On the origin and sources of the Law of Nova Scotia

“In his preface to volume one of the Epitome, Murdoch also acknowledged the usefulness of the four volume Commentaries on American Law, which James Kent, Chancellor of New York, published between 1826 and 1830. Murdoch, like Kent, was much concerned with the pressing problem of “reception” of English law. His device for dealing with it was to found Nova Scotia’s law firmly on the Province’s statutes, construing them in the light of English law, both common and statutory, and according to English law recognition only of so much of it as clearly remained in force in Nova Scotia because of the want of Nova Scotia statutory enactment. Perforce, such an undertaking was an exercise in legal history-a very obscure and confused legal history at that. His success was remarkable: none since has attempted to supersede the Epitome or to replicate it for subsequent Nova Scotian legal developments. Beamish Murdoch can justly be called the first-and greatest-legal historian of Nova Scotia.”

“Acadie, or Nova Scotia, was conquered by General Nicholson in 1710, and was ceded in 1713, by Louis 14, to Queen Anne by the Treaty of Utrecht prior to which it was governed by the edicts and orders of the King of France.

From 1710 to 1749 (when a Government was established at Halifax) the administration of the government was vested in a Governor and Council at Annapolis Royal.

During this period, each of the French Settlements, viz., that of the Annapolis River, Mines, Piziquid and Chignecto, elected annually a number of deputies. It was the duty of the deputies to wait on the Governor and Council at Annapolis Royal, and they formed a medium of communication between the Government and the people, receiving and publishing orders, etc., and it was considered to be their especial duty to carry into effect the orders of the Government.

Prior to the Treaty of Utrecht in 1713, the province was governed by the orders and edicts of the French Monarch; and in matters of law, I believe the coutume de Paris was followed in Acadie, as it was in Canada, both of which were included under the name of New France.

On the conquest and subsequent cession of this country to the English Crown, the Monarch of England became sole lord and proprietor of the dominion, with the full right of legislating for the land and its inhabitants. This power was exercised only as far as necessity demanded, and only by means of the commissions issued by the Crown to the several Governors and the royal instructions given in connection with them. Directions were usually given with them to appoint a Council of twelve members selected from the principal inhabitants and settlers. Governor Philipps, in 1720, was obliged to fill up this number chiefly from the military and civil officers of the garrison of Annapolis, as the noblemen and chief inhabitants had abandoned the country on the conquest and the remaining inhabitants were not only wanting in the education and property requisite to qualify them for the position, but being Roman Catholic were considered ineligible by law under the tenor of the royal instructions and the acts of parliament then in force. Some of the Governors were desiring to appoint inhabitants to the office of justices of the peace, but they were forbidden to carry this into effect by the replies they received from the Lords of Trade and Plantations, who at that time formed a board for the management of colonial affairs.

The royal instructions also authorized the establishment of Courts of Justice in the colony. Under this authority the Governor and Council formed themselves into a General Court, with civil and criminal jurisdiction, sitting in four terms annually, without juries of any kind. This Court was held at Annapolis. The Governor also acted as Judge of Probate; and at Canso, where the English colonists held possession and resorted in numbers every summer for the fishery, Justices of Peace were appointed, and a committee chosen by the people acted in some respects as an Assembly.

The Council continued to be chiefly composed of the military Officers until 1749, and even then several were appointed in the first Council at Halifax.

In the instructions to the Governor of Nova Scotia there were always directions to call an assembly of the people, but owing to the almost entire absence of British inhabitants this instruction remained long inoperative.

The first House of Assembly met accordingly in 1758, all the freeholders of the province uniting in the elections at Halifax, as if it were one county. From this time forth legislation proceeded regularly, and the popular branch of government has gradually obtained the control of all the revenue and Crown property of the province.

Our assemblies, like those of several of the older British provinces, have been modelled in some respects after the Parliament of England; the Governor forming one branch as representing the Sovereign-His Majesty’s Council sitting as a House of Lords-and the representatives as a House of Commons. Colonies thus governed were (before the American revolution) called Crown Colonies, to distinguish them from those who had, like Massachusetts, a constitution underwritten charter from the King, or like Pennsylvania, a lord proprietor with peculiar rights and privileges.

The idea is, that in founding a province, we receive and adopt the general English Common Law, together with such ancient statutes as are considered to virtually form a part of it, such as the statutes of Magna Carta, Westminster, etc., for example; and that from the time of the erection of our local legislature, we take the Acts passed in the province only as imperative, unless where the Parliament in England, acting in the capacity of a Sovereign legislature over the whole British dominions or empire and nation expressly directs the clauses of a law to be in force in the colony.

We are also bound by a rule of great importance, in the observation of such decisions of the Courts of Law in the mother country, as elucidate the doctrines of the Common Law, define the privileges and prerogatives of the Crown, or throw light on statute law in force among us, either British or Provincial Acts.

Although changes of sovereignty have happened in a large proportion of the older colonies of England, yet, we find much valuable information bearing directly on our legal learning in the large number of American treatises and reports of the Courts of Law in the United States. In like manner the decisions of the Supreme Court in the sister province of New Brunswick are well worthy of our attention

If there be not clear decisions or texts of authority in English writers to solve the problem, our attention should be next directed to the reports of decisions in New England and other States, originally English colonies, to find out whether a decision or practice may not be contained in them to throw light on the point, as most of the adjudged cases in the United States, especially in New England, have been heretofore grounded on the ancient principles and maxims of the English Common Law, and modified by the circumstances and emergencies of new countries. The Statutes of our own Province, where they have a bearing on the inquiry and the cases reported in this and the sister provinces, are of course to be consulted.

That the sovereign legislative power of the Crown was not abandoned or supposed to cease on the erection of a Provincial assembly in Nova Scotia may be gathered from the several Acts of Government which occurred at different periods since, and which have all been acquiesced in.

1. The changes from viewing the province as one county with a Provost Marshal General, into several counties with Sheriffs, and from the election of all the representatives in a body by the freeholders of the province to representatives chosen by counties, districts and to townships, by act of the Crown (by order of Council in 1759).

2. A change (1765) from two members for every township to one member, by Act of Government, which, though complained of, was submitted to and confirmed by Provincial Act of that year.

3. The severance of New Brunswick in 1784 into a distinct province, the same being part of the territory of this Province and having its representatives in our assembly. This was effected by order of the Crown, without even notice previously to the Government or to the Assembly of Nova Scotia.

4. The island of Cape Breton was annexed to Nova Scotia in 1763, servered from it in 1784, and again annexed to it in 1820, all those changes were made by orders of the King, without any legislative interference.

5. In 1838, the constitution of the Government and Legislature were changed by orders of the Sovereign. The old council of 12 was abrogated and two councils substituted, and executive council and a legislative council, the latter a greater number of members than the old council.

Here are several organic changes in form of Government and in territory which were all completed without Acts either of the English or of the Provincial Parliament by the sole and exclusive authority of the Crown, and they are all subsequent to the calling of our first assemblies, and have occurred at distant periods in the last and present centuries.”

Beamish Murdoch, “On the origin and sources of the Law of Nova Scotia” (An essay on the Origin and Sources of the Law of Nova Scotia read before the Law Students Society, Halifax, N.S., 29 August 1863), (1984) 8:3 DLJ 197. https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1399&context=dlj