Responsible Government in Nova Scotia

This book discusses the evolution of Nova Scotia’s constitutional and legal institutions during the 18th and 19th centuries in terms of the British institutions from which it sprang. As English settlers established colonies, they carried with them differing political and constitutional views, leading to tensions and migrations. Despite this scattering, the underlying issues persisted and grew, ultimately posing challenges for the British Empire as a whole.

The American Revolution emerged from these tensions, fueled by differing interpretations of political sovereignty and governance. Colonists demanded self-government and local autonomy, rebuffing British attempts at centralized control. The Declaration of Independence asserted the rights of man and consent of the governed, principles rooted in British constitutional history but revitalized in the American colonies.

The clash between local autonomy and centralized control led to the formation of the Articles of Confederation and the principle of federalism in the new American republic. Meanwhile, the colonies sought a partnership with Britain rather than subjugation, reflecting a new conception of empire and fellowship among equals.

This period of revolution and adjustment saw the birth of new constitutional principles and governmental customs, challenging traditional notions of imperial governance. Nova Scotia’s role in this constitutional evolution is highlighted, underscoring the neglected history of its contribution to the broader imperial narrative. Extensive research into original and manuscript sources sheds light on this overlooked aspect of history, providing insight into the complexities of constitutional development during this transformative era.


“From the beginning a most important feature of English history has been the steady evolution of a constitution and the development of legal and political institutions. During the period of the seventeenth and eighteenth centuries when her people were expanding into the new world and establishing states as offsprings of the mother country, the constitution at home was undergoing some very necessary adjustments and fundamental changes. While these transformations were wrought primarily for the purpose of meeting the changing circumstances and growing needs of the ancient island kingdom, some of the friction which resulted was profoundly instrumental in sending out to the colonies great groups and sections of her own people, who, when they arrived and settled retained the points of view and the interpretations which had made it unwise and, in some cases, impossible for them to remain at home.

The Puritans, the Cavaliers, the Catholics, and the Quakers all held political and constitutional views somewhat different, representing in those views the points of controversy and change sought before and at the time of their departure. Indeed, no question whatever was actually solved by their removal; rather the difficulties were scattered over a wider field where their growth continued apace, in some cases more virulent than ever, producing in time a more serious problem for the Empire at large than it had been originally for the more limited sphere of the mother country. The need for adjustments was only delayed by this process of scattering, and in time emerged again in a larger form for the Empire as a whole. Also the basic conditions of life in the new world were different, essentially those of the frontier, which tended strongly to bring out, to renew and to revitalize one of the deepest seated characteristics of the British stock, that of self sufficiency.

This added to the difficulty, and out of these two circumstances, — the dissenting colonists and the new life of the frontier — arose a strong sense of constitutional right and a powerful spirit of political and economic independence. This called for statecraft and adjustments of the finest sort from the side of the mother country, but as yet she had not sensed the real meaning of empire, nor was she able to cope successfully with those new problems which expansion and growth had made inevitable.

With the rapid growth and development of the older colonies, and with the acquisition after 1760 of the alien province of Quebec, the problems of political and economic adjustment in the new world became acute. Could the older institutions of the mother country be successfully adapted to the newer conditions and the widely varying circumstances of the several daughter colonies in America? Could the constitution of England in its broad historical meaning be transformed into a constitution for the whole of a vast imperial organization?

The strain was great; the demands for adjustments and change came too quickly upon the government in London; and that government in this evil hour unfortunately was more devoted to a few great private interests than to the larger problems of a growing empire. Indeed, it might be said that in this period the government of England was more a property of those private interests than it was a function of the constitution, and because of this defect it was impossible for the government to consider fairly the broader colonial policy and to preserve the whole of the growing colonial empire under a common Crown.

The deeper problems of adjustment which this British government was not able to meet successfully may be more clearly understood from a study of the constitutional issues of the American Revolution and a consideration of those principles upon which, at first, it was proposed to establish the new American Republic. The democratic life of the new world and the experience in the colonies for over a century of a large degree of self-government had not only produced reinterpretations of some of the older political and legal institutions, but had actually produced new constitutional principles and governmental customs.

The friction and circumstances following 1763 stimulated the colonial statesmen to attempt a definition of some of these new departures. By the time the disruption had been completed and the new republic established those basic principles had been given vivid and dramatic expression.

