Epitome of the laws of Nova Scotia (Volume 1-4)

“Above 70 years’ legislation has accumulated a mass of provincial enactments (contained in 3 large quarto volumes, down to 1826.) Since 1826, very many acts have passed. Much inconvenience has been felt in referring to them, as it requires intimate acquaintance with their contents, to enable any one to distinguish those directly or virtually repealed, from such as remain in force.

This difficulty has been experienced by professional men as well as others, although the small Index published by Chief Justice Marshall afforded some remedy. The variety of instances in which our Provincial acts and usages have altered the laws of England, and the uncertainty as to what English acts are or are not in force here, suggested to the writer the usefulness of such a work in humble imitation of the Commentaries of Blackstone, retaining such English law as we have adopted, and adding under each head or chapter the substance of provincial enactments that belonged to it.

(Under an impression of an analogous kind, an edition of Blackstone, with notes showing the changes of law in the United States, has been there published).

The author has been favored with a reading of the Commentaries of Mr. Kent on American law, and has found them of much service, in preparing this work. The materials from which he has produced this Epitome were so scattered and disjointed, that few can appreciate the fatigue attending it. He has had his constant view, to give the substance of all the provincial statute laws in the plainest terms, freed from the technical language in which they were written, and to refer page by page and section by section – so that the original act could always be easily found when necessary.

He hopes in 4 or 5 small volumes to comprize the whole body of the provincial statutes on every subject, arranging them in a rational order, and connecting them in every chapter, with such English law as is in force here or necessary to be noticed. This first volume being chiefly statutes, has been less laborious in composition, but more so in revising and preparing for the press, than any other portion of the work.

The writer has to request his readers to bear in mind, that the duties of a laborious profession have not allowed him to dedicate as much time and attention to this undertaking, as its importance deserved. He trusts it will be found useful notwithstanding, and he will publish the remaining volumes as rapidly as they can go through the press, having the manuscript of all nearly finished. He hopes at some future period, if the work in its present state is acceptable to the subscribers, to publish a more valuable and enlarged edition.

He begs leave to return his thanks to the gentleman at the bar, the magistrates – the agents for the work, and to his subscribers in general, for their kind approbation and encouragement; which have stimulated him to preserve in his endeavors, and to several of his friends, for their liberality in the loan of law works required.

The employment and improvement of mind, and the interest he has felt during these three years in this pursuit, are in themselves no small reward for his labor, and if its usefulness will bear any proportion to the exertion bestowed upon it, he will have no cause to regret the occupation of so many solitary hours. Halifax, April 2, 1832.”

“A half hours inspection of a large law library is almost enough to deter any young person from embracing such a profession; and even the nerves of those who have been inured to poring over black letter, and law-French, and, worse than that, law-Latin, will sometimes twitch with involuntary shrinking from the barbarous aspect of these Sibylline leaves. The motley and tasteless jargon, the obsolete dialect, the antiquated questions and rules, the contradictions of early Gothic type, and the moldering dust, that unite in presenting impediments to the enquirer, seem to throw an impenetrable veil over the original features of our jurisprudence.”

“Course recommended to students in Nova Scotia

Part 1

Blackstone’s Commentaries
Selwyn’s Nisi Prius
Phillips on Evidence (A Compendium of the Law of Evidence, Thomas Peake, Josiah Randall)
Tidd’s Practice

Part 2

Newland’s Chancery Practice (1st Volume)
Maddox on Chancery (1st vol. & a few chapters of the 2nd.)
Jones on Bailments
Toller on Executors
Adams on Ejectment
Comyn’s Landlord and Tenant

Part 3

Part 4

Comyn on Contracts
Roberts on Frauds
Holt on Shipping
Leach’s Crown Law
Archbold’s Criminal Pleading and Evidence
Holt’s Law of Libel

Part 5

Brown’s Civil and Admiralty Law

This list includes about 33 volumes. Some of them merit the closest study… I would recommend a 2d and a 3d reading of Blackstone’s Commentaries, at intervals of one or two years, -the first time referring to a law dictionary when necessary, -the second time referring to, and reading the chief acts of the province, as they bear upon the subjects in the Commentaries, -the third time reading the leading cases referred to… The order in which I have placed the books in this list is, such as I should be inclined to recommend generally to our students in Nova Scotia.”

