the two Crowns, which more particularly in the present juncture. is so necessary for their mutual advantage, and in case the subjects of France should make any depredations upon those of H.M. or do them any other injury, you shall not make reprizals without further order from H.M., but you shall in an amicable manner demand redress of the Govr. of Canada, or such other officer as it may concern; But if it should so happen that he persist in justifying what such subjects of France may have done, and that either thro’ his obstinacy or the dubiousness of the case, you shall not be able to adjust the difference between yourselves, in a friendly manner, you shall represent the same to one of H.M. principal Secretaries of State, and to the Commissionrs. for Trade and Plantations to be laid before H.M., acquainting the said Govr. or other officer in the first place with your intention so to do, and offering to impart to him your represn. of the case if he will, in like manner communicate to you what he writes to the French Court upon that subject.

(xvii) You are notwithstanding to keep as strict a watch as possible upon the proceedings of the French at Cape Breton and in Canada and particularly you are to send to H.M. by one of his Secretaries of State and to the Commrs. for Trade and Plantations frequent accounts of their number, strength and situation—what commerce. they carry on—and what progress they have made in their settlement on the back of the British Plantations, especially with regard to the communication they are said to have opened from the Gulph and River of St. Lawrence to the Lakes of Ontario and Erie, and from thence down the River Missisipi to the Bay of Mexico.

(xviii) You shall to the utmost of your power encourage the growth and production of timber, masts, tar, hemp and other Naval Stores, in the Province of Nova Scotia, and you are to enquire, what trees there are in the said Province fit for masts for the use of the Royal Navy and in what parts of the country they grow at what distance they are from any rivers whereby they may be the more commodiously brought down, in order to be shipt for this Kingdom.

(xix) And you are in a particular manner to signify H.M. express will and pleasure to all the inhabitants that now are or hereafter shall come to settle there, and to take care yourself, that no trees fit for masts for the future, of the diameter of 24 inches and upwards at 12 inches from the ground be cut without H.M. particular licence.

(xx) You are to endeavour to get a survey made of the said Province of Nova Scotia as soon as conveniently may be; and in the mean time you are to send to H.M. by one of his principal Secretaries of State, and to the Commrs. for Trade and Plantations the best description of that country you are able to get, with relation to its extent and situation, with respect to ye neighbouring French of Canada and Cape Breton.

(xxi) You are also to send the most particular account you can of ye nature of the soil. What swamps there are in it? and whether those swamps do produce mast trees, or by drayning may not be made fit for raising of hemp? What other products the country is capable of? and how the same may best be improved for the advantage of this Kingdom? and what trade may be carried on with the [Mi’kmaq] for furrs and otherwise? What navigable rivers there are in ye said Province and what others fall into them?

(xxii) And whereas we have judged it highly necessary for H.M. service that you should cultivate and maintain a strict friendship and good correspondence with the [indigenous] Nations inhabiting within the precincts of your Governmt. that they may be reduced by degrees not only to be good neighbours to H.M. subjects. but likewise themselves become good subjects to H.M., we do therefore direct you upon your arrival in Nova Scotia to send for the several heads of the said [indigenous] Nations or clans, and promise them friendship and protection on H.M. part. You will likewise bestow on them, as your diseretion shall direct, such presents as you shall carry from hence in H.M. name for their use.

(xxiii) And as further mark of H.M. good will to the said [indigenous] Nations; you shall give all possible incouragement to intermarriages between H.M. British subjects and them for which purpose you are to declare in H.M. name, that H.M. will bestow on every white man being one of His subjects, who shall marry an [indigenous] woman, native and inhabitant of Nova Scotia, a free gift of the sum of £10 sterl. and 50 acres of land, free of quit rent for ye space of 20 years, and the like on any white woman being H.M. subject who shall marry an [indigenous] man, native and inhabitant of Nova Scotia, as aforesaid.

