We have taken into Our Consideration your Letter to us dated the 8th of December last, inclosing the Proposals of the Chief Justice for convening an Assembly in Nova Scotia, and although We are fully sensible of the numberless Difficulties which will arise in carrying this or any other plan for an Assembly into Execution in the present state of the province and that many of the Inconveniences pointed out in your Letter must necessarily attend it, yet We cannot but be of Opinion, that the want of a proper authority in the Governor and Council to enact such Laws as must be absolutely necessary in the Administration of Civil Government, is an Inconvenience and Evil still greater than all these; and altho’ His Majesty’s subjects may have hitherto acquiesced in and submitted to the Ordinances of the Governor and Council, yet we can by no means think, that that or any other reason can justify the continuance of the Exercise of an illegal authority; what you say with regard to the Council of Virginia’s passing laws in the first Infancy of that Colony is very true; but then they derived the Power of doing it from their Commission, which was also the case of many other of the Colonies at their first settlement, tho’ it was a Power of very short Duration, and in later times since the Constitution of this Country has been restored to its true principles has never been thought advisable to be executed.
Whether the measure proposed by the Chief Justice is or is not a proper one depends upon a precise knowledge of a variety of Facts which we at this distance cannot be competent Judges of; but whether that or any other plan is followed it will only be a temporary Plan and in no degree a precedent for future Assemblys when the circumstances of the Province will admit of other Regulations.
The first Assembly Convened be it in what form it will, must necessarily consist of Persons of Property in Trade, because there is no Person who can be truly said to have any considerable landed Interest, until the Country is cleared and the Lands laid out, yet it may be proper and it will be necessary to take care, that a certain landed property, be it ever so small, be the Qualification as well of the Electors as the Elected, because the Commission directs that the Assembly shall be chosen by the majority of the Freeholders.
The Election of twelve Persons or of any greater or lesser number to represent the whole Province considered as one County, may be a proper method as far as appears to us, but this must be left to your Discretion, who, by being upon the spot will be better able to determine upon this point, perhaps a Division of the Province into Districts or Townships may be the more eligible method, for altho’ Halifax is at present the only Town in which there are any Inhabitants qualified to be Electors or Elected, yet as it is not proposed that actual Residence should be required in order to qualify a Person to act in either one or other of the Capacitys, the making a few Grants of Land in any of the Districts, as Minas, Chignecto, Piziquid, Cobequid &c. will remove this difficulty, and if this can be done, the first Assembly will bear the nearer Resemblance to the form, in which it must be convened when the Province becomes better peopled and settled.
This however We only throw out for your Consideration and desire it may be understood, that this point is left to your discretion under the Powers given you by your Commission.
This being settled, The next Consideration will be the form of the Writ of Summons, the manner of executing it and the previous points to be settled before the Assembly proceeds upon Business, so far as regards the Election of a Speaker and the Rules to be observed with respect to Dissolutions, Prorogations and Adjournments: as to all which Points, We must refer you to the inclosed Copy of the form of a Writ made use of in the Province of New Hampshire, which appears to us (regard being had to the different circumstances of the two Provinces) the best adapted to the purpose, and to the inclosed Copies of the Instructions lately given to the Governor of Georgia and to the members of the Council of that Province, showing the manner in which these Instructions were carried into execution.
There is one part of the Chief Justices proposal however which we can by no means approve of, and which must be particularly guarded against, and that is the continuance of the first Assembly for 3 years which, might be and probably would be attended with great inconveniences, for, altho’ We have no doubt but that the first Assembly will be constituted of proper Persons and Persons well disposed to promote the Public Service, yet it may happen either from some Defect in the first formation of the Assembly or from their irregular and improper Proceedings, that the Governor may find it necessary for the good of the service to dissolve them and as it would be highly improper that his hands should, in such case be tied up, We thought it necessary to say thus much upon this Point, as it appears to us of great consequence.
Another inconvenience necessary to be guarded against is long Sessions, which will not only be attended with Expence, but will also, in the present situation of affairs greatly obstruct and hinder you in the necessary attention which you must give to other important matters; and therefore you will take care, that the Sessions be as short as possible and the meetings at such times as shall be most convenient as well to the members as to yourself.
These are all the Points which occur to us at present upon this important question, and it only remains for us to desire that you will take the earliest opportunity after the first Session of the Assembly to acquaint us in the fullest and most particular manner of all the steps you have taken in this matter, of the effect and operation of this measure with regard to the Public Service, pointing out to us at the same time the Conveniences and Inconveniences of it, how far the Plan on which you proceeded is defective, the cause of those Defects, and in what manner you would propose to have them remedyed to the end that we may lay the whole matter before His Majesty and the Plan for future Assemblys- ascertained by proper Instructions to you.
Kennedy, William P. Statutes, Treaties and Documents of the Canadian Constitution: 1713-1929. Oxford Univ. Pr., 1930. https://www.canadiana.ca/view/oocihm.9_03428