The Whig parliament in England had drifted far in its interpretation of the state and of its function in the government. Never “weary of expressing their contempt for public opinion” they “denied that members of the Commons sat as representatives of the people.” Standing in sharp contrast with this theory of an all sovereign and irresponsible parliament was the plain assertion in the Declaration of Independence of the rights of man and the “consent of the governed” as the proper basis for all just government wherever found. This broad and fundamental principle involved not only actual self-government for the people but also self-determination for a colony or a state.

But it was not a new constitutional principle, indeed it was as old as the British race and had been understood by such men as Sir Edward Coke in the time of the early Stuarts, and John Locke as he explained the so-called “Glorious Revolution” of 1688. In America this old principle, along with the British stock, had been revitalized and given a new and vigorous emphasis, while at home the Whig parliament and the Hanoverian kings had wandered far from any understanding of its constitutional importance and were unable, therefore, to make those finer adjustments demanded by the colonies prior to 1776.

As a natural corollary to the principle of self-government reasserted by Thomas Jefferson in the Declaration of Independence, was the demand on the part of the thirteen colonies for a system of general government in which the major emphasis should rest, not as the Whigs would have it, upon the central administration, but upon the sacred sovereignty of the local state as a political unit.

The British government had been unable to understand this need but continued to assert that the parliament in London had the power to legislate for them “in all cases whatsoever” and had gone on with its attempt to modify local administration with royal prerogative and centralized control. In this clash of principle — local autonomy versus centralized control — is found the explanation in part, of the first constitution of the new republic, the Articles of Confederation, and the origin of the American principle of federalism.

Of equal importance in the period of revolution and adjustment was the theory held in the colonies of the nature of the empire and of the place of the colony in the larger organization. In harmony with the principle of self-government the colonies maintained that their local legislatures should occupy, a coordinate position under the Crown with the Parliament of Great Britain. In this they were breaking new ground and building slowly a new conception of an imperial organization. Since the people in the colonies were entitled to all the rights of British subjects the colonies could not possibly be considered as possessions of the mother country.

The alternative, therefore, was a partnership relation among them and with the United Kingdom. But again the British government, dominated by the Whig theories, could not appreciate this new interpretation of a larger fellowship as it developed in the growing life of the new world communities. Soon after the organization of the republic this new principle found expression in the definition of the colonial policy of the new American nation. Like the Declaration of Independence, the Ordinance of 1784 came from the vigorous mind of the Virginia liberal, Thomas Jefferson, and the principle of empire which it explains is quite in harmony with his conception of the place of the individual in the social and political organizations. According to this principle, which was finally embodied in the Northwest Ordinance of 1787, the new states, subsequently formed from this Northwest Territory, should be free and autonomous units:

“That Whenever any of the sd. states shall have of free inhabitants as many as shall then be in any one of the least numerous of the thirteen original states, such states shall be admitted by its delegates into the Congress of the United States, on an equal footing with the said original states.” (Report to Congress, March 1, 1784. Journals of Congress Containing their Proceedings (Philadelphia, 1800), Vol. IX (April 23, 1784), pp. 109-110. In the Ordinance of 1787 “in all respects whatsoever” was added. The same principle is found in the earlier deed to the Northwest Territory given by Virginia to Congress and prepared also by Jefferson: “… and that the states so formed, shall be distinct republican states, and admitted members of the federal union; having the same rights of sovereignty, freedom and independence as the other states.” Ibid., p. 48)

The conception here is clearly that of a union of equals freely associated together, and as such it is a definition of a new colonial policy and of a new imperial order. Upon this conception the new American “empire of liberty,” as it was called by Jefferson, was to expand indefinitely under republican institutions. Little did he realize that the older empire of Britain would also in time accept the same liberal interpretation of its own imperial bond.

A history of this political and constitutional process is the scope of this study. The field is new, for Nova Scotia and the period of her important contribution to the constitution of the newer empire has been neglected by the students of history and politics. (In June 1926, the Canadian Historical Review published the writer’s article, “The First Responsible Party Government in British North America”. Last year, 1929, since the completion of this volume, the Oxford Press published a study by Professor Chester Martin, Empire and Commonwealth, which has a section devoted to the constitutional evolution of Nova Scotia.)

The research, therefore, has involved the use and study of original, and in many cases manuscript sources, hitherto unexploited. Most of these are available in the Public Archives of Canada at Ottawa. Some are in the Provincial Archived of Nova Scotia and others are to be found only at the Public Record Office in London.”

