Out of the territory east of the Penobscot and south of the St. Lawrence were carved the three Maritime Provinces of Nova Scotia, New Brunswick and Prince Edward Island. The French called the district Acadie, and the Scottish King of England, in his grant to Sir William Alexander in 1621. Nova Scotia. The Isle of St. Jean (now Prince Edward Island) was granted a separate government in 1769, but was not renamed until 1799 after the visit of Prince Edward. The Loyalists on the river St. John, exasperated by delays in the issue of land patents and by apparent neglect, demanded and got separation from Nova Scotia in 1784 and in the name of the new province the House of Brunswick was honoured.1 In 1784 the island of Cape Breton was granted a separate government, but was reannexed to Nova Scotia in 1820.
The Settlers
To the character and traditions of the early settlers must be traced the nature of the struggle for self-government and the character of the institutions. At the outset physical features naturally determine the localities of settlement. The sheltered slip between the mainland and the peninsula offered the best haven. Here the French entered and settled at Port Royal and on the St. Croix. Later they spread to Cape Breton fortifying Louisbourg. Along the shores, in the bays and up the creeks and rivers of the eastern coast of these provinces the tide of population moved, at first impelled by the love of adventure and the prospects of hunting, later by political necessities.
The second inflow of settlers came from New England in search of cod and commerce. Convenient stations they found in the harbors of Chebucto and Canso and in those of the Bay of Fundy. Later on the arrival of Cornwallis and the prospects of trade attracted large numbers to Halifax. And in 1759 the proclamation of Goovernor Lawrence brought from Massacussetts and Rhode Island an excellent band of settlers to take up the fertile lands from which the Acadians had been driven.
The fear of French aggression impelled New England to attack and capture Louisbourg in 1745. When Britain returned it to France in 1748, there was but one thing to do — to build a stronger fortress between the French in Cape Breton and the people of New England. Accordingly Lord Cornwallis was sent out to Nova Scotia to establish a fortress and a colony. In 1749 he landed in Halifax with a following of 1,176 settlers and their families. Here he built fortifications and from here he ruled the province.
From the first it was recognized that a garrison without a colony could not hold the French in check. Inducements were accordingly offered to immigrants from England, Germany, Scotland and New England. The colonists, particularly those from New England, soon clashed with the garrison. When political necessities made the colonist almost indispensable, as was the case after the expulsion of the Acadians, liberal promises of land and of self-government were made. But with the coming of security from the enemy, the merchants and farmers found the rule of the Governor-in-Council at Halifax irksome.
The relation of Halifax to the province, it may be remarked, has always been peculiar. At the first it was a garrison in a hostile colony, later when the New Englanders began to settle in the west and the Scotsmen in the east. Halifax remained a military station and a trading-post. In war times its garrison made it a safe harbour for captured vessels and a profitable place for the sale of supplies. In times of peace, apart from fishing, trade languished. Before the opening of the railways the position of Halifax tended to isolate it from the rest of the province.
Situated on a bay about the middle of the Atlantic Seaboard, remote from the old capital, Annapolis, in the west, and from the fishing station at Canso in the east; separated from the fertile valleys to the north by a rough ridge of granite boulders and a surprising number of small lakes and ponds, Halifax was forced to look across the ocean for its trade and its people. The conservatism of the old ward settled upon its military government and long resisted the reforms of the new. The struggle for self-government was more prolonged and bitter, and the victory more fragmentary than elsewhere. St. John is a striking contrast. Situated at the mouth of a magnificent river, which drains three-fifths of the province and with its broad and deep tributaries provides an unrivaled waterway through the length and much of the breadth of the country, St John could not fail to grow with the prosperity of the province and through its commercial interests keep in the closest touch with its agricultural and industrial life. Although Fredericton was the political capital, St. John from the first dominated the province, and its reforms became those of the province.
The American revolution profoundly affected Nova Scotia. The struggle between the ruling and military element from the old England on the one hand and the commercial and colonizing element from New England on the other had resulted in the grant of a Legislative Assembly and some minor reforms. The reforming party however suffered severely when the Revolution broke out by the departure from Nova Scotia of several of the most ardent friends of reform and by the suspicion of disloyalty which fastened upon those who remained. At the close of the war the arrival of the Loyalists immediately brought about the division of Nova Scotia into two provinces and local government for the City of St John; but in the end it strengthened the conservative forces already at work.
Ideas
Feudal ideas imported from France played little part in the municipal life of Nova Scotia. The compromise of deputies for the French and justices of the peace for the English during the period of discordant rule seems to have left no perceptible trace in the forms of local government. The formative ideas were those brought over by Cornwallis and those introduced by the New Englanders, and in the case of New Brunswick, by the Loyalists. Those of Cornwallis and the Loyalists had a common origin. The practices of the Loyalists had but suffered a sea-change. They grew out of the adaptation of English ideas and practices to the problems of government in the southern colonies of America, Virginia, and New York. As for the New Englanders, they advocated the principles of the chartered government of the Massachusetts Bay. In each of the types – the Virginian and Massachusetts – the powers granted to the governing body of the colony came direct from the Crown and not from the Parliament at Westminster; and in each case these powers were granted to a council or company which had the right to choose its subordinate officers.
The fortunes of the two companies, however, were different. The Massachusetts company migrated to the new land. The election of the assistants to the Governor by the freemen of the company became the election of the representatives for the government of the community. The interests of company and colony merged. The Virginian Council ruled from London through local councils. The interests of the council and the colonist diverged; which state of affairs led the Crown to intervene and take over the council’s rights. The Crown governed through a deputy or governor who called to his assistance a small number of men as councillors but theoretically did not necessarily follow their advice m all things. Together they made and administered laws and also acted as a court of justice. This was the system Comwallis introduced into Nova Scotia. But the fishermen and the traders from Cape Cod who preceded Comwallis, and the settlers from Massachusetts and Rhode Island who accepted Lawrence s invitation to occupy the lands vacated by the Acadians were strongly imbued with the ideas of Massachusetts They became the advocates of self-government.