“The seat of government was transferred to Halifax in 1749, where it continued to be administered by a governor, lieutenant governor, and council. The laws, from this period, were chiefly such as were in force in the neighboring English colonies, and a general court and other institutions were copied from theirs. In 1758, his Majesty transmitted instructions directing the Governor to call together the representatives of the people in general assembly, after the manner of the older English settlements. Counties and townships were then erected, to which others have since been added and the freeholders in this province have ever since exercised, without interruption, the right then conferred, of choosing from their own number the persons to whom they were willing to confide the protection of their political interests.”

“The settled parts of the province and those where settlements were attempted, have been further divided into townships, some as large as smaller counties, and many more of smaller dimensions; and it is probable that this mode of division will be extended over the whole surface of the country. as it is a favorite manner of allotment in North America and is very useful as a guide to the arrangement of representation, the local assessments and a variety of other purposes.

As to ecclesiastical divisions, the province is the chief establishment of an episcopate, which bears its name, and includes the whole of ancient Nova Scotia, together with Newfoundland and the Bahamas. It is not yet subdivided into parishes, except in a few instances, though the missions of the clergy are fixed permanently in the different settlements.”

“The sovereignty, as well legislative as executive, over this colony, may be properly considered as residing in the crown from 1713, the date when the province became British, until a constitutional form of government was erected in 1758. His majesty’s instructions to the governors, his proclamations, commissions, and other acts of government, during this period had therefore a legislative authority, and on them our present constitution is grounded, as well as on the general principles of British law and liberty considered the birthright of free people…

The next source of our provincial law is to be sought in those portions of the common law and statute law of England, as have been adopted into our own code by provincial usage, enactment or decision.

The acts of our own general assemblies are a third source of provincial law.

The rules of practice and decisions of our provincial courts, constitute a fourth source of law.

British acts of parliament for the regulation of commerce in the colonies form a fifth source of our colonial law”

“While it seems doubtful whether any English laws (except those in which the colonies are expressly named) have any validity here, until they have been adopted into our local jurisprudence by distinct legislation or general recognition and usage; yet, what are generally esteemed the most valuable portions of British law, have been transplanted in our land — the Habeas corpus — the freedom of the press — the trial by jury — the representative branch of legislature, — the viva voce examination of witnesses; in fine all those branches of public law which have drawn the eulogium of the wisest and the best of men upon the British constitution, we possess. While we are freed from many that have formed the subject of constant objection in the mother country. Thus our law, by dividing the inheritance among all the children of an intestate, and by abolishing most of the unnecessary and artificial distinctions between real and personal property, has relieved us from unjust rules of primogeniture and from much subtlety of legal definition.

The Game Laws, the Tithe system, and much of the expensive and unnecessary variety of courts are unknown among us, and the comparative simplicity of our legal forms, in conveyancing and in law suits, would astonish an English practitioner: while the cheapness of law proceedings in general (though there are some exceptions) would be equally wonderful in his eyes. The Poor laws in Nova Scotia are simple and unproductive of litigation, answering every end of benevolence without burdening the country. Stamp duties are not in existence, and the titles of land have from our earliest settlement been rendered infinitely more secure than in England by a general and simple act of registry. Marriage is not shackled by arbitrary legislation. The penal law is perspicuous and mild, and indeed I may refer to every chapter of the book to shew, that having an opportunity of establishing a Provincial Code with the benefit of the experience and philosophy of older countries, our forefathers have not failed in their duty; but have transmitted to us a system simple and concise, founded on the best principles, they have left little to their successors beyond the duty of preserving, polishing and throwing light upon, the useful result of their labors.”

“Personal liberty has been secured by a multitude of provisions, in the common law and statutes of the mother country, all of which that go to establish the freedom of the people, from magna charta down to the period of colonization in 1749, may be considered in full force in Nova Scotia, and have been constantly recognized as law by the colonial judges… although many British statutes have been reenacted by the Provincial legislature ex abundanti cautela [out of an abundance of caution]; — they have not considered it necessary or judicious to reenact any of those which establish public liberty considering the national faith and royal authority pledged to the first settlers, to have confirmed them in the indisputable possession of that portion of the laws of England. By the great charter it was enacted that no freeman should be imprisoned in an arbitrary manner; and by the petition of right 3 Car. I -and the habeas corpus acts of 16 Car. I, c. 10, and 31 Car. II. c. 2, a speedy and efficacious method of obtaining liberation and redress for any unjust and illegal imprisonment is given. – and by 1 Wm. & M. st. 2. c. 2. it is directed, that excessive bail shall not be demanded where the imprisonment may be legal.

It is considered part of a man’s liberty, that he shall not be compelled to leave his native country, nor be forced to quit his residence in any part of it. It is equally essential to liberty, that he should not be hindered from traveling abroad, whenever his interest or inclinations lead him to do so.”