An Historical Review of Nova Scotia Legal Literature: a select bibliography

This paper is an amazing resource, like a cheat sheet for Nova Scotian constitutional law. The sources contained within reveal a wealth of knowledge that I think would otherwise be contained within a written constitution. Instead it is buried in a byzantine labyrinth of instructions, commissions, legislation and other sources, a “feature” of “‘constitutional’ monarchy” that certainly works against the people in order to obfuscate, perhaps the main driving force behind a failure to digest the whole of Nova Scotia’s constitution in order to define the essentials within.

“Expressed in simplest terms Nova Scotia law, generally speaking, is an amalgamation of English common law, English statute law and the provincial statutes which evolved following the convening of the first representative government at Halifax on October 2, 1758.

From the capture of Port Royal in 1710 (which by the Treaty of Utrecht in 1713 guaranteed Acadia to the British), to the establishment of an elected assembly 48 years later, law and order were maintained at first by military law and, following the appointment of Richard Philipps as governor at Annapolis Royal, by the issue of royal instructions dated June 19, 1719.

When Halifax was founded in 1749 Governor Cornwallis’ instructions from the Lords of Trade, April 29, 1749, granted him more sweeping powers, with the result that the colonists were governed in large measure by executive acts and royal instructions until the first assembly was called nine years later.”

“In 1829 Thomas Chandler Haliburton, in An historical and statistical account of Nova Scotia, commented on the paucity of material relating to the origin of the laws of the province. “In England there are many books written on the constitution of the Country, but in Nova Scotia, the inquisitive reader, while he finds enacted laws, will search in vain for any work professedly treating the origin of the authority that enacts them.”

Three years later this deficiency was in some considerable measure eliminated when Beamish Murdoch published the first volume of his Epitome of the laws of Nova Scotia, that brilliant commentary on the then existing laws, presenting their substance ‘in the plainest terms, fresh from the technical language in which they were written’. Completed the following year, the Epitome holds a unique position within the province’s legal literature, since no modern counterpart has been produced, nor has any other Canadian province brought forth an equivalent.”

“The statutes of the Province of Nova Scotia have been issued annually since the first session of the House of Assembly in 1758, with the exception of the years 1788 and 1810, when there was no session.”

Primary Sources:

Campbell v. Hall (1774), 1 Cowper 204; 98 E.R. 1045, 1558-1774. All E.R. Rep. 25a.
Decision whereby an act of the Crown could not deny or deprive a conquered colony of its representative institutions once it had been granted or promised an assembly.

Great Britain. Board of Trade to Lords Justices, June 19, 1719. “Commission and set of instructions to Governor Philipps“.
Article 10 ordered Philipps to conform to those instructions originally given to the Governor of Virginia, wherever applicable and until such time as government by council and assembly was called. PAC C.O. 217, v. 32, pp. 417-28.

Great Britain. Laws, Statutes, etc., British North America Act, 1867,30-31 Victoria, ch. 3 (sec. 92).
Sets out the powers designated to the four provinces at Confederation.

Houston, William. “Documents illustrative of the Canadian constitution“, ed. with notes and appendices. Toronto: Carswell, 1891.

Labaree, Leonard W. “Royal instructions to British colonial governors, 1670-1776“. New York: D. Appleton-Century, 1935.

Nova Scotia. Archives. “Selection from the public documents of the Province of Nova Scotia“, ed. by Thomas B. Akins. Halifax: Charles Annand, 1869.
Contains His Majesty’s Commission to His Excellency Governor Cornwallis, pp. 497-505. Also in PAC C.O. 218, v. 2, pp. 212 ff.

A calendar of two letter-books and one commission-book in the possession of the government of Nova Scotia, 1713-1741“, ed. by Archibald M. MacMechan. Halifax: Herald Printing House, 1900. (Nova Scotia Archives II).