The Loyalists of New Brunswick seem to have kept before them the provincial system of New York. Their first Governor Thomas Carleton, was the brother of Sir Guy, for a time Commander of the British forces in New York; and their first Provincial Secretary, Rev. Jonathan Odell, was a New Yorker and former private secretary of Sir Guy. The fidelity with which New York was imitated is seen in the resemblance between the city charters of New York and St. John, and between the charters of the College of New York and the College of New Brunswick In a letter to the Secretary of State Governor Carleton makes special reference to New York.’ The prominence of New Englanders in Nova Scotia and the predominance of the Loyalists in New Brunswick will perhaps account for certain differences in the two provinces.
The Loyalists landed at Parrtown in 1783; New Brunswick was separated from Nova Scotia in 1784; St. John was granted a charter in 1785 ; and a representative Assembly was summoned in 1786 to be elected on practically a manhood suffrage Comwallis landed at Halifax in 1749. With great reluctance Lawrence summoned an Assembly in 1758, and Halifax, though petitioning in 1765 and 1790, was denied a charter until 1841 Apparently New Brunswick was dominated by the most democratic ideas and Nova Scotia by the reverse; and yet Governor Carleton claimed that ” New Brunswick had improved upon the constitution of Nova Scotia where everything originated, according to a custom of New England, with the Assembly. But here, where a great proportion of the people have emigrated from New York and the provinces to the southward, it was thought most prudent to take an early advantage of their better habits and by strengthening the executive powers of the Government discountenance its leaning so much on the popular part of the Constitution.”
It is possible that Governor Carleton thought that the Loyalists could be trusted to govern themselves, and since they outnumbered all others ten to one. there was little danger of their liberty becoming license. He accordingly granted a charter tn St. John but reserved to the Crown the right of appointing the chief executive officers, the mayor, sheriff, recorder and clerk. ” He was,” however, ” rapped over the knuckles ” for it by the Secretary of State.
Things were different in Nova Scotia. The ruling class was in a minority. Governor Lawrence wrote of the members elected to the first assembly in 1758 that “he hopes he shall not find in any of the representatives a disposition to embarrass or obstruct His Majesty’s service or to dispute the Royal prerogative,” though “too many of those chosen are such as have not been the most remarkable for promoting unity or obedience to H.M. government here, or indeed that have the most natural attachments to the provinces.” Yet in Nova Scotia greater opportunity was given to the people to express their opinion through the Grand Juries. The township and county officials were all appointed by the sessions from the nominees of the grand juries. The grand juries could by presentments censure public officials and ask for public work. In certain cases the justices of the sessions could not act except upon the presentment of the grand jury. Further town meetings were regularly held until 1879, though for a time after 1770, when suspicion was rife, they were suppressed.’ These and similar provisions are rot found in New Brunswick. In only two Acts (and those were in the first ten years) was the grand jury required to make a presentment before the Court could act. One had regard to the altering of a road, the other to the prevention of thistles. The privilege of nominating officials seems not to have been enjoyed by the grand juries of New Brunswick.
French and English
Feudalism in Acadia, as in old Canada, was a mild copy of that of old France. The Governor was all-powerful and the seigniors were feeble and few. Governor Philipps, writing to the Duke of Newcastle in 1730, said, ” Here are three or four insignificant families who pretend to the right of seigniories, that extend almost over all the inhabited parts of the Country.'” In 1703 the King of France confirmed grants of seigniories at Cape Sable, Port Royal and Mines.’ Mention is also made of seigniories at Cobequid and Chignecto. The rights of the seigniors in Nova Scotia became little more than claims for rents which, under English rule, were transferred to the Crown.
From the capture of Port Royal in 1710 the mainland of Nova Scotia was subject to the English. Protests and resistance on the part of the French, however, made government extremely difficult and finally led to the expulsion of the Acadians. Finally the second capture of Louisbourg in 1758 left the English the undis- puted masters of the peninsula and the island. Prior to the founding of Halifax in 1749 there were two British garrisons — one to overawe the Acadians around Annapolis and the other at Canso to protect the New England fishermen. The seat of the govern- ment was at Annapolis, near the French settlements at old Port Royal (now Annapolis), Cobequid and Chignecto. The Governor’s task was by no means an easy one. The willingness of the Acadians to comply with his demands varied inversely with their distance from the cannon of the fort, and the collection of rents and the settlement of disputes about land were the causes of perennial trouble.
The French were governed through elected deputies. Each community was required once a year, early in October, to select a number of deputies from the ” ancientest and most consider- able in lands and possessions.” The community about Annapolis was required to select twelve, the other communities at least four or five each. If the business on hand was very important a large number might be demanded. The Governor might refuse to accept the deputies, if they were not of the oldest and richest in the community.’ After receiving the Governor’s instructions the deputies were required both to publish them and to assist in carrying them out. Mascarene summed up their duties as follows :
- Deputies having fixed times for meeting and consultation should act together in the execution of the orders, etc.. of the
Government in the interests of justice and of the good of the community. - They should ” in their meetings make joint reply to the letters of the Government addressed to them in common and propose measures for the common good.”
- They should watch and keep in hand restless spirits who could turn the habitans from their duty and lead them contrary
to their oath of allegiance. They were expected to restrain the Indians. - They were to enforce the regulations for keeping up the fences and to prevent the trespass of unruly cattle.
- They were to concert measures for the improvement and upkeep of bridges and highways. They were to assign to each
habitant what according to custom he must contribute in material, labour, carriage or payment. - They were to keep an account of the mills, those erected by the seigniors and those erected ” without leave since the King has been in possession of the seigniory.” and the dues that should be paid so that ” the King may get his rights.”
- They were to arbitrate in land disputes, but appeal to the Governor-in-Council was permitted. They were to redress
wrong and recover stolen property.
In short the deputies were practically mediators, with little real power but great opportunity to facilitate or clog the work of administration. In only one instance is there evidence of the appointment of an Acadian to be a justice of the peace.” Prudent Robicheau was the honoured name. A Prudent Robicheau, once before, had been rejected by tlie Governor as a deputy because of lack either of ancientness or possessions.’
The independent fishermen of Canso were not disposed to brool< much interference from the Governor Their local affairs were managed by justices of the peace (and it is worth noting) ” with a committee of the people of Canso.” These justices seem at least to have been acceptable to the people. On one occasion the Governor sent three commissions for justices of the peace in blank, which the other justices and probably the committee were to fill in.* On another occasion there was a vigorous protest against Captain Aldridge. who seems to have been anxious to introduce something not far remote from military rule.* The Governor reproved him.