Livingston, Walter Ross. Responsible Government In Nova Scotia: a Study of the Constitutional Beginnings of the British Commonwealth. Iowa City: The University, 1930. https://hdl.handle.net/2027/wu.89080043730https://archive.org/details/responsiblegover0000livi

“As Near as May Be Agreeable to the Laws of this Kingdom”: Legal Birthright and Legal Baggage at Chebucto, 1749

“The new governor’s commission gave him power to establish the accepted institutions of civil government: a council, a legislative assembly, courts, and a judiciary. It accorded him the power of the civil executive to defend the colony, exercize the king’s prerogative of mercy, administer public funds, make grants and assurances of lands, and establish fairs and markets. Most significantly, Cornwallis’ commission, tested 6 May 1749, gave authority to the governor “with the advice and consent of our said Council and Assembly or the Major part of them respectively . . .” in Nova Scotia

to make, constitute and ordain Laws, Statutes & Ordinances for the Publick peace, welfare & good government of our said province and of the people and inhabitants thereof and such others as shall resort thereto & for the benefit of us our heirs & Successors, which said Laws, Statutes and Ordinances are not to be repugnant but as near as may be agreeable to the Laws and Statutes of this our Kingdom of Great Britain.

The last clause, as to non-repugnancy and agreeableness to the laws of England, had a long history behind it. And it was a history that included the province of Acadia for three decades before Cornwallis and his colonists arrived at Chebucto. After seven years of essentially military rule following the capture of Port Royal in 1710-under those two rigorous warriors, Samuel Vetch and Francis Nicholson, who took the fort-British Acadia came under the governorship of Col. Richard Philipps in 1717. And there it remained for thirty-two years of increasing neglect and, after the first four years, the continuous absence of the governor.

The Board of Trade was hardly less soporific with respect to the province. In 1719 it finally got around to issuing instructions to Philipps that hinted at the creation of a regular civil government on what was the already accepted pattern for Britain’s colonies, with a legislative assembly to make laws, but directed him in the meantime to follow the 1715 instructions to the Earl of Orkney as governor of Virginia. Clause 62 of the Virginia instructions read:

You are to take Care that no Man’s Life Member freehold or Goods be taken away or harm’d in our said Colony otherwise than by establish’d and known Laws, not repugnant but as near as may be agreeable to the Laws of this Kingdom.

Virtually the same provision had been contained in the January 1682 instructions to Gov. Thomas Lord Culpepper of Virginia.

The non-repugnance and agreeableness clause in colonial enabling instruments originated in the 1632 charter to Lord Baltimore for Maryland, which directed that the laws made by colonial legislative authority were to be “inviolably observed” under penalties,

So, nevertheless, that the Laws aforesaid be consonant to Reason, and be not repugnant or contrary, but (so far as conveniently may be) agreeable to the Laws, Statutes, Customs, and Rights of this Our Kingdom of England.

In this point, so close are the instructions to Cornwallis to the provisions in the 1632 Maryland charter, it is reasonable to suppose that, if the latter was not the immediate parent of the former, it was the remote ancestor.”

Thomas Garden Barnes, “As Near as May Be Agreeable to the Laws of this Kingdom”: Legal Birthright and Legal Baggage at Chebucto, 1749” (1984) 8:3 DLJ 1. https://digitalcommons.schulichlaw.dal.ca/dlj/vol8/iss3/1/

Settlement previous to 1749

census 1688

From The Story of Dartmouth, by John P. Martin:

Dartmouth, long before the European explorers and colonizing forces, had a 7,000 year history of occupation by the [Mi’kmaq]. The [Mi’kmaq] annual cycle of seasonal movement; living in dispersed interior camps during the winter, and larger coastal communities during the summer; meant there were no permanent communities in the Euro-centric sense, but Dartmouth was clearly a place frequented by [Mi’kmaq] for a very long time. Whether it was the Springtime smelt spawning in March; the harvesting of spawning herring, gathering eggs and hunting geese in April; the Summer months when the sea provided cod and shellfish, and coastal breezes that provided relief from irritants like blackflies and mosquitos, or during the autumn and its eel season; Dartmouth with its lakes and rivers, both breadbasket and transport route back and forth to the interior, was a natural place for the [Mi’kmaq] to spend their non-winter months.

A fascinating look into what Nova Scotia and Atlantic Canada could’ve looked like, from the end of the ice age at 19,000 BCE, until present. By 12,000 BCE, this model shows Cape Cod extending much further into the ocean than it does at present, along what is now Brown’s bank, a ridge which more or less stretches all the way to Sable Island along the continental shelf. A sea level 300 feet lower than it is today was enough to create a kind of land bridge to the parts of western and central Nova Scotia no longer under ice, the Bay of Fundy looking like it was an inshore repository for glacial meltwater until sea levels rose. This could’ve allowed for human exploration and settlement in what is now known as Nova Scotia previous to the retreat of the ice sheet in full.

