On the Nature of a Colonial Constitution

What was Nova Scotia’s colonial constitution?

According to Hon. Martin I. Wilkins, attorney general at the time of the imposition of the BNA, Nova Scotia possessed a chartered constitution, irrevocable except through force. Nova Scotia, once known as Acadia, was possessed by both the French and English, ultimately becoming British territory after a conquest and subsequent cession by Louis XIV to Queen Anne in 1713.

The treaty of Utrecht solidified Nova Scotia’s status as belonging to the British Crown “forever.” This grant to Queen Anne is emphasized as absolute ownership, surpassing typical property titles. Wilkins argues that neither the people nor the Parliament of England had jurisdiction over Nova Scotia at that time; it belonged solely to the Queen and her heirs.

In 1747, under George II, a patent was issued to Lord Cornwallis, granting Nova Scotia a constitution. This constitution mimicked Britain’s, establishing a Governor, Council (Senate), and House of Assembly. Wilkins highlights the power vested in Cornwallis to summon general assemblies and enact laws for the province’s welfare, emphasizing the constitution’s permanence.

However, subsequent governors delayed convening the Legislative Assembly, preferring to govern through the Council. In 1755, Nova Scotians protested, arguing that only the House of Assembly could enact laws under the granted charter. The matter was referred to England, where Attorney and Solicitor Generals affirmed that the Governor and Council alone lacked authority to make laws for the colony.

The irrevocability of the charter is underscored, with a comparison drawn to a similar case in Grenada (now known as Cambell v Hall). After issuing a commission similar to Cornwallis’, the King attempted to impose taxes on Grenada, leading to a legal challenge. The Court of King’s Bench, led by Lord Mansfield, ruled that the King had relinquished legislative authority over Grenada upon issuing the commission, thus invalidating the taxes.

Wilkins asserts that Nova Scotia’s charter is binding and immutable, having been granted by the Crown. The legal precedents cited affirm that once such charters are granted, the Crown relinquishes legislative authority, making any subsequent attempts to impose laws or taxes illegitimate.

Speeches delivered by Hon. Martin I. Wilkins, (attorney general) in the House of Assembly of Nova Scotia, session 1868, on resolutions relative to repeal of the “British North America Act, 1867”. Wilkins, Martin I. (Martin Isaac), 1804-1881. https://archive.org/details/cihm_23507