The system of deputies (or rather hostages) for the French and justices of the peace for the English was a rather happy compromise. It was lacking in power to coerce, but it provided good machinery for informing the people of the Governor’s instructions and the Governor of the people’s wants.
Government by Courts of Sessions
In 1749 Governor Cornwallis in accordance with his instructions erected three courts of justice, ” The first was a Court of General Sessions similar in its nature and conformable in its practice to the Courts of the same name in England.” “The second was a County Court having jurisdiction over the whole province (then a single county) and held by those persons who were in the Commission of the Peace at Halifax.”‘ ” The third was a General Court. This was a Court of Assize and general jail delivery in which the Governor and Council, for the time being, sat as judges.”‘ In 1754 a Supreme Court with a chief justice specially appointed for judicial work took the place of the General Court. These three courts were primarily courts of law, and yet one, the Court of Sessions, discharged important administrative functions, and another, the highest, was primarily not a court of law but an administrative body. To understand the Court of Sessions and its diverse duties one should turn to its history in England.
Unusual as is today the merging of judicial and administrative functions, it was not novel to Nova Scotians one hundred and fifty years ago. When Halifax was founded, the Governor-in-Council was a legislative, administrative and judicial body in one. Although it was relieved of its judicial functions in 1754 the chief justice still remained a member of the Council, became a governor, and exercised administrative powers until driven out of the Council in 1838 by Howe. The Council claimed the sole right to legislate until the chief justice questioned the legality of its acts and caused the Secretary of State to direct the Governor to summon an Assembly. Still the Council continued to discharge executive and legislative duties until separation was forced in 1838. And it was not until 1848 that Howe completed his great task and made the Executive Council dependent upon the will of the majority of the Assembly.
In the courts of general sessions, it may be explained, the sheriff as appointee of the Crown was the executive officer ; the justices were the guardians of the peace, also appointed by the Crown; and the grand jury was the people speaking through a select few. From the earliest times these courts were administrative as well as judicial bodies. Obviously the transition is easy from inquiries into how the King’s peace was observed to inquiries as to measures to secure its better observance, e.g.. the establishment of court-houses, jails, etc., bridges for the improvement of the King’s highway and the like.
In 1749 Cornwallis appointed four justices of the peace for Halifax. In addition to these there were those who by virtue of their office were conservators of the peace. At one time the captains of the ships in the harbour were justices of the peace for Halifax. Ordinarily those justices were appointed by special mandate of the Governor. According to English practice they must be residents of the county. Their number seems to have been unlimited, and they held office during the pleasure of the .Crown, In the days of Howe’s battles the larger counties had forty or fifty and when the Municipalities Bill became law some counties were credited with between one and two hundred. The general sessions of the peace were usually not well attended except by a few who took an active interest, but on occasions when some matter of widespread interest, such as the granting of liquor licenses or some questions of political moment were up, the attendance was large and the meetings frequently tumultuous.
The grand juries were composed of residents of at least three months standing having freehold in the county of the clear yearly value of $10 or personalty of $100. The sheriff was required each year to prepare a list of those qualified to serve. Their names were to be written on similar pieces of paper and put in a box. At a stated time the names of those to be summoned to serve were to be drawn out of the box. This method prevented jury-packing, and if it did not secure for the people the spokesmen whom they might have chosen it prevented the sheriff from stopping the questions of the people by summoning subservient tools.
The sheriff was appointed by the Crown each year. Previous to 1778 there was one provost Marshall for the province of Nova Scotia. Thereafter a sheriff was appointed for each county with the usual powers of Sheriffs in England. The chief justice or presiding justice selected three names, one of which was the retiring sheriff (unless a majority of the justices of the peace protested) and the Governor-In_Council must select one of these Sheriff for the year. In New Brunswick the provost Marshall disappeared about 1790, and the appointment of Sheriffs does not seem to have been hedged about with restrictions.
Local Divisions
There is considerable diversity in the three provinces with respect to municipal divisions. In all three the county divisions are the most important. New Brunswick was divided into counties, and the counties were subdivided into parishes, first by letters patent and later by Act of Parliament. In Nova Scotia the townships and settlements were the first to appear; and later out of or about these the counties were constructed. Nova Scotia also recognized other units such as “Divisions” and “Districts.” Prince Edward Island was divided into “Counties,” Parishes,” “Lots,” and three towns with royalties and commons attached.
Nova Scotia.- The “Division” in Nova Scotia was merely a circuit for the Court of Common Pleas reconstructed in 1824. The province, excluding Halifax and Cape Breton, was divided into three divisions.
In 1749 there was but one county. When the question of representation in the Assembly came up, the township as well as the county was considered worthy of representation. In 1833 Murdoch wrote: “Some of the counties are divided into Districts to facilitate the local business of the county, giving each district a set of public officers nearly equivalent to those of a separate county,” e.g., a court of general sessions of the peace.” “In Halifax county there are three districts-Halifax proper, Colchester, Pictou, each of which has every arrangement for the administration of justice, the registry of deeds, etc., as if it were a separate county wanting only the name and a county representative in the Assembly.” “Each district,” says Haliburton, “is or should be furnished with a court house, but the jail belongs to the county. The sheriff’s authority is commensurate with the county and the commissions of the peace extend throughout the same. The localities of the juries both in real and personal have also a reference to the county; and the election of representatives is in no way affected by this local arrangement of districts.”
