“The [Mi’kmaq] had appeared in the neighborhood of the town for several weeks, but intelligence had been received that they had commenced hostilities, by the capture of twenty persons at Canso… On the last day of September they made an attack on the sawmill at Dartmouth, then under the charge of Major Gilman. Six of his men had been sent out to cut wood without arms. The [Mi’kmaq] laid in ambush, killed four and carried off one, and the other escaped and gave the alarm, and a detachment of rangers was sent after the [Mi’kmaq], who having overtaken them, cut off the heads of two [Mi’kmaq] and scalped one.
This affair is mentioned in a letter from a gentleman in Halifax to Boston, dated October 2nd as follows: “About seven o’clock on Saturday morning before, as several of Major Gilman’s workmen with one soldier, unarmed, were hewing sticks of timber about 200 yards from his house and mills on the east side of the harbor, they were surprised by about 40 [Mi’kmaq], who first fired two shots and then a volley upon them which killed four, two of whom they scalped, and cut off the heads of the others, the fifth is missing and is supposed to have been carried off.”
“The Governor deeming it expedient that some permanent system of judicial proceedings to answer the immediate exigencies of the Colony should be established, a committee of Council was accordingly appointed to examine the various systems in force in the old Colonies. On 13th December, Mr. Green reported that after a careful investigation, the laws of Virginia were found to be most applicable to the present situation of the province. The report was adopted. It referred principally to the judicial proceedings in the General Courts, the County Courts, and other tribunals.”
“In the month of August, 1750, three hundred and fifty-three settlers arrived in the ship Alderney… Those who came in the ship Alderney, were sent to the opposite side of the harbor, and commenced the town of Dartmouth, which was laid out in the autumn of that year. In December following, the first ferry was established, and John Connor appointed ferryman by order in Council.
In the Spring of the following year the [Mi’kmaq] surprised Dartmouth at night, scalped a number of settlers and carried oft several prisoners. The inhabitants, fearing an attack, had cut down the spruce trees around their settlement, which, instead of a protection, as was intended, served as a cover for the enemy. Captain Clapham and his company of Rangers were stationed on Block-house hill, and it is said remained within his block-house firing from the loop-holes, during the whole affair. The [Mi’kmaq] were said to have destroyed several dwellings, sparing neither women nor children. The light of the torches and the discharge of musketry alarmed the inhabitants of Halifax, some of whom put off to their assistance, but did not arrive in any force till after the [Mi’kmaq] had retired. The night was calm, and the cries of the settlers, and whoop of the [Mi’kmaq] were distinctly heard on the western side of the harbor. On the following morning, several bodies were brought over — the [Mi’kmaq] having carried off the scalps. Mr. Pyke, father of the late John George Pyke, Esq., many years police magistrate of Halifax, lost his life on this occasion. Those who fled to the woods were all taken prisoners but one. A court martial was called on the 14th May, to inquire into the conduct of the different commanding officers, both commissioned and non-commissioned, in permitting the village to be plundered when there were about 60 men posted there for its protection.
There was a guard house and small military post at Dartmouth from the first settlement, and a gun mounted on the point near the Saw Mill (in the cove) in 1749. One or two transports, which had been housed over during winter and store ships were anchored in the cove, under cover of this gun, and the ice kept broke around them to prevent the approach of the [Mi’kmaq]. The attempt to plant a settlement at Dartmouth, does not appear to have been at first very successful. Governor Hobson in his letter to the Board of Trade, dated 1st October, 1753, says, “At Dartmouth there is a small town well picketed in, and a detachment of troops to protect it, but there are not above five families residing in it, as there is no trade or fishing to maintain any inhabitants, and they apprehend danger from the [Mi’kmaq] in cultivating any land on the outer side of the pickets.”
There is no record of any concerted attack having been made by the [Mi’kmaq] or French on the town of Halifax.”
“German palatine settlers (arrived on the 10th of June 1751, and) they were employed at Dartmouth in picketing in the back of the town.”
“On February 3rd 1752, a public ferry was established between Halifax and Dartmouth and John Connors appointed ferryman for three years, with the exclusive privilege, and ferry regulations were also established.”
“The government mills at Dartmouth, under charge of Captain Clapham, were sold at auction in June. They were purchased by Major Gilman for $310.”
“In 1754, an order was made for permission to John Connors, to assign the Dartmouth Ferry to Henry Wynne and William Manthorne.”
January 26th 1756, the term of Henry Wynne and William Manthorne’s licenses of the Dartmouth and Halifax ferry having expired, John Rock petitioned and obtained the same on the terms of his predecessors.”
“(1757) was also memorable as the one in which Representative government was established in Nova Scotia. The subject of calling a Legislative Assembly had undergone much discussion. It had been represented by the Governor and Council, to the authorities in England, that such a step at that particular time would be fraught with much danger to the peace of the colony. Chief Justice Belcher, however, having given his opinion that the Governor and Council possessed no authority to levy taxes, and their opinion being confirmed in England, it was resolved by council on January 3rd 1757, that a representative system should be established and that twelve members should be elected by the province at large, until it could be conveniently divided into counties, and that the township of Halifax should send four members, Lunenburg two, Dartmouth one, Lawrencetown one, Annapolis Royal one, and Cumberland one, making in all twenty-two members, and the necessary regulations were also made for carrying into effect the object intended.”
“In September, 1785, a number of whalers from Nantucket came to Halifax ; three brigantines and one schooner, with crews and everything necessary for prosecuting the whale fishery, which they proposed to do under the British flag. Their families were to follow. A short time after they were joined by three brigantines and a sloop from the same place. On the twentieth of October following, the Chief Land Surveyor was directed to make return of such lands as were vacant at Dartmouth to be granted to Samuel Starbuck, Timothy Folger, and others, from Nantucket, to make settlement for the whalers. The Town of Dartmouth had been many years previously laid out in lots which had been granted or appropriated to individuals, some of whom had built houses, and others though then vacant, had been held and sold from time to time by their respective owners. Most of these lots were reported vacant by Mr. Morris, the surveyor, and seized upon by the Government, as it is said, without any proceeding of escheat, and re-granted to the Quakers from Nantucket, which caused much discontent, and questions of title arose and remained open for many years after.”
“The whale fishery was the chief subject which engaged the attention of the public during (1785). Much advantage was expected to accrue to the commerce of the place from the Quakers from Nantucket having undertaken to settle in Dartmouth. They went on prosperously for a short time, until they found the commercial regulations established in England for the Colonies were hostile to their interests, and they eventually removed, some of them, it is said, to Wales and other parts of Great Britain, where they carried on their fishery to more advantage.
A petition was presented this autumn to the Governor and Council from a number of merchants, tradesmen and other inhabitants, praying for a Charter of Incorporation for the Town of Halifax. This was the first occasion on which the subject was brought prominently before the public. It was, however, not deemed by the government ” expedient or necessary ” to comply with the prayer of the petition. The reasons are not given in the Minute of Council, which bears date 17th November, 1785. The names of the Councillors present were Richard Bulkeley, Henry Newton, Jonathan Binney, Arthur Goold, Alexander Brymer, Thomas Cochran and Charles Morris.
The functions of His Majesty’s Council at this period of our history embraced all departments of executive authority in the Colony. They were equally supreme in the control of town affairs as those of the province at large. The magistrates, though nominally the executive of the town, never acted in any matter of moment without consulting the Governor and Council. The existence of a corporate body having the sole control of town affairs would in a great measure deprive them of that supervision which they no doubt deemed, for the interest of the community, should remain in the Governor and Council.”
“Folger and Starbuck, the Quaker whalers, who settled at Dartmouth a year or two since, left (in 1792), for Milford Haven in Great Britain, where they expected to carry on their whale fishery with greater facilities than at Dartmouth.”
“…the Governor, M. Danseville, with several hundred prisoners and stores were brought to Halifax. They landed on the 20th of June (1793). Governor Danseville was placed on parole, and resided at Dartmouth for many years in the house known as Brook House, now or lately the residence of the Hon. Michael Tobin, Jr., about a couple of miles or more from Dartmouth town. The old gentleman displayed some taste in beautifying the grounds at Brook House. He built a fish pond and laid out walks among the beech and white birch groves near the house. The pond still remains, but the walks and most of the trees have long since disappeared. He remained a prisoner with an allowance from Government until the peace of 1814, when he returned to his own country a zealous royalist.”
“a poll tax had been imposed by Act of Legislature in 1791.”
“During the spring of 1796 Halifax suffered from a scarcity of provisions. The inhabitants were indebted to Messrs. Hartshorne and Tremain, whose mills at Dartmouth enabled them, through the summer, to obtain flour at a reduced price and to afford a sufficient supply for the fishery.”
“The following list of town officers appointed by the Grand Jury for the Town March 5th 1806, will be found interesting: … Edward Foster, Surveyor of highways from Dartmouth Town Plot to the Basin; Samuel Hamilton, Constable from Dartmouth Town Plot to the Basin; Jon. Tremain, Sr., William Penny, Surveyors of Highways, Dartmouth Town Plot; David Larnard, Constable, Dartmouth Town Plot; James Munn, Pound Keeper, Dartmouth Town Plot; Henry Wisdom, Surveyor of Highways from the Ferry up the Preston Road to Tanyard”
“In the autumn (of 1814) the small pox made its appearance in Dartmouth and Preston and was very fatal among the Chesapeake blacks].”
“There were two ferries (in 1815). The upper ferry was conducted by John Skerry, whose memory is still cherished by many, both in Dartmouth and Halifax, as one of the most obliging and civil men of his day. Skerry’s wharf in Dartmouth was a short distance south of the steam boat wharf (—at the foot of Ochterloney Street today). The other ferry was the property of Mr. James Creighton, known as the Lower Ferry, situate to the south of Mott’s Factory (—at the bottom of Old Ferry Road). It was conducted for Mr. Creighton by deputy and was afterwards held under lease by Joseph Findlay, the last man who ran a ferry boat with sails and oars in Halifax Harbor. These ferry boats were furnished with a lug sail and two and sometimes four oars. They were large clumsy boats and occupied some thirty or forty minutes in making the passage across the harbor. There were no regular trips at appointed hours. When the boat arrived at either side the ferryman blew his horn (a conch shell) and would not start again until he had a full freight of passengers. The sound of the conch and the cry of ”Over! Over! ” was the signal to go on board. The boats for both ferries landed at the Market Slip at Halifax.