(xxiv) And whereas it will be of advantage to H.M. service and highly beneficial to the trade of Great Britain, that the said Province of Nova Scotia be peopled and settled as soon as conveniently may be; as an incouragemt. to all H.M. good subjects, that shall be disposed to settle themselves and their families there; you are hereby directed to make grants of such lands in fee simple as are not already disposed of by H.M., to any person that shall apply to you for the same; reserving nevertheless to H.M., his heirs and successors an annual rent of one shilling, or of three pound of hemp, clean, bright and water-rotted for every fifty acres so granted, at the election of the grantee; the said rent to commence three years after the making the grant, and not before; you are to take especial care, that there be a clause inserted in all ye said grants, declaring, that if any grantee shall refuse or neglect to pay the abovementioned rent for the space of three years, after ye same shall become due, his patent shall henceforth be null and void to all intents and purposes whatsoever,

(xxv) But as great inconveniencies have arisen from suffering one single Proprietor to possess too large tracts of land in H.M. Plantations. It is H.M. express will and pleasure, that for the better settling and peopling ye Collony under your Government, that you do not, upon any pretence whatsoever, grant unto any one person above the number of 500 acres; It being H.M. intention that no person whatsoever either in his own name or any others in trust for him, do hold any more than 500 acres as aforesaid until H.M. further pleasure shall be known thereupon. And in all such grants of land as you shall hereafter make; you are to have particular regard to the profitable and unprofitable acres, that is to say, that no man shall have his whole grant run lengthways upon the banks of a river, but that a due proportion of what shall be granted to him do run from ye river upwards into the country.

(xxvi) And whereas it is and hath been a common practice in H.M. Plantations in America for persons to take out patents for sundry tracts of land without being in any condition to cultivate the same; you are hereby directed to cause a clause to be inserted in every grant of land by you to be made, as aforesaid; whereby the said grant shall become void and null to all intents and purposes, if the grantee or his assigns do not cultivate, inclose, plant or improve at least one tenth part of the lands granted within the space of three year, to be accounted from the date of ye patent, and so progressively one other tenth part within the space of every other subsequent three years, until the whole tract of land contained in the said patent shall be cultivated, inclosed, planted or improved.

(xxvii) And that H.M. may at all times be exactly informed of the state of the Province, particularly with respect to the lands that shall be granted; you are to cause a book to be fairly kept wherein shall be registred all ye grants made by you specifying the names of the grantees, the number of acres granted, with their scituation and boundaries and the quit rents thereon reserv’d together with ye dates of each respective grant. And you are to transmit to H.M. by one of his principal Secretaries of State and to his Commissrs. for Trade and Plantations, transcripts of such registers at least once a year.

(xxviii) But as it is H.M. pleasure that certain tracts of land which shall be found upon a survey, to be most proper for producing of masts and other timber for the use of the Royal Navy, lying contiguous to the sea coast or navigable rivers, be reserved for H.M. service; you are not to grant any lands till such tracts shall have been marked out and set apart for H.M. use, not amounting to less than 200,000 acres in the whole, in which you shall strictly forbid all the inhabitants of Nova Scotia, or others that may come there, to cut any trees of any dimensions whatsoever, upon pain of H.M. highest displeasure and of the utmost penalties the Laws can inflict.

(xxix) It being H.M. intention to give all possible incouragement to the trade of all His subjects; you are to use your best endeavors that the fishery on the coast of Nova Scotia be encouraged and protected; and in order thereunto you shall not allow any settlements to be made on the coast, but what shall be at 200 yards distance from the sea or harbour, that there may be sufficient room left for beaches, flakes, stages, cook-rooms, and other necessary conveniencies between the said settlement and the sea, for any of H.M. subjects that shall come to catch and cure fish there, who are not to be impeded, molested or disturbed in their curing their fish, upon any pretence of grants or settlements upon the coast. Nor shall any of the planters and inhabitants demand any sum or sums of money or other acknowledgement from the fishermen for the liberty of curing upon the coast, unless they provide stages and cook-rooms with a shore man to each stage, and the usual necessaries for such fishing ships, as is done at Marblehead in New Engld. And in such case they shall ask no more than 12d. in New England money for every quintal.

(xxx) And to render the commerce of H.M. subjects in Nova Scotia, more commodious and practicable, you are to take especial care in all such grants of land as you shall make, pursuant to your Commission and these Instructions, that a continued space of land on the banks of all creeks and rivers, of the breadth of one hundred yards, be reserved free and common to all passengers and publick uses whatsoever.

(xxxi) Whereas there have been great complaints that H.M. soldiers in garrison at Annapolis have been very ill treated with regard to their clothing and provisions, and in several other respects; you shall make particular enquiry into any abuses of this kind that may have been heretofore, and transmit an account thereof to H.M. Secretary at War; and you shall take care that no occasion be given hereafter for complaints of this nature.

