“How far English laws are in force here”: Nova Scotia’s first century of reception law jurisprudence
“Thirty years after the Epitome, when the subject had still been up in the air, Murdoch was able to accept “as a rule very generally agreed on, that Acts of the British Parliament passed subsequently to the establishment of our own colony and more especially those enacted since we have had a local representative legislature do not bind us, unless they expressly include the colony in terms.” A better summing-up of Nova Scotia’s first century of reception law jurisprudence could hardly have been given”
“Most scholars of constitutional law are aware that the courts played a significant role, but the nature and extent of that role have been seriously misunderstood. Elizabeth Brown, for example, attributes to the colonial courts the notion that the Commission or Instructions to the governor had introduced those English laws which were necessary and applicable, but such a view formed no part of reception law jurisprudence in the colonial period. The constitutional documents on which it is based do not warrant such a reading, which is anachronistic and falsely inferential and wreaks considerable violence on both text and context. The legislative criteria of agreeableness and non-repugnance articulated in the governor’s Commission did not incorporate a standard “which in practice would be construed as a grant of the laws of England.” The Commission addressed the question not of the extension of English statute law, but of conflicts between prospective colonial legislation and imperial acts potentially in force proprio vigore. As no colonial law enacting an English or British statute could possibly be disagreeable or repugnant thereto, the colonial legislature, once established, might resort to the expedient of copying (adoption through imitation). Whatever else it may have been, the dual legislative standard of agreeableness and non-repugnance did not constitute a de facto extension of English statute law. All that was granted was a law-making body, and a minimum standard for the laws to be enacted by it.
What Brown elsewhere misleadingly calls a “colonial re-enactment by reference statute” — a formulation which perfectly captures the reality of colonial Nova Scotia — was really statutory reception on the Upper Canada model. This is usually referred to in American jurisprudence as a “reception statute.” It might be generically denominated a “statute law declaration act.” Such an Act was passed in North Carolina the very year Halifax was founded, but was disallowed, as were the majority of the few other reception statutes enacted in the Thirteen Colonies before the Revolution. That such Acts were generally post-bellum and observed as the reception date the year 1607, suggests that in pre-Revolutionary America the reception of English law was non-statutory. Clearly, a basis exists for the comparative study of reception law jurisprudence in colonial Nova Scotia and colonial America: “The scholar interested in the history and theory of the doctrine of reception,” admonishes Phillips, “would situate it within the long history of reception disputes in the Thirteen Colonies.”
Cahill, Barry. “How far English laws are in force here: Nova Scotia’s first century of reception law jurisprudence”