An act of the Legislature had been obtained this session to incorporate a Steamboat Company with an exclusive privilege of the ferry between Halifax and Dartmouth for 25 years. They could not succeed in getting up a company, steam navigation being then in its infancy, and in the following year had the act amended to permit them to run a boat by horses to be called the Team-boat. This boat consisted of two boats or hulls united by a platform with a paddle between the boats. The deck was surmounted by a round house which contained a large cogwheel, arranged horizontally inside the round house, to which were attached 8 or 9 horses harnessed to iron stanchions coming down from the wheel. As the horses moved round, the wheel turned a crank which moved the paddle. It required about twenty minutes for this boat to reach Dartmouth from Halifax. It was considered an immense improvement on the old ferry boat arrangement, and the additional accommodation for cattle, carriages and horses was a great boon to the country people as well as to the citizens of Halifax, who heretofore had been compelled to employ Skerry’s scow when it was found necessary to carry cattle or carriages from one side of the harbor to the other.
The first trip of the Team-boat was made on the 8th November, 1810. The following year an outrage was committed which caused much excitement and feeling in the town. All the eight horses in the boat were stabbed by a young man named Hurst. No motive for this cruel act could be assigned, drunkenness alone appearing to be the cause. The culprit was tried for the offence and suffered a lengthy imprisonment. Mr. Skerry kept up a contest with the Company for several years, until all differences were arranged by his becoming united with the Company, and after a short time old age and a small fortune, accumulated by honest industry, removed him from the scene of his labors.
The team-boat after a year or two received an addition to her speed by the erection of a mast in the centre of the round house, on which was hoisted a square sail when the wind was fair, and afterwards a topsail above, which gave her a most picturesque appearance on the water. This addition considerably facilitated her motion and relieved the horses from their hard labor. As traffic increased several small paddle boats were added by the Company, which received the appellation of Grinders. They had paddles at the sides like a steamboat, which were moved by a crank turned by two men. In 1818 the proprietors of the old ferries petitioned the House of Assembly against the Teamboat Company suing these small boats as contrary to the privilege given them by the Act of Incorporation. It afterwards became a subject of litigation until the question was put an end to by Mr. Skerry becoming connected with the Company. Jos. Findlay continued to run his old boats from the south or lower ferry until about the year 1835.”
“During the month of February (1818), the harbor was blocked up with float ice as far down as George’s Island. Between 13th and 20th, persons crossed from Dartmouth on the ice at the Narrows.”
“By the 27th of January 1821 the ice formed a firm bridge between Halifax and Dartmouth, over which a continuous line of sleighs, teams and foot passengers might be seen on market days.”
“In the United States there should be much interest in the Diocese of Nova Scotia, for that Diocese owes its existence to the Tories of the Revolution, who went in thousands from New York and Massachusetts to the “Acadian Province by the Sea,” and its first bishop was, at the outbreak of the war, the honored rector of the leading Church in the older Colonies.”
“If it had not been for the fierce legislation of the Whigs in the various colonies against the adherents of the crown, the history of this part of the country, both secular and religious, would be vastly different from what it is.”
“The attention of New York loyalists seems to have been early directed towards the almost uninhabited province of New Brunswick.”
Eaton, Arthur Wentworth Hamilton, 1849-1937. The Church of England In Nova Scotia And the Tory Clergy of the Revolution. 2d ed. New York: T. Whittaker, 1892. https://hdl.handle.net/2027/uc2.ark:/13960/t6b27tb7p
“From the beginning of the strife in the American colonies, New York, which unlike Massachusetts [–and like Nova Scotia] was a royal or crown colony, naturally showed marked loyalist sympathies. It has often been sweepingly asserted that all the leading families of New York were Tories, but that this was far from being the case is shown by the fact that some of the most active supporters of the revolutionary cause, like John Jay and Gouveneur Morris, bore names as proud as any in the province; and that although the DeLanceys, DePeysters, Philippses and Johnsons, and the greater part of the local aristocracy who acknowledged the leadership of these families, were enthusiastic supporters of the crown, the Schuylers and Livingstons, at least, were known as equally enthusiastic in the Whig cause.”
“So far as religion ruled, the Episcopalians naturally were almost entirely Tory in feeling, and the same was true of a minority of the adherents of the Dutch Reformed body, while the Presbyterians and people of other dissenting bodies, as a rule, were Whigs. In both New York and New England the government officials, almost without exception, ranged themselves on the side of the crown…”
“Of Queen’s County, Long Island, Jones’ History of New York says: Nearly a third of the whole inhabitants have since the late peace and the recognition of American independence preferred inhospitable wilds of Nova Scotia rather than live in a country governed by the iron and oppressive hand of rebellion”
“Many of the Loyalists who had come to Nova Scotia were so destitute that in May, 1783, an order for a muster was issued by Governor Parr… According to this muster the Revolutionary war had brought into Nova Scotia 28,347 persons, of whom 12,388 were men, 5,486 women… of these people, 480 (settled at) Dartmouth.”
The focus for me is this view, one of the earliest views of Dartmouth, full of detail!
This is the only representation I’ve ever seen of the gibbet at what used to be Hangman’s Point, later the Nantucket Whaling Company lands, the Marine Railway, the Dartmouth Shipyards, and now King’s Wharf.
“Some few towns excepted, we are all tillers of the earth, from Nova Scotia to West Florida. We are a people of cultivators, scattered over an immense territory, communicating with each other by means of good roads and navigable rivers, united by the silken bands of mild government, all respecting the laws, without dreading their power, because they are equitable.”
“In this great American asylum, the poor of Europe have by some means met together, and in consequence of various causes; to what purpose should they ask one another what countrymen they are? Alas, two thirds of them had no country. Can a wretch who wanders about, who works and starves, whose life is a continual scene of sore affliction or pinching penury; can that man call England or any other kingdom his country? A country that had no bread for him, whose fields procured him no harvest, who met with nothing but the frowns of the rich, the severity of the laws, with jails and punishments; who owned not a single foot of the extensive surface of this planet? No! urged by a variety of motives, here they came. Every thing has tended to regenerate them; new laws, a new mode of living, a new social system; here they are become men: in Europe they were as so many useless plants, wanting vegetative mould, and refreshing showers; they withered, and were mowed down by want, hunger, and war; but now by the power of transplantation, like all other plants they have taken root and flourished! Formerly they were not numbered in any civil lists of their country, except in those of the poor; here they rank as citizens. By what invisible power has this surprising metamorphosis been performed? By that of the laws and that of their industry. The laws, the indulgent laws, protect them as they arrive, stamping on them the symbol of adoption; they receive ample rewards for their labours; these accumulated rewards procure them lands; those lands confer on them the title of freemen, and to that title every benefit is affixed which men can possibly require. This is the great operation daily performed by our laws. From whence proceed these laws? From our government. Whence the government? It is derived from the original genius and strong desire of the people ratified and confirmed by the crown. This is the great chain which links us all, this is the picture which every province exhibits, Nova Scotia excepted.
There the crown has done all; either there were no people who had genius, or it was not much attended to: the consequence is, that the province is very thinly inhabited indeed; the power of the crown in conjunction with the musketos has prevented men from settling there. Yet some parts of it flourished once, and it contained a mild harmless set of people. But for the fault of a few leaders, the whole were banished. The greatest political error the crown ever committed in America, was to cut off men from a country which wanted nothing but men!“
Letter IV – Description of the Island of Nantucket, with the Manners, Customs, Policy, and Trade of the Inhabitants
“It would be a task worthy a speculative genius, to enter intimately into the situation and characters of the people, from Nova Scotia to West Florida; and surely history cannot possibly present any subject more pleasing to behold.”
Letter VI – Description of the Island of Martha’s Vineyard; and of the Whale Fishery
“The [Mi’kmaq] there appeared, by the decency of their manners, their industry, and neatness, to be wholly Europeans, and nowise inferior to many of the inhabitants. Like them they are sober, laborious, and religious, which are the principal characteristics of the four New England provinces. They often go, like the young men of the Vineyard, to Nantucket, and hire themselves for whalemen or fishermen; and indeed their skill and dexterity in all sea affairs is nothing inferior to that of the whites. The latter are divided into two classes, the first occupy the land, which they till with admirable care and knowledge; the second, who are possessed of none, apply themselves to the sea, the general resource of mankind in this part of the world. This island therefore, like Nantucket, is become a great nursery which supplies with pilots and seamen the numerous coasters with which this extended part of America abounds. Go where you will from Nova Scotia to the Mississippi, you will find almost everywhere some natives of these two islands employed in seafaring occupations.”
When Halifax was first settled, this side of the harbor was the home and hunting ground of the [Mi’kmaq].
Soon after the settlement of Halifax, Major Gillman built a saw mill in Dartmouth Cove on the stream flowing from the Dartmouth lakes.
On September 30th 1749, [Mi’kmaq] attacked and killed four and captured one out of six unarmed men who were cutting wood near Gillman’s mill.
In August 1750, the Alderney, of 504 tons, arrived at Halifax with 353 immigrants, a town was laid out on the eastern side of the harbor in the autumn, given the name of Dartmouth, and granted as the home of these new settlers.
A guard house and military fort was established at what is still known as Blockhouse hill [—the hill on King Street, at North].
In 1751 [Mi’kmaq] made a night attack on Dartmouth, surprising the inhabitants, scalping a number of the settlers and carrying off others as prisoners.
In July 1751, some German emigrants were employed in picketing the back of the town as a protection against the [Mi’kmaq].
In 1752, the first ferry was established, John Connor, of Dartmouth, being given the exclusive right for three years of carrying passengers between the two towns.
Fort Clarence was built in 1754.
In 1758 the first Charles Morris, the Surveyor General, made a return to Governor Lawrence giving a list of the lots in the town of Dartmouth.
In 1762 the same Charles Morris wrote: “The Town of Dartmouth, situate on the opposite side of the harbour, has at present two families residing there, who subsist by cutting wood.”
In 1785 three brigantines and one schooner with their crews and everything necessary for the whale fishery arrived, and twenty families from Nantucket were, on the invitation of Governor Parr, settled in Dartmouth. These whalers from Nantucket were Quakers in religion. Their fishing was principally in the Gulf of St. Lawrence which then abounded with black whales.
