Our First Common Law Court

“That for the reasons aforesaid His Excellency the Governor and Members of his Majesty’s Council for this Province hold and keep a Court of Judicature for said Province annually at the respective times and place here mentioned, viz: at Annapolis royal upon the first Tuesday in May, August, November, and February yearly and in every year from time to time. Which Court to have the same Style and Cognizance of all matters and pleas brought before them and power to give Judgment and award. Execution thereupon, by the same manner and proceedings as the General Court so called of Governor and Council has in Virginia, and practices at this time. Voted that his Excellency be desired to put out a proclamation relating to the time, and place where the aforesaid Court be held and the manner of the Court, and that as soon as may be.”

Governor Phillips reported his action to the Secretary of State, and in the course of this communication he observed: “In order to establish civil government the Governor and Council have resolved themselves into a Court, to meet four times a year. The notion that martial law prevails here hinders settlers from coming into the country.”

The present writer has shown elsewhere the extent to which, from the time of Governor Phillips to the time when Governor Cornwallis received his commission and entered upon the discharge of his duties, “the Iawes of Virginia” were applied, and were made “the rule and pattern” for the Government of Nova Scotia. The court established by Governor Phillips and his Council was invested with the powers ordinarily exercised by an English common law court. It had jurisdiction in both civil and criminal matters, and a perusal of the original Minutes of His Majesty’s Council at Annapolis Royal will disclose the varied character of the causes which came before our first court for adjudication. J.t was a common law court; that is to say, it administered the common law that collection of principles which constitutes the basis of the administration of justice in England, as distinguished from the maxims of the Roman code generally known as the civil law. One of its greatest expositors says of it:

“It is emphatically the custom of the realm of England, and has no authority beyond her own territory and the colonies which she has planted in various parts of the world. It is no small proof of its excellence, however, that where it has once taken root it has never been superseded …… The common law is the lex non scripta, that is, the unwritten law which cannot now be traced back to any positive text, but is composed of customs and usages and maxims deriving their authority from immemorial practice, and the recognition of courts of justice.”

Chisholm, J.M. “OUR FIRST COMMON LAW COURT” Dalhousie Review, Volume 01, Number 1, 1921 https://dalspace.library.dal.ca/bitstream/handle/10222/58007/dalrev_vol1_iss1_pp17_24.pdf