“The settled parts of the province,” wrote Murdoch in 1833, “and those where settlements are attempted have been further divided into Townships, some as large as the 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 favourite manner of allotment in North America, and it is very useful as a guide to the arrangement of the representation, the local assessment and a variety of other purposes.” Haliburton stated in 1829 that a “township contains no certain definite quantity of lands nor assumes any prescribed shape as in Upper Canada where it is generally under- stood to extend nine miles in front and twelve miles in the rear; nor is it endowed with all those various corporate powers which the townships of New England possess, beyond the election of a representative; which privilege is not enjoyed by all. The inhabitants have no other power than holding an annual meeting for the purpose of voting money for the support of their poor.” Governor Lawrence in his proclamation of 1758 declared that “townships are to consist of 100,000 acres.” This seems to have been the usual size for those in the valley and on the Atlantic coast. On the other hand, the three townships of Pictou county contain over 200,000 acres each. Governor Lawrence also declared that every township containing fifty families would be entitled to send one representative to the Assembly. At the first Assembly it was proposed to restrict the qualification to twenty-five voters, but the Home Government insisted on fifty. Since Lawrence’s proclamation was addressed to New Englanders it is probable that their views about townships were adopted. In 1829 the province contained 10 counties (5) counties being subdivided into 12 districts) and 50 townships.
Murdoch’s expectation that the “townships” division would extend over the whole province has not been realized. Today they are important only as marks of land grants. The decline of the “township” began with the Electoral Act of 1847. Previous to this, simultaneous elections had been impossible because of the difficulty of polling the entire vote of a township or settlement in one day. To meet this difficulty the counties were divided into electoral districts or polling sections. Where townships existed this Act respected their boundaries in the setting off of the electoral districts. When no townships were recognized the electoral district provided a useful unit. In time the polling section became the constituency of a county councillor, and a poor division. In 1843 and 1844 two large and unwieldy townships in Pictou county were subdivided for poor purposes. In 1855 an Act provided for the incorporation of townships. No advantage was taken of its permission. When the right of sending a representative to the Assembly was taken from the townships in 1857 or 1858 the township lost the last shred of political importance. Henceforth it was but a name known to those who were interested in land titles.
New Brunswick.-Before New Brunswick was erected into a separate province the county of Sunbury and the township of Sackville were granted representation (1767) in the Assembly of Nova Scotia. The boundaries of the parishes or tow is of what afterwards became the county of Westmorland were defined by the boundaries of the lands granted by Nova Scotia.
By letters patent in 1785 Governor Carleton set off the boun- daries of the counties of St. John, Westmorland, Charlotte, Northumberland, Kings, Queens, York and Sunbury; and for the better administration of justice subdivided them into towns or parishes. The Legislature confirmed this division in 1786.
The plan was simple. The whole province was divided into eight counties. The settled portions were Sunbury on the St. John, Westmorland west of Nova Scotia, and St. John, the landing-place of the Loyalists (1783). The new counties were set off and Sunbury was the residue. Some of the boundaries were defined with reference to townships, e.g., St. John began from Hopewell township, York from Maugerville, Queens from Burton. The counties again were divided into ” towns or parishes.” The term “parish” rapidly supplanted that of township.” The “township” may be traced to Massachusetts, the “parish” to New York and Virginia. In England the parish was of course originally an ecclesiastical division, the township a civil.
The blending of the ecclesiastical and the civil appears as late as 1790 in New Brunswick. Governor Carleton in a letter (dated Aug. 20th, 1790) to the Secretary of State says of the provision made for education and religion: “There are now six ministers of the Church of England, having salaries from the Society for the Propagation of the Gospel, in addition to £100 allotted to each by an annual grant of Parliament, the glebe lands still being unproductive. The province has been divided into eight counties with thirty-nine parishes, all of which, how- ever, do not require a permanent minister at present.”
It is worth noting that in New Brunswick the county is sub- divided, and that in Nova Scotia the county is apparently a group of townships or settlements, as Mr. McEvoy states to be the case in Ontario. This difference had important consequences. It gave the township an independence in the public mind not possessed by a mere subdivision of the county (the parish). This is seen in the town meetings which were a feature of the Nova Scotia townships and electoral divisions down to 1879, although temporarily suppressed in 1770, as already remarked, through fear of revolution. This feature survived in the charters granted to such towns as Dartmouth (1873), Pictou (1873), New Glasgow (1875), which required an annual meeting of the ratepayers to receive the reports of the town’s officials and to authorize expenditures. In 1905 again, for example, Dartmouth held a town meeting to consider the increase of water supply and other matters. There were parish or town meetings in New Brunswick, particularly in the eastern portion, but they seem to have been due partly to the Nova Scotia example and partly to the movement for responsible government which secured an Act (in 1850) giving parishes or towns the privilege of electing their officials. This privilege seems not to have been generally taken advantage of, for pro- vision is made for appointment by the justices should there be no election; and in 1854 the consolidation of the statutes makes no mention of election.
The care of its own poor was the first, the primary and, as Haliburton said in 1829, practically the only duty of the parish or township; yet it is worth noting that the early schools in New Brunswick were parish schools and that the trustees were parish officials. The Superintendent of Education in 1904 recommended a return to the larger unit for school purposes, and suggested the parish as a suitable unit.
Prince Edward Island.-The Island was divided into 67 lots, usually containing about 20,000 acres each. These were grouped into three counties and in each county a town site with royalty and common was laid out for a capital. “The intention was that the man who held a lot in the town should be allowed a lot in the royalty for pasturing purposes. The common was situated between the town and the royalty and was for pasture purposes in common.” The counties were sub-divided into 14 districts or parishes. The “parish lines are but little recognized.” “These local divisions became practically useless and are seldom mentioned now except in legal proceedings connected with old land titles.” With the exception of the capital city, Charlottetown, there is but one other municipality, the town of Summerside. Local affairs are thus-doubt- less on account of the smallness of the island province-in the hands of the provincial Legislature and its local officials.
Appointment of Local Officials
Nova Scotia.-In Nova Scotia various methods of appointing local officials have been followed at different times. Before the establishment of courts of sessions the Governor-in-Council stared the privilege with the town meeting. Upon the institution of the courts the appointment of the great majority of the officials was delegated to them, in some cases without restriction, in others subject to the nomination of the grand juries. In a few instances the grand juries appointed, subject to the ratification of the justices. Of the five methods: (1) the Governor-in-Council, (2) popular election, (3) the court of sessions, (4) the sessions upon nomination of the grand jury, (5) the grand jury subject to the ratification of the justices, the mast common was the appointment by the sessions on the nomination of the grand jury. The Governor-in-Council appointed the sheriff, coroners, justices of the peace, commissioners of sewers and dykes, gaugers (from 1761 to 1769), commissioners for schools in each county and district (from 1828).