In 1788 a common of 150 acres [—200 acres, in keeping with with the New England tradition of “200 acres for a common, sixty acres for a Town Site“, (1808 Toler map overlay) and certain tracts for a meeting house, cemetery, school”] was granted Thomas Cochran, Timothy Folger and Samuel Starbuck in trust for the town of Dartmouth. When these good Quakers left, Michael Wallace, Lawrence Hartshorne, Jonathon Tremaine, all subsequently members of Christ Church, were made trustees [in 1798]. Acts relating to this common were passed in 1841, 1868 and 1872, and the present Dartmouth Park Commission was appointed in 1888.
In 1791 the idea of building a canal between the Shubenacadie river and Dartmouth by utilizing the lakes, a plan which originated with Sir John Wentworth, was brought before the legislature. The Shubenacadie Canal company was incorporated in 1826.
In 1792 most of the Quakers left Dartmouth. One at least, Seth Coleman, ancestor of the Colemans of today, remained.
In early days Lawrence Hartshorne, Johnathon Tremain and William Wilson all Churchmen, carried on grist-mills at Dartmouth Cove. At a ball given by Governor Wentworth on December 20th, 1792, one of the ornaments on the supper table was a reproduction of Messrs. Hartshorne and Tremain’s new flour mill.
Many French prisoners of war were brought here off the prizes brought to the port of Halifax. Some were confined in a building near the cove, which now forms part of one of the Mott factories.
In 1797 “Skipper” John Skerry began running a public ferry between Halifax and Dartmouth.
In 1809 Dartmouth contained 19 houses, a tannery, a bakery and a grist-mill.
In 1814 Murdoch relates that “Sir John Wentworth induced Mr. Seth Coleman to vaccinate the poor persons in Dartmouth, and throughout the township of Preston adjoining. He treated over 400 cases with great success.”
The team boat Sherbrooke made her first trip across the harbor on November 8th, 1816.
As already related the first schools in the town were established by the Church of England, the teachers getting salaries, small it is true, from the Society for the Propagation of the Gospel. Mary Munn (appointed 1821) was the first teacher of the girls at a salary of £5 a year. William Walker (appointed 1824), father of E.M. Walker, and grandfather of H.R. Walker, now superintendent of Christ Church Sunday School, at £15 year of the boys. Mr. Walker held school in a little half stone house on the site of the present Central School. The S.P.G. was specially anxious for the religion instruction of the children, and the following “Prayers for the use of the Charity Schools in America”, issued by the society were doubtless regularly used by these early teachers.
A fire engine company was formed in 1822, a Axe and Ladder Company in 1865, and a Union Protection Company in 1876.
Lyle & Chapel opened a shipyard about 1823.
In 1828 a steam ferry boat of 30 tons, the SirCharles Ogle, was built at the shipyard of Alexander Lyle. In 1832 a second steamer, the Boxer, was built; and in 1844 a third, the Micmac.
In 1836 the ice business was commenced. William Foster erecting an ice house near the Canal Bridge on Portland Street. The ice was taken in a wheel-barrow to Mr. Foster’s shop in Bedford Row, Halifax, and sold for a penny a pound.
In the thirties the industries of Dartmouth included besides the grist mill, of which William Wilson was chief miller, a foundry run by James Gregg on the hill back of the railway station; the manufacture of putty and oils by William Stairs; a tannery kept by Robert Stanford; a tobacco factory; the making of silk hats or “beavers” by Robinson Bros.; a soap chandlery run by Benjamin Elliott opposite Central School, and several ship building plants.
It is estimated that altogether $359,951.98 was spent on this canal. The stone locks and parts of the canal are all that remain today.
Edward H. Lowe, a leading member of Christ Church, was for many years secretary and manager of the Dartmouth Steamboat Company. At his death he was succeeded by another good Churchman, Captain George Mackenzie, whose wife was a daughter of Rev. James Stewart.
The first vessel built in Dartmouth was called the “Maid of the Mill”, and was used in carrying flour from the mill then in full operation.
In 1843 Adam Laidlaw, well known as driver of the stage coach between Windsor and Halifax, commenced cutting and storing the ice on a large scale, making this his only business.
In 1845 a Mechanics Institute, the first of the kind in Nova Scotia, was formed in Dartmouth.
The first regatta ever held on Dartmouth Lake is said to have been that on October 5th, 1846.
About 1853 the late John P. Mott commenced his chocolate, spice and soap works.
In 1853 the inland Navigation company took over the property and in 1861 a steam vessel of 60 tons, the Avery, went by way of the canal to Maitland and returned to Halifax.
In 1856 George Gordon Dustan Esq., purchased “Woodside.” He was much interested in the refining of sugar, and the Halifax Sugar Refinery company was organized with head offices in England, and Mr. Dustan was one of the directions. The first refinery was begun in 1883, and sugar produced in 1884. In 1893 the refinery was transferred to the Acadia Sugar Refinery Company, then just founded.
Mount Hope, the Hospital for the insane, was erected between 1856 and 1858, the first physician being in charge being Dr. James R. DeWolfe.
About 1860 the Chebucto Marine Railway Company was found by Albert Pilsbury, American Consul at Halifax, who then resided at “Woodside,” four large ships being built by H. Crandall, civil engineer.
In 1860 the Dartmouth rifles were organized with David Falconer as captain, and J.W. Johnstone (afterwards Judge) and Joseph Austen as lieutenants.
A month later the Dartmouth Engineers with Richard Hartshorne as captain and Thomas A. Hyde and Thomas Synott lieutenants were found.
Gold was discovered at Waverly in 1861.
In 1862 the whole property and works were sold by the sheriff to a company which was styled “The Lake & River Navigation Company,” which worked the canal for a little time at a small profit. Thousands of pounds were spent on the enterprise.
The works of the Starr Manufacturing Company were commenced by John Starr in 1864, associated with John Forbes. At first they made iron nails as their staple products. Mr. Forbes invented a new skate, the Acme, which gained a world-wide reputation, and in 1868 a joint company was formed.
In 1869 the Boxer was sold and the old Checbucto also built there, put in her place.
In 1868 the firm of Stairs, Son & Morrow decided to commence the manufacture of rope, selected Dartmouth for the site of the industry, erected the necessary buildings and apparatus in the north end of the town, and began the manufacture of cordage in 1869.
In 1885 a railway was constructed from Richmond to Woodside Sugar Refinery, with a bridge across the Narrows 650 feet long, which was swept away during a terrific wind and rain storm on Sept. 7th, 1891. A second bridge at the same place was carried away on July 23rd, 1893.
In 1886 the railway station was built.
In 1888 the Dartmouth (ferry) was built.
The present Ferry Commission was appointed on April 17th 1890. It purchased the Arcadia from the citizens committee, and also the Annex 2 of the Brooklyn Annex Line, which was renamed the Halifax. The Steam Ferry Company finally sold out to the Commission, thus terminating an exciting contest between town and company.
In 1890 the Halifax and Dartmouth Steam Ferry Company withdrew the commutation rates, and the indignant citizens purchased the Arcadia which carried foot passengers across for a cent, but at a loss.
Until 1890 most of the water was obtained from public wells and pumps.
In 1891 a Water Commission was formed. E.E. Dodwell, C.E. was appointed engineer, and on November 2nd 1892, our splendid water supply was turned on for the first time.
In 1891 a public reading room, believed “to be the only free reading room in the province” at the time, was established near the ferry docks.
The old brick post office near the ferry was erected in 1891, the present fine building quite recently.
On July 13th 1892, the Dartmouth Electric Light and Power Company began its service.
Woodside once had a brickyard and lime kilns, first owned by the late Samuel Prescott. They then passed by purchase to Henry Yeomans Mott, father of John Prescott Mott and Thomas Mott.
Mount Amelia was built by the late Judge James William Johnstone.
Among the early settlers in Dartmouth was Nathaniel Russell, an American loyalist, who settled near the Cole Harbor Road near Russell Lake. He was the father of Nathaniel Russell, who took so great an interest in the Mechanics Institute, grandfather of Mr. Justice Benjamin Russell, great grandfather of H.A. Russell, one of our progressive citizens of today.
The Rev. J.H.D. Browne, now of Santa Monica, California, and editor of the Los Angeles Churchman, who was with the Late Archdeacon Pentreath, one of the founders of Church Work, was born and spent his boyhood in Dartmouth.
Captain Ben Tufts was the first settler at Tuft’s Cove.
John Gaston, who lived near Maynard’s Lake, drove a horse and milk wagon into Halifax, a two-wheeled conveyance known as “Perpetual Motion”. He is said to have been the first to extend his milk route from this side to Halifax.
A few interesting notes about initial attempts to settle Halifax are included here, as well as some details about the settlement of Dartmouth. The entirety of Chapter five is included also, a thorough overview of Nova Scotia’s legal and constitutional situation and its place outside the realm, some interesting observations on the constitutional nature within England itself, as well as the various institutions that were a part of life previous to the “paper revolution” that introduced “Responsible government” (previous to the overthrow of Nova Scotia’s constitution in an 1867 coup known as “confederation”).
“The beauty and the safety of this (Halifax) harbor attracted the notice of speculators at a very early period, and many applications were at different times made, for a grant of land in its vicinity. The famous projector, Captain Coram, was engaged in 1718, in a scheme for settling here; and a petition was presented by Sir Alexander Cairn, James Douglas, and Joshua Gee, in behalf of themselves and others, praying for a grant upon the sea coast, five leagues S.W. and five leagues N.W. of Chebucto, upon condition of building a town, improving the country around it, be raising hemp, making pitch, tar and turpentine, and of settling two hundred families upon it within three years. This petition received a favorable report from the Lords of Trade; but as it was opposed by the Massachusetts’s agents, on account of a clause restricting the fishery, it was rejected by the Council.”
“Dartmouth – Opposite at Halifax, on the eastern side of the harbour, which is there about nine tenths of a mile wide, is situated the town of Dartmouth, which was laid out and settled in the year 1750. In the war of 1756, the [Mi’kmaq] collected in great force on the Bason of the Minas, ascended the Shubenacadie river in their canoes, and at night, surprising the guard, scalped or carried away most of the inhabitants. From this period, settlement was almost derelict, till Governor Parr, in 1784, encouraged 20 families to remove thither from Nantucket, to carry on the south sea fishery. The town was laid out in a new form, and £1,500 provided for the inhabitants to erect buildings. The spirit and activity of the new settlers created the most flattering expectations of success. Unfortunately, in 1792, the failure of a house in Halifax, extensively concerned in the whale fishery, gave a severe check to the Dartmouth establishment, which was soon after totally ruined. About this period, an agent was employed by the merchants of Milford, in England, to persuade the Nantucket settlers to remove thither; the offers were too liberal to be rejected, and the Province lost these orderly and industrious people.