(xxxii) And whereas the settlements which have been made by H.M. subjects in Newfoundland have by experience been found prejudicial on many accounts to the trade of Great Britain, and it being apparently more for H.M. service and the intrest of his Dominions, to establish a British Colony in Nova Scotia sufficient to support its self against any attempts of other European nations and of the neighbouring [Mi’kmaq] ; you shall use all proper methods for inducing the present inhabitants of Newfoundland to remove to Nova Scotia as well for the better settlement and strengthening of that Colony as for improving the Fishery in those parts.

(xxxiii) And in order thereunto, you are hereby impowered to grant 100 acres of land to each family that shall transplant themselves from Newfoundland and settle under your Governmt. under the abovementioned Instructions for improvemt. of the said land to be held at a pepper corn rent for the first 20 years, from H.M., his heirs and successors, but to be afterwards subject to the same quit rents as shall be payable according to the preceding Instructions etc.

(xxxiv) The Officers of H.M. Ordnance having in pursuance to ye directions given in that behalf, appointed the making of a redoubt and other works at Placentia, which are judged sufficient for securing the fishery of H.M. subjects there, you shall give all the protection and assistance you are able to ye persons employ’d in raising the said fortifications. And when they shall be finished, you shall with the first convenient opportunity remove the garrison from thence to Annapolis Royal, leaving only such a number of men there, not exceeding 50, with proper officers as you shall judge sufficient for the defending of those works.

(xxxv) You shall strictly enjoin both the present and future garrison of Placentia and all H.M. Officers and soldiers, and other persons whatsoever belonging thereto, not to concern themselves in the fishery there nor interrupt the fishermen in ye curing of the fish nor to take up for themselves any beaches, stages or cook-rooms upon any pretence whatsoever, upon pain of H.M. highest displeasure. [C.O. 218, 1. pp. 417–448.]”

‘America and West Indies: June 1719, 16-30’, in Calendar of State Papers Colonial, America and West Indies: Volume 31, 1719-1720, ed. Cecil Headlam (London, 1933), pp. 123-146. British History Online [accessed 30 December 2020]. https://www.british-history.ac.uk/cal-state-papers/colonial/america-west-indies/vol31/pp123-146

“That for the reasons aforesaid His Excellency the Governor and Members of his Majesty’s Council for this Province hold and keep a Court of Judicature for said Province annually at the respective times and place here mentioned, viz: at Annapolis royal upon the first Tuesday in May, August, November, and February yearly and in every year from time to time. Which Court to have the same Style and Cognizance of all matters and pleas brought before them and power to give Judgment and award. Execution thereupon, by the same manner and proceedings as the General Court so called of Governor and Council has in Virginia, and practices at this time. Voted that his Excellency be desired to put out a proclamation relating to the time, and place where the aforesaid Court be held and the manner of the Court, and that as soon as may be.”

Governor Phillips reported his action to the Secretary of State, and in the course of this communication he observed: “In order to establish civil government the Governor and Council have resolved themselves into a Court, to meet four times a year. The notion that martial law prevails here hinders settlers from coming into the country.”

The present writer has shown elsewhere the extent to which, from the time of Governor Phillips to the time when Governor Cornwallis received his commission and entered upon the discharge of his duties, “the Iawes of Virginia” were applied, and were made “the rule and pattern” for the Government of Nova Scotia. The court established by Governor Phillips and his Council was invested with the powers ordinarily exercised by an English common law court. It had jurisdiction in both civil and criminal matters, and a perusal of the original Minutes of His Majesty’s Council at Annapolis Royal will disclose the varied character of the causes which came before our first court for adjudication. It was a common law court; that is to say, it administered the common law that collection of principles which constitutes the basis of the administration of justice in England, as distinguished from the maxims of the Roman code generally known as the civil law. One of its greatest expositors says of it:

“It is emphatically the custom of the realm of England, and has no authority beyond her own territory and the colonies which she has planted in various parts of the world. It is no small proof of its excellence, however, that where it has once taken root it has never been superseded …… The common law is the lex non scripta, that is, the unwritten law which cannot now be traced back to any positive text, but is composed of customs and usages and maxims deriving their authority from immemorial practice, and the recognition of courts of justice.”

Chisholm, J.M. “Our First Common Law Court” Dalhousie Review, Volume 01, Number 1, 1921 https://dalspace.library.dal.ca/bitstream/handle/10222/58007/dalrev_vol1_iss1_pp17_24.pdf