In January, 1751, the Governor-in-Council ordered that the “town and suburbs of Halifax be divided into eight wards and the inhabitants be empowered annually to choose the following officers for managing such prudential affairs of the town as shall be committed to their care by the Governor-in-Council, viz., eight town overseers, one town clerk, sixteen constables, eight scavengers.” In 1763 the town meeting (which was held twice a year) chose the assessors of the poor rate. This practice was also authorized by an Act passed in 1851. The assessors appointed the collectors of the poor rate, which, wrote Murdoch in 1833. “is the only regular fund managed by the township authorities without the intervention of the sessions and grand juries of the county.” From 1859 to 1878 the town meeting could choose the collectors.
In 1762 the grand juries in sessions were empowered to appoint annually cullers and surveyors of dry fish, surveyors of lumber, and surveyors of cordwood; and three years later the appointment of the county treasurer, subject to certain restrictions, was placed in their hands. The usual method of appointment by the sessions required the juries to nominate. At first twice as many candidates as there were offices were to be nominated; but later (1811) the number was to be as many as the justices in sessions might direct,” as the numbers before limited by law were found insufficient.” Apparently the juries by nominating impossible candidates could force the justices to appoint those whom they desired.
The officials appointed by the justices on the nomination of the grand juries, as given by Murdoch’ in 1832, with the dates of the Acts giving the power were as follows: In 1765 surveyors of lines and boundaries of townships and overseers of the poor (“both offices united in the same persons “), a town clerk, constables, surveyors of highways, fence viewers, clerks of market, poundkeepers, cullers and surveyors of fish, surveyors of lumber, sealers of leather, gaugers of casks, hogreaves (1792), measurers of grain, salt, coals, inspectors of lime and bricks, inspectors and repackers of beef (1794), surveyors and weighers of hay (1777), inspectors of flour and meal (1796), inspectors of red and smoked herrings (1798), inspectors and weighers of beef (1829), inspectors of thistles (1791), and inspectors of butter in Cumberland county (1802). The local trustees of schools were, according to the Act of 1828, appointed by the commissioners of schools who were nominees of the Governor-in-Council.
After Howe became prime minister an Act was passed in 1850 dividing Halifax into townships, and giving each township the right to elect a warden and four councillors who were to have all the powers “now exercised by the justices of the peace”; and empowering the ratepayers at the annual meeting to elect all township officers whether “now appointed by the sessions, town meetings or others as considered necessary.” This Act was per- missive and seems never to have been put into effect. A similar Act (1856), intended for the other counties, was put into effect in but one county, Yarmouth, and then only for three years.
The method of appointment by the justices on nomination by the grand juries continued until incorporation was made compulsory for all counties and districts in 1879.
New Brunswick.-Governor Carleton and the Assembly from the first decided to give the people, either directly or indirectly through the grand juries, as little power as possible in the appointment of local officials. In the draft of the Highways Bill submitted to the House in 1786 provision was made for the nomination of road surveyors or commissioners of the highways by the grand juries. This provision was struck out before the bill became law. New Brunswick was to “improve upon the constitution of Nova Scotia.”
The justices of the peace were empowered to appoint, at the first sessions of the court each year, “out of every town or parish in the said county three overseers of the poor, a clerk of the town or parish, a clerk of the market, a sealer of leather, three assessors, two or more constables, two or more fence viewers, a sufficient number of poundkeepers, cullers and surveyors of fish, surveyors of lumber and cordwood, gaugers of casks, hogreaves, surveyors and weighers of hay, surveyors and examiners of any staple commodity and (in 1805) parish school trustees.
In addition the Governor-in-Council appointed a great many officials, e.g., commissioners of sewers (1786), supervisors of great roads (1822), commissioners for the almshouse in Fredericton (1822) and Northumberland (1828), grammar school trustees (1829), firewards in Fredericton (1824), Newcastle and Chatham (1828), St. Stephen (1833), boards of health (1833), marine hospital trustees (1822), commissioners to collect dues for disabled seamen (1826), commissioners for the provincial House of Correction (1841), also for the asylum for the insane.
In 1850 the parishes were granted the privilege of electing the town or parish officials hitherto appointed by the sessions, except the treasurer, auditors, trustees of schools, overseers of fisheries, inspectors of fish, wharfingers, port warden, harbour master, pilots and firewards, who were to be appointed as before by the sessions. In the following year the same privilege was granted to parishes organized as municipalities. But failing election, appointment was to be made by the sessions or the council. When the statutes were consolidated in 1854 this privilege of election was withdrawn from the parishes. Probably little use had been made of it. It is possible that this introduction of the township idea was suggested by what Howe had done in Nova Scotia. It is well to remember that it was in 1848 that Nova Scotians gained responsible government.
Prince Edward Island.-As Bourinot remarks, “no system of local government ever existed in the counties and parishes as in other parts of America. The Legislature has been always a municipal council for the whole island.” In 1833 the representatives of Charlottetown in the Legislature were instructed to summon the inhabitants to vote money for local purposes and to appoint assessors and collectors. The following year the inhabitants of each school district were required to choose five trustees.
The Powers and Municipal Labours of the Sessions
Nova Scotia.–In the exercise of their administrative functions the justices of the peace appointed officials, ordered assessments and controlled expenditures, controlled certain licenses such as those for the sale of liquor, and made regulations about a variety of subjects. The list of subjects is similar to that given below for New Brunswick. In New Brunswick the justices in sessions were less restricted in the exercise of their powers by the grand juries than were their fellow justices in Nova Scotia.
In 1877 the committee appointed to revise the statutes prepared a draft summarizing the powers of the courts of sessions. But apparently after the draft had been printed and submitted to the Legislature it was decided to make the Municipalities Act compulsory and to abolish the courts of session. In that draft these courts were (1) given power to appoint and define the duties of the parish officials; (2) given charge of jails, lockups, workhouses or almshouses (unless entrusted to special commissioners) and village police; (3) required to prevent vice, dis- orders and disorderly driving, Sabbath profanation, nuisances, noises; (4) required to regulate the sale of liquor, circuses, exhibitions; (5) required to make regulations concerning trespass by domestic animals, the marking of cattle, pounds, dog tax, destruction of mad dogs, noxious weeds, fires, bush burning, trucks, depositing of ballast, markets, measuring and inspecting such commodities as bread, salt, coal, hay, iron, lumber; (6) required to have charge of ferries, streets, public wharves, bridges, booms, timber driving, commons, marshes, school reserves, river banks. At an earlier date they had had charge of inland fishing (1799), grazing on the commons (1814). parish schools (1823), lunatics (1824), the prevention of infectious diseases (1799).