During the late war the harbour became the general rendezvous of the navy and their prizes, which materially enriched the place, and extended the number of buildings. Between Dartmouth and Halifax a team boat constantly plies, for the accommodation of passengers. The whole of the eastern shore of the harbour, though by no means the first quality of soil, is much superior to the western… On the eastern passage there are some fine farms, chiefly settled by Germans, and every cove and indent contains a few families of fisherman, who supply Halifax with fresh and cured fish. A chain of lakes in this township, connected with the source of the Shubenacadie River, suggested the idea of uniting the waters of the Bason of Minas with Halifax harbour, by means of a canal. Of these lakes Charles, or the first Shubenacadie Lake, is distant from Halifax about three miles and a half.”
A close up of the map above, centered on the Dartmouth area.
“A desire to know something of the Government under which we live is not only natural but commendable. In England there are many books written on the constitution of the Country, but in Nova Scotia, the inquisitive reader, while he finds enacted laws, will search in vain for any work professedly treating the origin of the authority that enacts them. The labor of examining the History of other colonies analogous to our own for this information is very great, and the means of doing so not always attainable. In a work of this kind, a brief outline is all that can be looked for, consistently with the space claimed by the other objects which it embraces; but it is hoped that it will be sufficient for the purpose of general information.
In British America there were originally several kinds of Governments, but they have been generally classed under three heads.
1st. Proprietary governments, granted by the Crown to individuals, in the nature of feudatory principalities, with all the inferior regalities and feudatory powers of Legislation, which formerly belonged to Counties Palantine, on condition that the object for which the grant was made should be substantially pursued, and that nothing should be attempted in derogation of the authority of the King of England. Of this kind were Pennsylvania, Maryland and Carolina (now Louisiana.)
2nd. Charter Governments, in the nature of civil corporations, with the power of making bye laws, for their own internal regulations, and with such rights and authorities as were especially given to them in their several acts of incorporation. The only charter Governments that remained at the commencement of the Civil War, were the Colonies of Massachusetts Bay, Rhode Island, Providence and Connecticut.
3rd. Provincial governments, the constitutions of which depended on the respective Commissions, issued by the Crown to the governors, and the instructions which accompanied those commissions -Under this authority Provincial Assemblies were constituted, with the power of making local ordinances not repugnant to the laws of England. Of the latter kind is Nova Scotia, which is sometimes called the Province and sometimes the Colony of Nova Scotia. For some time previous to the Revolution in America, the popular leaders affected to call the Provincial establishments, or King’s governments on the Continent, Colonies instead of Provinces, from an opinion they had conceived that the word Province implied a conquered Country. But whatever distinction there might once have been between the terms Province, Colony and Plantation, there seems now to be none whatever, and they are indiscriminately used in several acts of Parliament. A Provincial government is immediately dependent upon the Crown, and the King remains sovereign of the Country. He appoints the Governor and Officers of State, and the people elect the Representatives as in England. The orders of judicature in these establishments are similar to those of the mother country, and their legislatures consist of a governor, representing the crown, a council or upper house, and an assembly chosen by, and representing the people at large. The following is a short account of the powers and privileges exercised in Nova-Scotia, by these several branches respectively in their own systems:
Governor
The Provinces in British North America are in general comprised in one command, and the Captain General, Governor and Commander-in-Chief, resides in Canada. The Governors of the several Provinces are styled Lieutenant-Governors, and have the title of Excellency, in consequence of being the King’s immediate Representative. The Governor of Nova- Scotia has the rank of Lieut.-General, and is styled “Lieutenant-Governor and Commander-in-Chief, in and over His Majesty’s Province of Nova-Scotia, and its dependencies, Chancellor and Vice-Admiral of the same”.
He is invested with the following powers:
1st. As Commander-in-Chief he has the actual command of all the militia, and if a senior military officer, of all the army within his Government; and he commissions all officers of the militia. He appoints the Judges of all the different Courts of Common Law, he nominates and supersedes at will, the Custodes, Justices of the Peace, and other subordinate civil officers. With the advice of his Council he has authority to summon General Assemblies, which he may, from time to time, prorogue and dissolve as he alone shall judge needful. All such civil employments as the Crown does not dispose or are part of his patronage, and whenever vacancies happen in such offices as are usually filled up by the British Government, the Governor appoints pro-tempore, and the persons so appointed are entitled to all the emoluments till those who are nominated to supercede them arrive in the Colony. He has likewise authority, when he shall judge any offender in criminal matters a fit object of mercy, to extend the King’s pardon towards him, except in case of murder and high treason, and even in those cases he is permitted to reprieve until the signification of the Royal Pleasure.
2d. The Governor has the custody of the Great Seal, presides in the High Court of Chancery, and in general exercises, within his jurisdiction, the same extensive powers as are possessed by the Lord High Chancellor of Great Britain, with the exception of those given by particular statutes.
3d. The Governor has the power of granting probate of wills and administration of the effects of persons dying intestate, and, by statute, grants licences for marriages.
4th. He presides in the Court of Error, of which he and the Council are Judges,to hear and determine all appeals, in the nature of writs of error, from the Superior Courts of Common Law.
5th. The Governor is also Vice-Admiral within his Government, although he cannot, as such, issue his warrant to the Judge of the Court of Vice-Admiralty to grant commissions to privateers.
6th. The Governor, besides various emoluments which arise from fees and forfeitures, has an honorable annual provision settled upon him, for the whole term of his administration in the Colony ; and that he may not be tempted to diminish the dignity of his station by improper condescensions, to leading men in the Assembly, he is in general restrained by his instructions from accepting any salary, unless the same be settled upon him by Law within the space of one year after his entrance into the Government, and expressly made irrevocable during the whole term of his residence in the administration, which appears to be a wise and necessary restriction.
A Governor, on his arrival in the Province, must (agreeably to the directions of his commission and his instructions – The Gazette has, in some instances, been held sufficient, when the Commission was not made out) in the first place, cause his commission as Governor and Commander-in-Chief, and also of Vice-Admiral, to be read and published at the first meeting of the Council, and also in such other manner as hath been usually observed on such occasions. In the next place, he must take the oaths to Government, and administer the same to each of the Council, and make and subscribe the declaration against transubstantiation, and cause the Council, unless they have previously done so, to do the same. He must then take the oath, for the due execution of the office and trust of Commander-in-Chief and Governor, and for the due and impartial administration of Justice; and he must also cause the oath of office to be administered to the Members of the Council.
— In the last place, he must take an oath to do his utmost, that the several laws relating to trade and the plantations be duly observed; which oaths and declaration, the Council, or any three of the members thereof, are empowered to administer.
Every Governor, together with his commission, receives a large body of instructions, for his guidance in the discharge of his various duties. In the event of his death, the next senior Counsellor, not being the Chief Justice or a Judge, takes the command of the Colony, until an appointment is made by His Majesty, and is required to take the same oaths, and make the same declaration as a Governor. Such are the powers and duties of a Governor, and the mode of redress for the violation of these duties, or any injuries committed by him upon the people, is prescribed with equal care. The party complaining has his choice of three modes
1st. by application to Parliament.
2d. by complaint to the Privy Council.
3d. by action in the King’s Bench.
By statute 11 and 12th, William 3d, cap. 12, confirmed and extended by 42d Geo. 3d, cap. 85, all offences committed by Governors of plantations, or any other persons in the execution of their offices, in any public service abroad, may be prosecuted in the Court of King’s Bench in England. The indictment is to be laid in Middlesex, and the offenders are punishable, as if the offence had been committed in England, and are also incapacitated from holding any office under the Crown. The Court of King’s Bench is empowered to award a mandamus to any Court of Judicature, or to the Governor of the Colony, where the offence was committed, to obtain proof of the matter alleged, and the evidence is to be transmitted back to that Court, and admitted upon the trial.
The Council
The Council consists of twelve members, who arc appointed either by being named in the Governor’s instructions, by mandamus (A nomination by a Governor must be followed by a mandamus, but the person nominated acts until his mandamus arrives) or by the Governor. Their privileges, powers, and office, are as follow:
1st. They are severally styled Honorable, they take precedency, next to the Commander in-Chief, and on his death or absence, the eldest member succeeds to the government,under the title of President.
2d. They are a Council of State, the Governor or Commander-in-Chief, presiding in person, to whom they stand nearly in the same relation as the Privy Council in Great Britain does to the Sovereign.
3d. They are named, in every commission of the peace, as Justices throughout the province.
4th. The Council together with the Governor, sit as Judges in the Court of error, or Court of appeal, in civil causes, from the courts of Record, and constitute also a Court of Marriage and Divorce. It has, however, been lately decided, that if the Governor dissent from the Judgment of the Council or be in the minority, the judgment is nevertheless valid.
5th. The Council is a constituent part of the legislature, as their consent is necessary to the enacting of Laws. In this capacity of legislators, they sit as the upper house, distinct from the Governor, and enter protests on their journals, after the manner of the House of Peers, and are attended by their Chaplain, Clerk, &c. As there was no order of hereditary nobility in the Colonies, out of which to constitute an intermediate body, like the Peers of England and Ireland, a legislative authority was doubtless, at an early period intrusted to the Governors and their Council acting conjointly, and forming a middle branch, between the Crown on the one hand, and the representatives of the people on the other. That this was formerly the case, the history of most of the colonies clearly evinces.
(In the Saxon times the Parliament did not consist of two distinct houses, the Peers being freeholders of large territory, were deemed the hereditary representatives of their vassals and tenants. In the Scotch Parliament there ever was one House, consisting of three estates, Peers, Representatives of Shires, and commissioners of Boroughs, they all voted together indifferently, but in Committees and the like, the proportion of Committee-men from each was limited).
The governor and council in legislative affairs, constitutes not two separate and distinct bodies independent of each other, but one constituent branch only, sitting and deliberating together. As it sometimes became necessary to reject popular bills, the Governors to divert the displeasure of the assembly from themselves to the Council, gradually declined attending on such occasions, leaving it to the board to settle matters as they could, without their interference. The council readily concurred with their designs, because their absence, removing a restraint, gave them the appearance of a distinct independent estate, and the crown perceiving the utility of the measure, gradually confirmed the practice in most of the British Colonies. This appears to be the plain origin which the Council enjoy of deliberating apart from the governors, on all bills sent up by the Assembly, of proposing amendments, to such bills, or of rejecting them entirely, without the concurrence of the governor.