Original minutes of His Majesty’s Council at Annapolis Royal, 1720-1739“, ed. by Archibald M. MacMechan. Halifax: McAlpine Publishing Co., 1908. (Nova Scotia Archives III).
Includes resolution of Governor Philipps on April 20, 1721 constituting H.M. Council a court, the first court of judicature administering the English common law within Canada. Also in RG1, v. 22, 1720-1736.

Nova Scotia. House of Assembly. Journals of the House of Assembly, 1758-
The Journals exist in manuscript only previous to 1761, the original held by the Nova Scotia Legislative Library. Before 1765 they were designated Votes of the House of Assembly and were thus indexed by Uniacke in 1789.

Nova Scotia. House of Assembly. Unpassed bills, 1762-1917. Originals. PANS RG5, Series 0.

Uniacke v. Dickson (1848), 2 NSR 287-302.
C.J. Halliburton ruled that English revenue laws are not applicable in Nova Scotia, except in so far as our legislature has seen fit to adopt their provision.

“The extent to which the infant Nova Scotia House of Assembly looked for guidance to the older American colonies in the drafting of legislation is an interesting and debatable subject. There is definite evidence that Massachusetts and Virginia played a role in this regard, notably with the former’s “Act for Preventing Trespasses“.

It is perhaps significant to point out that the Legislative Library has in its collection a number of worn, well thumbed volumes of American colonial statutes, including those of Massachusetts (1714, 1726, 1759, 1788); New Hampshire (1776); New York (1774); Rhode Island (1767); and Virginia (1752, 1769); as well as An abridgment of the laws of His Majesty’s Plantations in force (London, 1704).”

Secondary Sources

Beck, James Murray. The government of Nova Scotia. Toronto: University of Toronto Press, 1957. (Canadian government series).

Blackstone, William. Commentaries on the laws of England. Oxford: Printed at the Clarendon Press, 1765.

Brebner, John Bartlet. The neutral Yankees of Nova Scotia: a marginal colony during the Revolutionary years. New York: Columbia University Press, 1937.
In particular chap. VIII, “Nova Scotia under Halifax rule”.

New England’s outpost: Acadia before the conquest of Canada. New York: Columbia University Press, 1927.

Calnek, W.A. History of the County of Annapolis, ed. and completed by A.W. Savary. Toronto: William Briggs, 1897.

Haliburton, Thomas Chandler. An historical and statistical account of Nova-Scotia in two volumes. Halifax: Joseph Howe, 1829.
Vol. II, chap. 5 gives a description of the courts in the Province and general observations on the laws.

Laskin, Bora. The British tradition in Canadian law. London: Stevens, 1969.

Manning, Helen Taft. British colonial government after the American Revolution, 1782-1820. New Haven: Yale University Press, 1932.
Chap. II: The colonies and their constitutions; chap. V: Colonial assemblies; chap. VI: Colonial courts, with reference to the ignorance of judiciary and lack of books.

Member of Assembly [pseud.]. An essay on the present state of the Province of Nova-Scotia, with some strictures on the measure pursued by Government from its first settlement by the English in the year 1749. London, 1774.
Gives a telling account of conditions in the Province following the founding of Halifax, with particular stress on the form of government and the disposition of certain legislation.

Murdoch, Beamish. A history of Nova-Scotia, or Acadie. Halifax: James Barnes, 1865-67. 3v.

Pownall, Thomas. The administration of the colonies; 4th ed. London: J. Wilkie, 1768.

Sprague, Alan B. Some American influences on the law and the law courts of the Province of Nova Scotia from 1749 to 1853. Submitted for the William Inglis Morse History Prize, 1935-36. Halifax: Dalhousie University, 1936. Typed manuscript.

Stokes, Anthony. A view of the constitution of the British colonies in North America and the West Indies. London: B. White, 1783.

Shirley B. Elliott, “An Historical Review of Nova Scotia Legal Literature: a select bibliography”, Comment, (1984) 8:3 DLJ 197.