The care of the poor was a parish charge and was in the hands of overseers appointed by the sessions.
The sessions assessed upon the presentment of the grand jury of the county setting forth the sums required for (1) the expenses of criminal justice, such as the building and maintenance of county court houses, jails, stocks, pillories, pounds, conveyance and support of prisoners, salaries of clerk of the peace and jailor; (2) the support of the or; (3) the building and repairing of bridges and other public works authorized by parliament; (4) the expenses for preventing fires. “The sessions apportion the sum presented fixing on each township and settlement the portion they think it should bear” (1765). It also appointed two collectors and three assessors for each township on the nomination of the grand juries (1777). The moneys collected were handed to the treasurer, who was chosen by the grand jury, and approved by the justices in sessions, to whom also the treasurer accounted quarterly (1813), and to whom appeals lay from the assessors.
Other sources of revenue were from rents from public buildings, fines and forfeitures, license fees from hawkers and pedlars (1782) and liquor sellers (1787). The liquor license fees were collected by a clerk of licenses appointed in Halifax by the Governor, elsewhere by the justices of the peace, who selected one of three candidates nominated by tire grand jury. Three-fifths of the license fees (liquor and hawkers) in Halifax went to the commissioner of streets; two-fifths to the police department. When money was to be borrowed permission had to be received from the Legislature.
The various officers were accountable to the sessions for the moneys entrusted to them. The grand juries had the right to inspect the accounts and to make a presentment upon the administration of the justices or their officials. The way in which the latter discharged their duties in Halifax was exposed in a painful manner by Howe in 1835.
New Brunswick.-The sources of revenue and the administration of it were similar to those of Nova Scotia. Apparently (though the evidence is not clear) the grand juries in the early days were not so influential in New Brunswick as in the sister province. In 1833 the justices in session were required to cause accounts of public moneys to be laid before the grand jury, and the grand jury was empowered to “make such presentment thereupon as they see fit.” In 850 stress was laid upon the recommendation of the grand jury for buildings and contingencies as a necessary condition to an assessment by the sessions. Further, the accounts of the county and parishes were to be laid before the grand jury, when the town or parish officers were to be appointed. Also at the time of the election of town or parish officers, the overseers of the poor, collectors of rates, and commissioners of highways were required to lay their accounts before the ratepayers for examination. The growing influence of the grand jury and the open examination of accounts were due to the demand for representative government.
It is worthy of note that today in Nova Scotia and New Brunswick each poor district or parish must bear the cost of the maintenance of the poor who have “settlement” within it. Every other charge, even the support of the insane poor at the provincial hospital, is a county charge. The sole exception in New Brunswick is the charge of opening up a new road.
Reform
In 1835 Joseph Howe published in the Nova Scotian a number of letters attacking the Halifax County Sessions, for which he was arrested on a charge of criminal libel; he was, however, finally acquitted in triumph in spite of the charge of the judge to the contrary. The repeated declarations of successive grand juries and the chorus of popular approval that greeted him seem to warrant one in believing that Howe’s severe arraignment was justified. He charged’ them with unfair assessment, mismanagement of public accounts, “miserable but costly corruptions of the Bridewell (Prison) and Poorhouse,” inefficient and dilatory administration of justice, all of which were supported by quotations from reports of grand juries and of a special committee appointed by the Governor-in-Council.
In its report published shortly before Howe’s trial, the grand jury stated that “but £36 of the whole assessment of the year had been collected and that from persons much less able to pay than many who stand in the list of defaulters.” Howe gave examples of the effect of the failure of the sessions to collect rates in the county outside of the city and from a large number of favoured or careless ratepayers. Although the city contained 14,439 people as compared with 10,437 in the county, from 1825 to 1835 not one shilling had been received from the county outside the city. Apart from the large amount of uncollected taxes, the management of funds collected was careless and irregular. Instead of paying into the treasury, collectors of taxes were permitted to pay to other persons, who appropriated the funds to suit their own convenience, causing much hardship to civic officials and creditors. “The credit of the county is absolutely so bad that an advance of forty or fifty per cent. is. required in all purchases made on account.” The grand jury returned the county treasurer’s accounts as being incomprehensible, not so much from fault of the treasurer as from the con- fused manner in which public accounts were kept. Examples of the inefficiency of the police, of the unequal administration of justice and of the indifference of the magistrates were cited. Although the law required all magistrates to attend general and quarter sessions under penalty of removal from office, “from the record of five years it appeared that not more than three justices had usually attended the general sessions of the peace in Halifax, frequently but two and sometimes only one.” The grand jury, which in effect was the organ of the people, Howe declared had been frustrated in its attempts to detect and remove abuses. Sometimes the magistrates refused it access to public documents and at other times ignored its recommendations. Finally the grand jury refused to assess, and thus brought matters to a head.
It should be said in fairness to other courts of sessions that there is little doubt that Halifax stood alone in its bad preeminence. Yet enough remains to show that the system had many serious defects. It was not, however, unacceptable elsewhere. For nearly thirty years a permissive Act for municipal incorporation held open a door of escape for the several counties in Nova Scotia and New Brunswick. In Nova Scotia one county only took advantage of it and that for but a brief period.
Government by Elective Councils
Nova Scotia.-Responsible government for the province logically implied self-government in the municipalities. In Nova Scotia, since 1763, the township had the right to meet and vote money for the support of the poor and to elect the assessors required to get this money. This right the townships, or settlements as they were sometimes called, continued to enjoy until 1879.
It was natural for Howe to begin at home with his municipal reform. Halifax city had been given the right to govern itself in 1841. Halifax county, however, was still governed by the court of sessions when the victory for responsible government brought Howe into power. Whatever the cause, whether it was Howe’s New England ancestry, or the prominence of the township in western Nova Scotia, or the difficulty of combining the very diverse and widely separated sections of Halifax into one county, Howe adopted the township as the unit of municipal government in the Act of 1850. This Act provided for the appointment of commissioners to divide Halifax county into townships, each township to elect a warden and four councillors, who were to assume all the powers and duties of justices of the peace for the county. But little or nothing seems to have resulted from this Act.