The Councillors serve his Majesty without salary. In the grant of all patents, the Governor is bound to consult them, and they cannot regularly pass the seal without their advice. Though they deliberate as a distinct body, in their capacity as legislators, yet as a privy council, they are always convened by the Governor, who is present at their deliberations. As an upper house, their proceedings, though conducted with closed doors, are formal, and in imitation of the usage of the house of Lords, and although they cannot vote by proxy, they may enter the reasons of their dissent on their journals. Dissimilar as this body is in many important particulars to the house of Lords, any nearer approach to the original, appears from the state of the country, to be very difficult.
Mr. Pitt seems to have entertained the idea of creating an order of hereditary nobility in Canada, for the purpose of assimilating the constitution of that province, as nearly as possible to that of Great Britain; and accordingly a clause was introduced to that effect, in the act of the 31st. Geo. 3d. Chap. 31. “That whenever his Majesty, his heirs, or successors, shall think proper to confer upon any subject of the Crown of Great Britain, by letters patent, under the great seal of either of the said Provinces, any hereditary title of honor, rank or dignity of such Province descendable* according” to any course of descent therein limited, it shall and may be lawful for his Majesty, his heirs, or successors, to annex thereto, by the said letters patent of his Majesty, his heirs or successors, shall think fit an hereditary right of being summoned to the Legislative Council of such Province, descendable according to the course of descent so limited, with respect to such title rank or dignity, and that every person on whom such right shall be conferred, or to whom such right shall severally so descend, shall be entitled to demand of the Governor, Lieutenant Governor, or Commander-in-Chief, or person administering the government of such province, his writ of summons to such Legislative Council, at any town, after he shall have attained the age of twenty one years, subject nevertheless to the provisions hereinafter contained.”
Rules of precedency compared and adjusted from the several acts and statutes, made and provided in England, for the settlement of the precedency of men and women in America
This power has never been exercised: it has been justly observed, that these honors might be very proper, and of great utility in countries where they have existed by long custom, but they are not fit to be introduced where they have no original existence; where there is no particular reason for introducing them, arising from the nature of the country, its extent, its state of improvement or its peculiar customs; and where instead of attracting respect they might excite envy. Lords, it was said, might be given to the Colonies, but there was no such thing as creating that reserve and respect for them, on which their dignity and weight in the view of both the popular and monarchical part of the Constitution depended, and which could alone give them that power of controul and support, which were the objects of their institution.
But although the introduction of titles is not desirable, this board is susceptible of great improvement, by a total separation of its duties as a Privy Council, and a branch of the Legislature. Experiments of all kinds in Government are undoubtedly much to be deprecated, but this plan has been adopted elsewhere, not only with safety but with mutual advantage to the interests of the Crown and the people. By making the Members of the Legislative Council independent of the Governor for their existence, (for at present he has not only the power of nomination, but of suspension – Stokes mentions an instance of a Governor of a Colony, suspending a Councillor, on the singular ground of having married his daughter without his consent) and investing them with no other powers than those necessary to a branch of the Legislature, much weight would be added to administration, on the confidence and extent of interest that it would thereby obtain, a much more perfect and political distribution of power would be given to the Legislature, and the strange anomaly avoided of the same persons passing a law, and then sitting in judgement on their own act, and advising the Governor to assent to it.
This could be effected in two ways, by making the Legislative Council elective, or leaving the nomination to the Crown. If the former were preferred, it could be constructed on the plan proposed by Mr. Fox, in his speech in Parliament on the Quebec Bill. He suggested that the Members of the Council should not be eligible to be elected, unless they possessed qualifications infinitely higher than those who were eligible to be chosen members of the House of Assembly, and in the like manner, that the electors of the members of the Council, should possess qualifications, also proportionally higher than those of the electors of Representatives. By this means this country would have a real aristocracy chosen from among persons of the highest property, by people possessed of large landed estate, who would thus necessarily have the weight, influence, and independency, from which alone can be derived a power of guarding against any innovations which might be made either by the people on the one side, or the Crown on the other; should this mode be objected to, as bordering too much on democracy, the election might be left with great safety to the Crown, with this express proviso, that every Councillor so named, should be possessed of landed estate in the Colony, to a certain given extent, and should hold his seat for life. In either mode it would be rendered a most respectable and useful body.
Whether the Council forms a Court for the trial of offences, by impeachment from the House of Assembly, upon analogy to the practice of Parliament, is a question which never having been agitated here, has not been judicially determined. As Councillors do not represent any particular body of people, like the House of Lords, nor assemble as hereditary Legislators, in support of their rights and dignities, equally independent of the Crown and the people, but are appointed at the discretion of the Governor (In 1791, the articles of impeachment against the Judges of Nova-Scotia, were ordered to be heard before the King in Council), it seems very questionable whether they possess the power. The reason assigned in England, for the peculiar propriety of prosecuting high crimes and misdemeanors, by impeachment, is that as the Constituents of the Commons, are the parties generally injured, they cannot judge with impartiality, and therefore prefer their accusations before the other branch, which consists of the nobility, who have neither the same interest nor the same passions as popular assemblies. This distinction not being so obvious in the Colonial Legislatures, it appears that a complaint in the nature of impeachment, should be addressed to the King in Council.
House Of Assembly
The Assembly resembles the lower house of Parliament in its formation, mode of procedure, and power within its jurisdiction, as far as the different circumstances of the country permit. The freeholders are are assembled in the several Counties and Towns entitled to representation by the king’s writ, and their suffrages taken by the Sheriff. The members thus elected, are required by the Governor to meet at Halifax, the capital of the province, at a certain day, when the usual oaths being administered, and a Speaker chosen and approved, the sessions is opened by a speech from the person administering the Government, in imitation of that usually delivered from the throne, in which after adverting to the state of the Province, he calls their attention to such local subjects, as seem to require their immediate consideration. Halifax chooses 4 county, and 2 town, members; all the other counties 2, and the towns mentioned in the subjoined Table one.
The qualifications for a vote or representation are either a yearly income of forty shillings, derived from real estate within the particular county or town for which the election is held, or a title in fee simple of a dwelling house, and the ground on which it stands, or one hundred acres of land, five of which must be under cultivation. It is requisite that the title be registered six months before the test of the writ, unless it be by descent or devise. The declaration against transubstantiation has hitherto proved an effectual bar to the admission of Catholics into the Assembly, but upon the re-annexation of Cape-Breton to the Government of the Province, a gentleman professing that faith was returned as a member for the Island, and a dispensation procured from his Majesty, for administering the declaration to him.
—When this was made known, the Assembly, after much debate, adopted the following resolution:
“Resolved, that this House, grateful to his Majesty for relieving his Roman Catholic subjects from the disability they were heretofore under, from sitting- in this House, do admit the said Lawrence Kavanagh to take his seat, and will in future permit Roman Catholics, who may be duly elected, and shall have the necessary qualifications for a seat in this House, to take such seat without making a declaration against popery and transubstantiation; and that a Committee be appointed to wait upon his Excellency the Governor, and communicate to him the Resolution of this House.”
In 1827, an address was voted to his Majesty, by the unanimous voice of the House, praying for the total removal of this obnoxious test, as far as regarded his Catholic subjects of Nova Scotia. The Assembly continues for the term of seven years, from the return day of the writs of election, subject nevertheless to be dissolved in the mean time by the Governor, who has the power of proroguing the Council and Assembly, and appointing the time and place of their Session; with this constitutional injunction, that they shall be called together once at least every year.
The Legislature meets generally in winter, and continues in Session from six to twelve weeks. The principal business consists in investigating the public accounts; in appropriating the Revenue; which, after the discharging of the civil list, is chiefly applied to the improvement of the roads and bridges, bounties for the encouragement of agriculture; and sometimes for promoting the fisheries. As its jurisdiction is confined to the limits of the Province, and as there are no direct taxes in the Country (poor and county rates and statute labour excepted) the above mentioned business, together with some few Laws, principally of a local nature, usually occupies their attention. Sometimes however, business of a more general interest comes before them, when the debates are often conducted with ability and spirit. In treating of the Assembly, it will be proper to investigate the origin of the claim of the Colonists to legislate for themselves; and to unfold the principles in which this claim was confirmed by the Mother Country.
—The constitution of England, as it stood at the discovery of America, had nothing in its nature providing for Colonies. They have therefore, at different periods of their growth, experienced very different treatment. At first they were considered lauds without the limits of the realm, and therefore, not being united to it, not the property of the Realm: as the people who settled upon these lands in partibus exteris, were liege subjects, the King assumed the right of property and Government, to the preclusion of the jurisdiction of the state. He called them his foreign dominions, his possessions abroad, not parts and parcels of the Realm, and “as not yet annexed to the crown.”
It was upon this principle, that in the year 1621, when the Commons asserted the right of Parliament to a jurisdiction over them, by attempting to pass a bill for establishing a free fishery on the coasts of Virginia, New England, and Newfoundland, they were told by the servants of the crown that it was not fit for them to make laws for those countries which were not yet annexed to the crown, and that the bill was not proper for that house, as it concerned America. Upon this assumption the Colonies were settled by the King’s license, and the Governments established by Royal Charters; while the people emigrating to the Provinces considered themselves out of the realm; and in their executive and legislative capacities, in immediate connection with the King as their only Sovereign Lord. These novel possessions requiring some form of government, it became an exceedingly difficult matter to select that form. At last an analogy was supposed to exist between the Colonies and the Dutchy of Normandy; and the same form of Government* was adopted as had been used for the Island of Jersey.
*It is however observable, that although it was evidently the intention of the mother country, to grant the power of election to the people of the Colonies, so soon as they should be in a situation to receive a representative form of Government, yet the people assumed the right themselves, as appears by the following extract from Hutchinson, 1 vol. 94. ‘”Virginia had been many years distracted, under the government of Presidents and Governors, with Councils, in whose nomination or removal of the people had no voice until in the year 1620, a house of Burgesses broke out in the Colony, the King nor the grand Council at home, not having given any powers or direction for it. The Governor and assistants of the Massachusetts, at first intended to rule the people, but this lasted two or three years only, and although there is no colour for it in the Charter, yet a house of deputies appeared suddenly in 1634, to the surprise of the Magistrates, and the disappointment of their schemes of power. Connecticut soon after followed the plan of Massachusetts. New Haven, although the people had the highest reverence for their leaders, yet on matters of legislation the people, from the beginning, would have their share by their representatives. New Hampshire, combined together under the same form with Massachusetts. Barbadoes or the Leeward Islands began in 1625, struggled under Governors and Councils, and contending proprietors, 20 years. At length in 1645, an Assembly was called and the only reason given was, that by the grant to the Earl of Carlisle, the inhabitants were to have all the liberties, privileges and franchises of English subjects. After the restoration, there is no instance on the American continent, of a colony settled without a representation of the people, nor any attempt to deprive the colonies of this privilege, except in the arbitrary reign of King James the 2d.