By 10,000 BCE most of the ice had retreated, which squares with the earliest artifacts found in the area, such as at Debert, which date to the same general period, if not previous to that. That sea levels had risen one hundred feet in this two thousand year period might be instructive as to why artifacts are few and far between from this period, many of the settlements, if coastal, would have long ago been lost to the sea. Assuming the artifacts found (at Debert and Belmont) were not from nomadic hunters, and that this model is somewhat accurate, Nova Scotia could have been settled for 10,000 years or more.

Source: https://web.archive.org/web/20210807155606/https://sos.noaa.gov/catalog/datasets/blue-marble-sea-level-ice-and-vegetation-changes-19000bc-10000ad/, https://web.archive.org/web/20130219202242/https://sos.noaa.gov/Docs/bluemarble3000h.kmz

A census of the district of Acadia taken in 1687-1688 attributed to de Gargas shows Chebucto had 1 French family consisting of a man, wife and son; that there were 7 Mi’kmaw men, 7 Mi’kmaw women and 19 Mi’kmaw children, “36 souls” in total. 1 French house, 7 Mi’kmaw homes, 3 guns, 1/2 acre of improved land.

census 1688
Source: https://dalspace.library.dal.ca/bitstream/handle/10222/15754/MS-6-13A1_DeGargas_Census.pdf?sequence=1
carteacadie6 map
“Chibouctou: https://cityofdartmouth.ca/carte-particuliere-de-la-coste-daccadie/
Source: “Recensements d’Acadie (1671-1752)”, (info), http://139.103.17.56/cea/livres/doc.cfm?livre=recensements, http://139.103.17.56/cea/livres/doc.cfm?retour=R0231&ident=R0040

The St. Malo fishermen who were located at Sambro and at Prospect in the days of French ownership, must often have run to the inner harbor either to dry fish on our long beaches, or to barter furs with the natives who were always their allies. On the Dartmouth side of the harbor, geographical conditions were far more favorable for congregating, with three voluminous streams of never-failing fresh water flowing down to the estuaries of the two little bays, both later known as Mill Cove.

Besides that, there was an abundance of shell fish available at low tide, along with lobsters, crabs, sea-trout, salmon, halibut, codfish, and haddock, with the usual runs of herring and mackerel in warm weather. The woods teemed with wild life. Partridge roosted on trees, moose and deer roamed the forest, and wedges of wild fowl honked high overhead.

The evidence already submitted that the [Mi’kmaq] resorted to the Cove, is borne out by the description of Cobequid (Truro district) by Paul Mascarene about 1721, where he states that “there is communication by a river from Cobequid to Chebucto”. This Implies that the Shubenacadie route had long been in use. Engineer Cowie, after studying several harbor sites for Ocean Terminals a hundred years ago was of the opinion that Chebucto had been used as a trading post over a century before its permanent settlement.

In 1701, when M. Brouillan the newly appointed French Governor, came here from Newfoundland to rule Acadia, he went overland from Chebucto to Port Royal. This is in Murdoch’s History. Dr. Thomas H. Raddall, in his bicentennial story of Halifax, thinks that on this occasion, [Mi’kmaq] transported the Governor by the well-known canoe route of Dartmouth Lakes. (One can’t imagine a viceregal party trudging over a rough black-flied trail from Bedford to Windsor, or portaging through the shallow rivers of that section of country).

One of the early sketches of Dartmouth side is preserved at the N.S. Archives. It is a detailed drawing of the whole shore and harbor, showing the depth of water from the Eastern Passage to the head of the Basin, done by the French military engineer De Labat in 1711.

The indentations of the various inlets seem quite accurate. The soundings must have occupied a full summer, and the work was no doubt done from small boats; otherwise his large vessel would have butted such shoals as Shipyard Point and the one off shore at Queen Street.

dartmouth map

Not sure whether this is the 1711 map Martin attributes to De Labat but it is detailed, especially as it relates to the Dartmouth Cove, and it contains a number of soundings as he describes. From: “Plan de la rivière de Seine et en langage accadien Chibouquetou” http://gallica.bnf.fr/ark:/12148/btv1b53089940v/f1.item.r=halifax.zoom