In 1855 there was passed an elaborate Act providing machinery for municipal government in the four counties of Yarmouth, Annapolis, Kings and Queens, the four counties in which New England influence was strongest. The following year this restriction was removed and all other counties and a number of districts, such as the French districts of Clare and Argyle, the Scottish St. Mary’s and the pre-loyalist Barrington were given an opportunity, should they wish to transfer the government of the locality from the quarter session to elective councils.
In the same year another Act providing for the self-government of townships was passed. A reeve and four councillors were to be elected by the township, and the reeves in the county were to form the county council. The township councils were to exercise the power of county councils with reference to roads, the poor, prevention of vice and assessment, with the following exceptions. The expenditure of the government grants for roads, the erection of bridges, the control of liquor licenses, the regulation of ferries, wharves, markets and fairs were with- held from them. The annual town meeting was expressly provided for.
Both the County and the Township Acts were permissive and remained in force until the compulsory Act was passed in 1879. Yarmouth was the only county to apply for the privileges of the Act. But after three years’ trial, in 1858, it petitioned for the old order of local government; yet Yarmouth has always been noted for its sympathy with New England ideas.
The towns were more anxious to secure the privilege of self-government, more particularly the privilege of assessing for local purposes and of borrowing money. Each town sought incorporation by a special Act. Pictou and Dartmouth in 1873.
Municipal Organizations
Rural municipalities, towns and cities are incorporated under different Acts. The Municipalities Act applies to counties and, in the case of Nova Scotia, to districts as well, i.e., to divisions (never more than two) of a county. The Towns Incorporation Act of Nova Scotia provides for towns whether previously or subsequently incorporated: in New Brunswick the Towns Incorporation Act applies only to the towns incorporated subsequent to the passing of the Act. Each city has a special charter.
In Nova Scotia six of the eighteen counties are divided into two districts, making altogether twenty-four rural municipalities. These are again divided into polling districts, each of which is entitled according to population to at least one representative in the council. Only in one instance has a polling district as many as three representatives. The qualifications of municipal councillors and of voters are the same as those required of members and voters for the House of Assembly, except that since 1887 the franchise has been given to unmarried women, assessed for $150 realty or $300 personalty.
The elections are held on the same day throughout the province. Councillors previously sat for one year; but since 1892 their term is three years. Like the provincial Assembly the council chooses its presiding officer (the warden) at the first session after election, grants an indemnity ($2 a day and 5 cents a mile) to its members and an additional sum ($50) to the warden. It has power to assess for enumerated purposes, chief among which are the support of the poor, prevention of disease, administration of justice, court house and jail, protection from fires, bounties for certain wild animals, ferries and markets, roads and bridges (not exceeding $1,000 unless with the approval of the Governor-in-Council). Districts within a municipality may petition for the privilege of assessing for specified purpose: and be rated accordingly. Loans for current purposes are limited to $2,000 subject to the approval of the Governor-in-Council. A contingent fund of $500 is permitted. All by-laws are, however, subject to the approval of the Governor-in-Council.
The Towns Incorporation Act of Nova Scotia was passed in 1888, revised in 1895, and embodied in the consolidation of 1900. It requires a majority vote of the ratepayers of the town in favour of incorporation before such incorporation can be granted by the Governor-in-Council. A further condition was subsequently added. There must be at least 700 persons dwelling within an area of five hundred acres of land.
A mayor and six councillors are to be chosen at the first election by the entire town. The council has power to divide the town into wards and assign two councillors to each ward, these to be elected by the rate, ayers of the ward. The mayor holds office for one year, the councillors for two years; but one-half of the council retires each year.
Both mayor and councillor must be British subjects, at least twenty-one years of age, and ratepayers, the mayor’s assessment reaching at least $500 real or $1,000 personal property.
The council has power to assess for the poor, schools, streets, sewers, water, fire, the courts, police, salaries and the county fund. But before it can grant a bonus, or make a permanent loan, the sanction of the town meeting and the authority of the Legislature must be secured. A loan for school buildings need not be specially authorized by an Act of the Legislature. Exemption from taxation cannot be granted unless sanctioned by a special Act of the Legislature. And all the by-laws or ordinances passed by the town council are subject to the approval of the Governor-in-Council.
The council appoints all officials save the stipendiary magistrate, who is appointed by the Governor-in-Council. The town clerk holds office during good behaviour. The town solicitor may be dismissed by a two-thirds vote. But an official who holds office during good behaviour may appeal to a judge of the County Court or Supreme Court to call upon the mayor and town council to show cause for his dismissal or the reduction of his salary. All other officials save one are appointed for one year. The council appoints three revisers to revise the electoral lists.
Local Problems
Revision of electoral lists, liquor license control and assessment are responsible for most of the local municipal conflicts. As the burdens of taxation increase, the inequalities of the systems become more galling, and the demand for reform more insistent. The control of the sale of liquor has divided the community into two factions, while the revision of the electoral lists opens and keeps open the door to party politics and determines whether a road shall be ditched or a sewer laid according to the great principles of rival national policies.
Electoral Revisers.-Accordingly the revision of the electoral lists is jealously watched. The provincial lists are now used for federal elections, and are prepared by local authorities. The introduction of federal politics into municipal affairs is due partly to this, partly to the patronage placed in the hands of the councillors by the road grants, and partly to the tendency of co-workers in the federal and provincial contests to assist each other in municipal contests.
In Nova Scotia the three electoral revisers are appointed like other municipal officials. They are usually selected from the councillors for the districts concerned. The revisal section in rural municipalities consists of not less than two or more than five polling districts, as the council may determine, each polling district being usually represented by one councillor. Each town. constitutes a single revisal section. The city of Halifax has a registrar of voters, who is appointed by the council, but cannot be removed except for cause.