It was a most fortunate circumstance, that the Island had by its constitution, “a right to hold a convention or meeting of the three orders of the Islands, in imitation of those august bodies in great kingdoms, a shadow and resemblance of an English Parliament.”
The King having assumed a right to govern the Colonies, without the intervention of Parliament, so the two Houses of Lords and Commons, in the year 1643, exerted the same power, without the concurrence of the King. They appointed the Earl of Warwick Governor in Chief of all the Plantations of America,created a committee for their regulation, and passed several laws concerning them. (See Pownal on the Colonies, passim)
Upon the restoration of Monarchy, the constitution of the Colonies received a great change. Parliament asserted, that all His Majesty’s Foreign Dominions were part of the realm, and then, for the first time, in their proper capacity, interposed in the regulation and government of the Colonies. From that period sundry laws have been passed, regulating their commerce, and having, in other respects, a direct operation on the Colonies. But nothing emanating either from the power assumed by the King, independent of Parliament, or from the Parliament without the concurrence of the King, or from the union of both, establishing the right of legislation in the colonists. It may be asserted, that every British subject has an essential right to the enjoyment of such a form of government, as secures the unrestrained exercise of all those powers necessary for the preservation of his freedom and his rights, according to the constitution of England; and that no authority can contract it within a narrower compass than the subject is entitled to by the Great Charter. Hence the Charters and Proclamations of the Crown to the several Colonies, are considered as declaratory only of ancient rights, and not creative of new privileges.
It is worthy of remark, that when England was herself a Province, the Colonies of London, Colchester, &c. enjoyed the same privilege of being governed by a legislative magistracy, which the American Colonies always contended for. At a subsequent period, but before the discovery of the New World, and when the precedent was considered as not likely to be often followed, we find that when King Edward ordered the French inhabitants to leave Calais, and planted an English Colony there, that place sent Burgesses to Parliament.
To all this it has often been answered, that the Colonies are virtually represented in Parliament. A few words will suffice in reply to this position. It was well observed by the Earl of Chatham, (although he carried the doctrine of the power of Parliament over the Colonies, to every circumstance of legislation and government short of taxation) “that the idea of virtual representation, as regards America, is the most contemptible that ever entered the head of man.” Of England it is entirely true.
Although copyholders and even freeholders, within the precincts of boroughs (not being burgesses) have no vote, yet the property of the copy-holders is represented by its lord, and the property of the borough is represented by the corporation, who choose the member of Parliament; while those persons who are not actually freeholders, have the option of becoming so if they think proper. But the Colonies are neither within any county or borough of England. Few members of Parliament have ever seen them, and none have a very perfect knowledge of them. They can therefore neither be said to be actually, or virtually represented, in that august body.
Hence the Colonies have a right, either to a legislature of their own, or to participate in that of Great-Britain. To the latter there are many objections; and when suggested on a former occasion, the plan was not cordially received on either side of the water; the other, custom has sanctioned and experience approved. To what extent the British Parliament has a right to interpose its authority, or how far the power of the Colonial Assembly extends, it is impossible to ascertain with accuracy. The doctrine of the omnipotence of the one, and the independence of the other, has at different times been pushed to an extreme by the advocates of each.
The true distinction appears to be, that Parliament is supreme in all external, and the Colonial Assembly in all internal matters. The unalterable right of property has been guaranteed to the Colonists, by the act renouncing the claim of taxation, the 18th Geo. 3d, by which it is declared “that the King and Parliament of Great Britain will not impose any duty, tax, or assessment, whether payable in any of his Majesty’s Colonies, Provinces or Plantations, in North America or the West Indies, except such duties as it may be expedient to impose, for the regulation of commerce; the net produce of such duties to be always paid and applied to, and for the use of the Colony, Province or Plantation, in which the same shall be respectively levied, in such manner as other duties, collected by the authority of the respective General Courts or General Assemblies of such Colonies, Provinces or Plantations, are ordinarily paid and applies.
Taxation is ours, commercial regulation is theirs; this distinction, says a distinguished statesman, is involved in the abstract nature of things. Property is private, individual, abstract; and it is contrary to the principles of natural and civil liberty, that a man should be divested of any part of his property without his consent. Trade is a complicated and extended consideration; to regulate the numberless movements of its several parts, and to combine them in one harmonious effect for the good of the whole, requires the superintending wisdom and energy of the supreme power of the Empire.
—The Colonist acknowledges this supremacy in all things, with the exception of taxation and of legislation in those matters of internal Government to which the Local Assemblies are competent. This may be said to be the “quam ultra contraque nequit consistere rectum.” But ever in matters of a local nature the regal control is well secured by the negative of the Governor; by his standing instructions not to give his assent to any law of a doubtful nature without a clause suspending its operation, until his Majesty’s pleasure be known, and by the power assumed and exercised, if disagreeing to any law within three years after it has passed the Colonial Legislature.
With these Provinces it is absurd to suppose, whatever may be said to the contrary, that the Local Assemblies are not supreme within their own jurisdiction; or that a people can be subject to two different Legislatures; exercising at the same time equal powers yet not communicating with each other, nor from their situation capable of being privy to each others proceedings. This whole state of commercial servitude and civil liberty when taken together, says Mr. Burke, is certainly not perfect freedom, but comparing it with the ordinary circumstances of human nature, a happy and liberal condition.
Court Of Chancery
The Governor is Chancellor in Office. The union of these two offices is filled with difficulties, and where the Governor is, as has been the case in almost all the Colonies of late years, a military man, they seem wholly incompatible. Mr. Pownal, a gentleman of great experience in colonial affairs, having been Governor of Massachusetts, South Carolina and New Jersey, thus expresses himself on this subject: “How unfit are Governors in general for this high office of law, and how improper it is, that they should be Judges, where perhaps the consequence of judgment may involve Government and the administration thereof, in the contentions of parties.— Indeed the fact is, that the general diffidence of the wisdom of this Court, thus constituted, the apprehension that reasons of state may be mingled with the grounds of the judgment, have had an effect that the coming to this Court is avoided as much as possible, so that it is almost in disuse, where the establishment of it is allowed.”
The Court of Chancery in this Colony, has never been conducted in a manner to create the dissatisfaction alluded to in other Provinces; but the increased business of the Court, the delicate nature of the appointment, and the difficulties attending the situation, induced our late Lieutenant Governor, Sir James Kempt, to request his Majesty’s Ministers to appoint a professional man, to fill the situation of the Master of the Rolls, and the Solicitor General has been appointed to that office, with a Provincial salary of £600 a year. This is the first appointment of the kind ever made in the Colonies. It may be still doubted, whether it would not have been more advantageous and convenient to the country at large, to have abolished the Court altogether, and to have empowered the Judges of the King’s Bench to sit as Judges in Equity, at stated and different terms from those of the Common Law Courts. The nature of the Court, as at present constituted, admits of great delays. An appeal lies from an interlocutory decretal order of a Chancellor to His Majesty in Council, and so toties quoties, by means of which the proceedings may be protracted by a litigious person to an indefinite length. The unnecessary prolixity of pleadings, which characterises the Chancery at home, has been introduced into practice here, and the expence and delay incidental to its proceedings, arc not at all calculated for the exigencies and means of the country.
Court Of Error And Appeals
The Governor and Council, conjointly, constitute a Court of Error, from which an appeal lies in the dernier resort to the King in Council. At the time of settling the Colonies, there was no precedent of a Judicatory besides those within the realm, except in the cases of Guernsey and Jersey. These remnants of the Dutchy of Normandy were not, according to the prevailing doctrine of those times, within the realm. According to the custom in Normandy, appeals lay to the Duke in Council; and upon the general precedent (without, perhaps, adverting to the peculiarity of the appeal, lying to the Duke of Normandy, and not to the King) was an appeal established from the Courts in the Colony to the King in Council. An appeal is under the following restrictions :
1st. No appeal shall be allowed to the Governor in Council, in any civil cause, unless the debtor damage, or the sum or value appealed for, do exceed the sum of £300 sterling, except the matter in question relates to the taking or demanding any duty payable to the King, or to any fee of office, or annual rent, or other such-like matter or thing, where his rights in future may be bound ; in all which cases an appeal is admitted to the King, in his Privy Council, though the sum or value appealed for, be of less value. In all cases of fines for misdemeanours, no appeals are admitted to the King in Council, except the fines, so imposed, amount to or exceed the value of £200 sterling.
2d. That every such appeal to the Governor in Council be made within fourteen days after Judgment or sentence is pronounced in the Court below ; and that the appellant or plaintiff in error, do give good security that he will effectually prosecute his appeal or writ of error, and answer the condemnation money, and also pay such costs and damages as shall be awarded, in case the judgment or sentence of the Court below shall be affirmed.
3d. That no appeal be allowed from the judgment or sentence of the Governor in Council, or from the decree of the Court of Chancery, to the King in his Council, unless the debt, damages, or the sum or value so appealed for, do exceed the sum of £500 sterling, except where the matter in question relates to the taking or demanding any duty payable to the King, or to any fee of office, or an annual rent, as above mentioned.
4th. That such appeal to His Majesty or his Privy Council, be made within fourteen days after judgment or sentence is pronounced by the Governor, in the Court of Chancery ; and that the appellant or plaintiff in error, do give good security, that he will effectually prosecute his appeal or writ of error, and answer the condemnation money ; and also pay such costs and damages as shall be awarded by his Majesty, in case the sentence of the Governor in Council, or decree of the Court of Chancery, be affirmed. There is no appeal allowed in criminal causes.
