“As Near as May Be Agreeable to the Laws of this Kingdom”: Legal Birthright and Legal Baggage at Chebucto, 1749

“The new governor’s commission gave him power to establish the accepted institutions of civil government: a council, a legislative assembly, courts, and a judiciary. It accorded him the power of the civil executive to defend the colony, exercize the king’s prerogative of mercy, administer public funds, make grants and assurances of lands, and establish fairs and markets. Most significantly, Cornwallis’ commission, tested 6 May 1749, gave authority to the governor “with the advice and consent of our said Council and Assembly or the Major part of them respectively . . .” in Nova Scotia

to make, constitute and ordain Laws, Statutes & Ordinances for the Publick peace, welfare & good government of our said province and of the people and inhabitants thereof and such others as shall resort thereto & for the benefit of us our heirs & Successors, which said Laws, Statutes and Ordinances are not to be repugnant but as near as may be agreeable to the Laws and Statutes of this our Kingdom of Great Britain.

The last clause, as to non-repugnancy and agreeableness to the laws of England, had a long history behind it. And it was a history that included the province of Acadia for three decades before Cornwallis and his colonists arrived at Chebucto. After seven years of essentially military rule following the capture of Port Royal in 1710-under those two rigorous warriors, Samuel Vetch and Francis Nicholson, who took the fort-British Acadia came under the governorship of Col. Richard Philipps in 1717. And there it remained for thirty-two years of increasing neglect and, after the first four years, the continuous absence of the governor.

The Board of Trade was hardly less soporific with respect to the province. In 1719 it finally got around to issuing instructions to Philipps that hinted at the creation of a regular civil government on what was the already accepted pattern for Britain’s colonies, with a legislative assembly to make laws, but directed him in the meantime to follow the 1715 instructions to the Earl of Orkney as governor of Virginia. Clause 62 of the Virginia instructions read:

You are to take Care that no Man’s Life Member freehold or Goods be taken away or harm’d in our said Colony otherwise than by establish’d and known Laws, not repugnant but as near as may be agreeable to the Laws of this Kingdom.

Virtually the same provision had been contained in the January 1682 instructions to Gov. Thomas Lord Culpepper of Virginia.

The non-repugnance and agreeableness clause in colonial enabling instruments originated in the 1632 charter to Lord Baltimore for Maryland, which directed that the laws made by colonial legislative authority were to be “inviolably observed” under penalties,

So, nevertheless, that the Laws aforesaid be consonant to Reason, and be not repugnant or contrary, but (so far as conveniently may be) agreeable to the Laws, Statutes, Customs, and Rights of this Our Kingdom of England.

In this point, so close are the instructions to Cornwallis to the provisions in the 1632 Maryland charter, it is reasonable to suppose that, if the latter was not the immediate parent of the former, it was the remote ancestor.”

Thomas Garden Barnes, “As Near as May Be Agreeable to the Laws of this Kingdom”: Legal Birthright and Legal Baggage at Chebucto, 1749” (1984) 8:3 DLJ 1. https://digitalcommons.schulichlaw.dal.ca/dlj/vol8/iss3/1/