In New Brunswick the revisal section is the parish. In 1854 the law directed that the revisers be appointed or elected like other parish officers. In 1877 the county councillors of each parish were to be the revisers. If they were but two in number, the council selected another; if more than three, the council selected three. In cities and towns the councils elected the revisers. In 1899 the provincial Government secured the right to appoint the chairman, the other two being councillors.
Sale of Intoxicating Liquors.-The sale of intoxicating liquors is prohibited or regulated by municipal ratepayers in accordance with either the Canada Temperance Act, usually called the “Scott Act,” or a provincial prohibitory law (in Prince Edward Island) or a provincial license law. Compared with the federal Act the provincial prohibitory Act of Prince Edward Island is more stringent. It forbids. the sale except for specified purpose and then through a regularly appointed agent. It gives greater powers with regard to searching, and it provides that any one arrested for drunkenness may be required under oath to state where he received the liquor. In Nova Scotia six counties and Halifax have adopted the provincial license law, the remainder the Dominion prohibitory law. In New Brunswick the provincial license law is in force in the five northern or French counties and in the city of St. John, and the Dominion prohibitory law in. he remainder.
The enforcement of the law is placed in the hands of an inspect or inspectors appointed in Nova Scotia by the municipality. The appointment of an inspector or inspectors must be confined or vetoed by the Governor-in-Council. In New Brunswick the license inspector is appointed by the Governor-in-Council, the “Scott Act” inspector by the municipal council. In Prince Edward Island the police in towns are also inspectors under the law. Their vigilance varies, however, with the complexion of the council as reflected in the com- mission or committee controlling them.
The number of licenses granted is restricted in the following ways. In New Brunswick a distinction is drawn between counties or rural municipalities, incorporated towns and cities. In counties one license is permitted for each full 400 of the first 1,200 population and one for each 1,000 thereafter; in towns one license is permitted for each full 250 of the first 1,000, and one for each 500 thereafter; in the city of St. John the number is limited to 75 shop or tavern licenses and 7 hotel licenses. Since 1877 any parish in a county or any ward in a city has the right of vetoing the granting of licenses within its bounds by recording a majority vote of its ratepayers against it. In Nova Scotia the number is not limited by law, except in Halifax, but the town or the polling district in the county or in the city of Halifax must first express its willingness for the granting of a license by a petition signed by a certain proportion of the ratepayers. In the county or the incorporated town the proportion is two-thirds in favour. In Halifax three-fifths of the ratepayers of polling districts are required for a retail license, a majority for a wholesale. The licenses are granted in Nova Scotia by the council, town or county; in New Brunswick by three commissioners appointed by the Governor-in-Council. Each commissioner holds office for three years, one retiring each year. In each province stringent conditions must be complied with before a license can be granted, and in New Brunswick a commissioner may be subject to a heavy fine for the illegal granting of a license.
The license fees and fines in Nova Scotia go into the municipal treasury. In New Brunswick the spoil is divided with the provincial treasury.
Assessment.-General Acts govern the assessment in counties and towns in each of the three provinces and special Acts the assessment in cities. The provincial Act of Nova Scotia declares all real and personal property and income (subject to certain exemptions) liable for taxation. The assessment law of Hali- fax omits income. A fixed poll tax of 60 cents in the country, $2.00 in towns or $5.00 in Halifax is also exacted. Exemptions are numerous and important. Among others may be mentioned the property of widows to the value of $400, implements or tools of farmers, mechanics or fishermen to the value of $200, the produce of the farm and of the sea; income up to $400 in the country and $600 in the towns. Ships are rated at half value. Funds in provincial debentures, the income from provincial or municipal debentures, the property of railways, and other property by special Act, are exempt.
The New Brunswick provincial Act requires one-sixth of the tax to be raised by a poll tax and the remainder to be levied equally on real and personal property and income. Fredericton until 1907 enjoyed the distinction of retaining a provision whereby income is rated at full value and real and personal property at one-fifth. The exemptions granted are similar to those of Nova Scotia. Corporations are assessed on their paid- up capital less their real estate.
In Prince Edward Island the confusion of provincial and local obligations has produced a distinct type of assessment. The absence of mines, forests and important industries leaves that pastoral island without the great sources of revenue of the sister provinces. The heavy burden of the schools is principally borne by the provincial treasury and not by the district assessment. The principal sources of revenue are the Dominion subsidy, the land, income and road taxes, license fees and succession duties.
The land tax was introduced in 1894. At first it was levied at from one to six cents per acre according to value, but in 1897 this was changed to a percentage tax of one-fifth of one per cent., or twenty cents on every $100. The value of the land includes the value of buildings, but after the first year improvements are not assessed. A rate of one and a half per cent is levied upon income, but income due to manual labour, not exceeding $300, is exempt. The road tax is simple. A poll tax of $1.00 is levied on men between 21 and 60, and twenty-five cents for each horse over three years of age.
In the cities and towns generally there is much dissatisfaction over the system of taxation. Fredericton vigorously protested against the heavy burden placed upon income. John and Halifax complain of the hardships suffered by merchants and manufacturers who carry large stocks of goods. Partial relief was given in Halifax by placing merchandise at three-fourths value and by exempting by special legislation certain industries. Wharf property and shipping were granted similar relief. In St. John the heavy burdens which that ambitious city has incurred its efforts to equip the harbour with ample docks and facilities have aggravated the unequal pressure of its system; and an assessment commission has just reported in favour of a change to a tax on rentals very much as in Ontario. Another commission is sitting in Fredericton. Halifax has had its full share of committees and commissions, yet more are demanded. Fredericton’s preposterous income tax was neutralizing the great advantage of central position and natural beauty and was driving many away. And in both St. John and Halifax municipal taxation is unduly checking manufacturing and trading enterprise.
1 The name of New Ireland was proposed at different times for each of these new provinces. The legislature of Prince Edward Island in 1780 adopted the name, but the Sovereign disapproved. Later it was proposed for New Brunswick (N.B. Historical Collections No 6, p.441), but again prejudice prevailed over the passion for symmetry.
Murray, Walter C. (Walter Charles), 1866-1945. Local Government In the Maritime Provinces. [Canada?: s.n., 1907] https://catalog.hathitrust.org/Record/100296416/Home, https://www.forgottenbooks.com/en/books/LocalGovernmentintheMaritimeProvinces_11146177