Supreme Court
The Supreme Court is invested with the powers of the King’s Bench, Common Pleas, and Exchequer. It is composed of a Chief Justice, three Assistants and a Circuit Associate. The Chief Justice receives from the English Government an annual salary oi £800 sterling, in addition to which he receives fees to a large amount. The assistants are paid by the Province, and are entitled, under a permanent act, to £600 a year, and a guinea a day additional, when travelling. This Court has a jurisdiction extending over the whole Province, including Cape Breton, in all matters criminal and civil; but cannot try any actions for the collection of debts, when the whole amount of dealings do not exceed five pounds, except on appeal, or when the parties reside in different counties. It sets four times a year at Halifax, and has two Circuits on the eastern and western districts —one at Cape Breton, and one on the south shore. The venerable Chief Justice, Hon. S.S. Blowers, has presided in this Court since the year 1798—the patient investigation which he gives every cause that is tried before him—the firmness, yet moderation of temper which he exhibits—the impartiality, integrity and profound legal knowledge, with which he dignifies the bench, have rendered him an object of affection, not only to the gentlemen of the bar, but to the public at large. Etiam contra quos statuit, tequos placates que dimisit.
The law regulating the admission of the Attorneys has been allowed to expire, and it is now governed by rule of Court. It is required, that every person applying for admission, shall have been duly articled as a clerk, to an Attorney of the Supreme Court, for the period of five years preceding such application; except graduates of King’s College, Windsor, who are eligible to admission at the expiration of four years. There is also a farther distinction made in favor of the College. The graduate signs the roll as an Attorney and Barrister at the same time, while the other student is required to practice as an Attorney for the space of one year, before he is entitled to the privileges of a Barrister. The conduct and discipline of the bar is regulated by an Institution, established in 1825, under the patronage of his Excellency Sir James Kempt, and denominated the Bar Society. It consists of the Judges of the Supreme Court and Common Pleas, the Crown Officers, and other members of the profession.
The legal acquirements of the Bench and Bar are highly respectable, but the decisions of the Court are not easily known for want of reports. There are a great variety of questions constantly arising upon our Provincial Statutes, which, from the novelty of the circumstances under which they were framed, are peculiar to the Country, and correct reports of these cases are alike important to the Judges, the Lawyers, and the public. Such a system would tend to produce an uniformity of decision, to check litigation, and to foster a laudable ambition in the Court, to administer law upon such principles of argument and construction, as may furnish rules which shall govern in all similar or analogous cases. At an early period of the Constitution of England, the reasons of a judgment were set forth in the record, but that practice has long been disused.
According to the modern practice, the greater number of important questions agitated in the Courts of Law come before them on motions for new trial; cases reserved on summary applications of different sorts. In neither of these cases does the record furnish the evidence, either of the facts, or the arguments of the Counsel and the Court, for which there is no other depositor} than reports, on the fidelity of which a great part of the Law almost entirely depends. The most ancient compilations of this sort are the year books, the works of persons appointed for that purpose. The special office of Reporter was discontinued so long ago as the reign of Henry VIII. and although, in the reign of James I., Lord Chancellor Bacon procured its revival, it was soon dropped again,and the proceedings of Westminster Hall, from that time till now, would have been lost in oblivion; had it not been for the voluntary industry of succeeding Reporters. As the demand for books of reports in the Province, would be chiefly confined to the Gentlemen of the profession, the sale of them would not only afford no remuneration for the labour of preparing them for the press, but would not even defray the expense of publication, which most unquestionably deserves to be borne by the public purse. It is hoped that the time is not far distant, when this subject will receive the attention of the Legislature, and that means will be found to remedy the evil so universally felt in the Province.
Inferior Courts Of Common Pleas
There is no separate Court of Common Pleas for the Province, but there are Courts in each County, bearing the same appellation, and resembling it in many of its powers. These Courts, when first constituted, had power to issue both mesne and final process to any part of the Province; and had a concurrent jurisdiction with the Supreme Court in all civil causes. They were held in the several counties by Magistrates, or such other persons as were deemed best qualified to fill the situation of Judges; but there was no salary attached to the office, and fees, similar in their nature, but smaller in amount than those received by the Judges of the Supreme Court, were the only remuneration given them for their trouble.
As the King’s Bench was rising in reputation, from the ability and learning of its Judges, these Courts fell into disuse, and few causes of difficulty or importance were tried in them. It was even found necessary to limit their jurisdiction, and they were restrained from issuing mesne process out of the county in which they sat. The exigencies of the county requiring them to be put into a more efficient state, a law was passed in 1824, for dividing the Province into three Districts or Circuits, and the Governor empowered to appoint unprofessional man to each Circuit, as first Justice of the several Courts of Common Pleas within the District, and also President of the Courts of Sessions. The salary provided for their appointments was £450, inclusive of travelling and other fees, while the fees previously held by the former Judges, were made payable to them as long as they continued in office. The process and course of practice is the same in the Courts of King’s Bench and Common Pleas, and the jurisdiction of both limited to five pounds. All original process is issued by the Court of common law itself, and tested in the name of the Chief Justice; and the Chancellor issues no writ whatever, whereon to found the proceeding of these Courts.
Few real actions are in use in the Colony, except actions of Dower and Partition, as all titles to land are tried either by ejectment, trespass, or replevin. The writs of mesne process are of three kinds. A summons, or order to appear and defend suit, a capias by which the Sheriffis ordered to arrest the debtor, and on which bail may be put in, as in England, and an attachment, which is a mened writ, and both summonses the party,and attaches as much property as, by appraisement, will amount to the sum sworn to. Perishable property, thus attached, if not bailed or security given for its forth-coming after judgement is immediately sold. The operation of this writ has of late been restrained to the recovery of debts existing prior to the year 1821, and to securing the effects of absent or absconding debtors. After judgment an execution is issued, which, combining the four English writs of final process, directs the Sheriff to levy the amount thereof on the goods and chattles, lands and tenements of the defendant, and in default thereof to commit him to prison.
Court Of General Sessions
This Court is similar in its constitution, powers and practice, to the Courts of Quarter Sessions in England.
Justices Court
The collection of small debts is a subject every¬ where fraught with difficulties; and various modes have been adopted at different times, with a view to combine correctness of decision in the Judge, with a diminution of the expense of collection. At present any two Magistrates are authorised to hold a Court for the trial of all actions of debt, where the whole amount of dealings is not less than three, and does not exceed five pounds. All sums under three pounds may be collected by suit before a single Justice. From the decision of these Courts, an appeal lies to the Supreme and Inferior Courts of Common Pleas.
Hitherto local influence, and the intrigues of elections, have had great weight in too many of the recommendations which have been made to the Executive, for the appointment of Justices of the Peace; and the patronage, and the little emoluments of the office, which the collection of small debts has encreased, have occasioned the commission to be eagerly sought after; and to use the words of Lord Bacon—“There are many who account it an honor to be burdened with the office of Justice of the Peace.” The proceedings in these Courts are summary, and when judgment is given, an execution issues to a constable to levy the debt and costs, in the same manner as the Sheriff proceeds on a similar writ, from the higher Courts. Whether the evils incidental to these Courts are unavoidable, or whether a better system could not be devised, is a subject well worthy of serious consideration.
Probate Courts
The Governor, in his capacity of ordinary, formerly delegated his power to the Surrogate General, who resided at Halifax, and whose jurisdiction extended over the whole Province. Since that period, Surrogates have been appointed in the several counties, and the law requires probate to be granted in the county where the testator last dwelt. There is no Provincial system of law regulating these Probate Courts, and the Judges are left to find their way by the feeble light of analogy to the Ecclesiastical Courts of England. This, perhaps, will account for the irregularity and confusion prevailing in those districts where Lawyers do not preside in these Courts. There is no branch of the jurisprudence of the country which requires revision so much as this department. The statute of distribution, of Nova Scotia, directs the estate of an intestate to be divided in the following manner:
—One third, after the payment of debts, is allotted to the widow, both of personal and real estate, the former absolutely, the latter during her life. Of the other two thirds, two shares are given to the eldest son, and the residue equally distributed between the remaining children, or such as legally represent them. If the real estate cannot be divided without great injury, the Judge of Probate is required, upon evidence thereof, to order it to be appraised, and to offer it at such appraised value to the sons of the intestate successively, who have preference according to seniority. If either of the sons take the estate at the price offered, he is bound to pay, in a given time, the proportionable shares of the purchase money to the other heirs.
— After the widow’s death, her dower in land is divided in like manner. If there be no child, the widow is entitled to a moiety of the personal estate, and a life interest in one third of the real estate ; and if there be neither wife nor child, the whole is distributed among the next of kin to the intestate, in equal degree, and their legal representatives ; but representatives among collaterals, after the children of brothers and sisters, are not admitted. Where the estate is insolvent, an equal distribution takes place among the creditors, with the exception of the King, who takes precedence of all other mortgages, and those who have obtained judgment against the debtor in his life time.
The act of distribution was founded upon that in Massachusetts, and the reason given for deviating from the course of descent in England, and assigning only two shares of the real estate to the eldest son, is, that in a new country, the improvements necessary to be made upon land, and the expence of subduing the soil, constantly absorb the whole of the personal property ; and that if the real estate were inherited by the eldest, there would be nothing left to provide for the younger children. And it is on this ground that such an essential alteration in the Law of England has been approved of by the King in Council.
Sheriff And Prothonotary
The Sheriffs of the different Counties are appointed annually by the Governor, from a list made by the Chief Justice, proposing three persons for each county for his choice. This office being lucrative is always solicited, and the Sheriff is invariably continued from year to year, so long as he discharges the duties of his situation with diligence and fidelity.
—The offices of Prothonotory and clerk of the Court, are patent appointments held by the same officer. The person now holding them, notwithstanding the law on the subject of non residence, has lived for many years in England. He has a deputy in each county, who acts as clerk of the Supreme Court and Common Pleas.
Court Of Vice Admiralty
In the year 1801 his Majesty directed the Lords Commissioners of the Admiralty to revoke the prize Commissions, which had been granted to the Vice Admiralty Courts in the West Indies, and in the Colonies upon the American continent, except Jamaica and Martinique. An act of Parliament was then passed, 41. Geo. 3. c. 96. by which each and every of the Vice-Admiralty Courts, established in any two of the Islands in the West Indies and at Halifax, were empowered to issue their process to any other of his Majesty’s Colonies or Territories in the West Indies or America, including therein the Bahama and Bermuda Islands, as if the Court were established in the Island, Colony or Territory, within which its Junctions were to be exercised.
His Majesty was also authorised to fix salaries for Judges, not exceeding the sum of two thousand pounds per annum for each Judge, and it was enacted that the profits and emoluments of the said Judges should in no case exceed two thousand pounds each and every year, over and above the salary. Sir Alexander Croke, L.L.D. then an advocate of the Civil Law, had the first appointment upon this new establishment at Halifax, and presided in it from that period until the termination of the American War. He had not only distinguished himself as an advocate in Doctors Commons, but his vindication of the belligerent rights of Great Britain, in his celebrated answer to Schlegel, and his introduction to the case of Horner and Lydiard, brought his talents into that notice which added a value to his judicial decisions. The causes decided in that Court have been collected, and very ably reported, by the Hon. James Stewart. As the emoluments of the office terminated with the war, the duties of the situation are performed temporally by the Chief Justice. The Court of Vice Admiralty exercises three sorts of jurisdictions.
1st. it is the proper Court for deciding all maritime causes.
2d. it is the Court for the trial of prizes taken in time of war, between Great Britain and any other state, to deter¬ mine whether they be lawful prizes or not.
3d. it exercises a concurrent jurisdiction with the Courts of Record in the cases of forfeiture and penalties,incurred by the breach of any act of Parliament, relating to the trade and revenue of the Colony.
The King’s Privy Council constitute a court of appeal, to which body, by 22 . Geo. 2 . c. 3. the Judges of the Court of Westminster Hall were added, with a proviso that no Judgment should be valid unless a majority of the Commissioners present were actually Privy Counsellors. In matters relating to the trade and revenues of the Colony, if the sum in question does not exceed £500 sterling, the party aggrieved must first prefer a petition to his Majesty, for leave to appeal from the judgment of this Court.
Court For The Trial Of Piracies
There is a Court of a peculiar construction established in the Colonies, for the trial of piracies. Formerly pirates were tried in England by the Court of Admiralty, which proceeded without Jury, but as the exercise of such an authority was not only repugnant to the feelings of Englishmen, but to the genius of the Laws of the country, a statute was passed in 28 Henry VIII. which enacted that all piracies, felonies and robberies, committed on the high seas, should be tried by Commissioners, to be nominated by the Lord Chancellor; the indictment being first found by a Grand Jury, and afterwards tried by a Petit Jury, and that the proceedings should be according to the Common Law.
Under this Law piracies have continued to be tried in England, but as the provisions of that statute did not extend to the Colonies, it became necessary, when offenders were apprehended in the Plantations, to send them to England, to take their trial. To remedy so great an inconvenience, the statute of William III. was passed, which enacts that all piracies, felonies and robberies,committed on the high seas, may be tried in any of the Colonies by Commissioners, to be appointed by the King’s Commission, directed to any of the Admirals, &c. and such persons, by name, for the time being, as his Majesty shall think fit; who shall have power jointly and severally to call a Court of Admiralty, which shall consist of seven persons at least, and shall proceed to the trial of said offenders.
The statute of Henry VIII. was also extended to the Colonies by the 4 Geo. I. c. 11. The mode hitherto adopted in the Colonies is, to collect the Court under the 11 and 12 of William III. and to proceed to the trial of the prisoners without the intervention of a Jury. But this practice seems very questionable; wherever, by any constitution of Law, a man may enjoy the privilege of trial by Jury, great care should be taken that he be not deprived of it. To obviate these difficulties, it has been thought that a Commission might issue under 11 and 12 of William III. and the proceedings be regulated by the statute of 2S Henry VIII.
When this Court assembled but once in several years, its extraordinary jurisdiction was in some measure excused by the rare exercise of its powers; but when it meets so often as it has of late years in the West Indies, it affords a just ground of Legislative interference. Having treated of the several Courts, it will now be necessary to make a few observations upon the Laws of the country.
Laws of Nova Scotia
The Law of the Province is divisible into three parts. Is. the Common Law of England. 2d. the Statute Law of England. 3d. the Statute Law of Nova-Scotia. A minute consideration of each would be foreign from the design of this work, but the subject is too interesting to be altogether passed over. I shall therefore show in what manner the two first were introduced, the extent to which they apply, and the alteration made in them by the Local Statute Law.
Upon the first settlement of this country, as there was no established system of jurisprudence, until a local one was legally constituted, the emigrants naturally continued subject and entitled to the benefit of all such Laws of the parent country, as were applicable to their new situation. As their allegiance continued, and travelled along with them according to those Laws, their co-relative right of protection necessarily accompanied them.
The common law, composed of long established customs, originating beyond what is technically called the memory of man, gradually crept into use as occasion and necessity dictated. The Statute Law, consisting of acts, regularly made and enacted by constituted authority, has increased as the nation has become more refined, and its relationship more intricate. As both these laws grew up with the local circumstances of the times, so it cannot be supposed that either of them, in every respect, ought to be in force in a new settled country ; because crimes that are the occasion of penalties, especially those arising out of political, instead of natural and moral relationship, are not equally crimes in every situation.
Of the two, the common law is much more likely to apply to an infant colony, because it is coeval with the earliest periods of the English history, and is mainly grounded on general moral principles, which are very similar in every situation and in every country. The common law of England, including those statutes which are in affirmance of it, contains all the fundamental principles of the British constitution, and is calculated to secure the most essential rights and liberties of the subject. It has therefore been considered by the highest jurisdictions in the parent country, and by the legislatures of every colony, to be the prevailing law in all cases not expressly altered by statute, or by an old local usage of the colonists, similarly situated; for there is a colonial common Law, common to a number of colonies, as there is a customary common Law, common to all the Realm of England.
With such exceptions, not only the civil but the penal part of it, as well as the rules of administering justice and expounding Laws, have been considered as binding in Nova-Scotia. In many instances, to avoid question, colonial statutes and rules of court have been made, expressly adopting them. Since the artificial refinements and distinctions incidental to the property of the mother country, the laws of police and revenue, such especially as are enforced by penalty, the modes of maintenance for the clergy, the Jurisdiction of the spiritual Courts, and a multitude of other provisions, are neither necessary nor convenient for such a colony, and therefore are not in force here.
The rule laid down by Blackstone is, that all Acts of Parliament, made in affirmance or amendment of the common law, and such as expressly include the colonies by name, are obligatory in this country. On the first part of this proposition there can be no difficulty, except as to determining whether a particular statute is in fact in amendment and affirmance of the common law or not, and whether any particular act of Parliament is applicable or not to the state of the Colony. The power of making this decision, a power little short of legislation, is and must be left with the Judges of our Local Courts, and on referring to the manner in which it has been exercised, there is little danger to be apprehended that an improper use will be made of it. Hence it is that the rights of the subject, as declared in the petition of rights, the limitation of the prerogative by the act for abolishing the Star Chamber, and regulating the Privy Council, the Habaes Corpus act and the Bill of rights, extend to the Colonies. In the same manner do all statutes respecting the general relation between the crown and the subject, such as the Laws relative to the succession, to treason, &e. extend throughout the Realm.
—The difference between the local and general laws, or clauses of a law, may be illustrated by 13 and 14 of Charles II. c. 2. By that act the supreme military power is vested in the King without limitation ; this part of the act extends to all the Colonies, but the enacting clause respecting the militia officers applies to England alone. The other part of the proposition of Blackstone, that act; of Parliament are binding upon such Colonies as are expressly named therein, is not expressed with his usual accuracy, and must be understood with some very material exceptions. It is true that Parliament has declared, by act 6. Geo. III. c. 12, that it has the power to make laws and statutes of sufficient validity to bind the Colonies in all cases whatever. But it is plain, if it had not the power before, it is impossible the mere declaration could invest it with it.
I have already observed that the true line is, that Parliament is supreme in all external, and the Colonial Assemblies in all internal legislation ; and that the Colonies have a right to be governed, within their own jurisdiction, by their own laws, made by their own internal will. But if the Colonies exceed their peculiar limits, form other alliances, or refuse obediance to the general laws for the regulation of Commerce or external Government, in these cases there must necessarily be a coercive power lodged somewhere : and cannot be lodged more safely for the Empire at large than in Parliament, which has an undoubted right to exercise it in such cases of necessity. It is in this manner the passage alluded to, in the commentaries, must be understood, which states those laws to be binding on the Colonies that include them by express words, and the English act of Parliament is generally received in the same sense.
The system of jurisprudence is, from these circumstances, very similar in both countries; and as it is a fundamental principle in all the Colonies not to enact laws repugnant to those of England, the deviation is less than might be supposed. The statute of distribution has been already alluded to and explained, and it may be added that, as respects wills, the same formality in execution, and the same rules of construction, as prevail in the parent state, are adopted here. For other peculiarities the reader is referred to various parts of this work, where they are incidentally mentioned.”
A note at the end of Volume II on behalf of publisher Joseph Howe.
Opposite the Town of Halifax, the Town called Dartmouth was laid out in the Year 1749; but in the war of 1756, the [Mi’kmaq] collected in great force on the basin of Minas, ascended the Shubenacadie in their canoes, and in the night surprised the guard, and killed, scalped, or carried away the most of the settlers; from which period the settlement went to decline, and was almost derelict until the year 1784, when a number of families were encouraged to settle there from Nantucket, to carry on the whale fishery. The town was then laid out in a new form, and cultivation and business revived with spirit and activity, and very encouraging expectations were formed of success in the whale fishery by all concerned in it, until these enterprising people were persuaded, by liberal encouragement, to quit this Country, and remove to Whitehaven in England, where they settled, and became connected with merchants of great capital.
N.B. – The Town of Dartmouth took its name from the Earl of Dartmouth, the Secretary of State for the Colonial Department of that day.
The remaining townships within the County of Halifax are Lawrencetown, Preston, Truro, Onslow, and Londonderry.”
Wilmot Horton, Robert. Cockburn, Francis. “Instructions under the direction of the Secretary of State for the Colonial Department : communicated to Lieut. Col. Cockburn by the Rt. Honorable R.W. Horton in a letter dated 26th January 1827, with a letter and appendix addressed to the Rt. Honorable R.W. Horton by Lieut. Col. Cockburn, detailing the execution of these instructions.” Great Britain. Colonial Office. [S.l. : s.n., 1827?] https://www.canadiana.ca/view/oocihm.59329
“The total number of [black] slaves brought into Nova Scotia, New Brunswick and Prince Edward Island from the revolted colonies previous to the summer of 1784 may be estimated with some approach to certainty. Under instructions from Sir Guy Carleton, Colonel Morse, commanding Royal Engineer, made a tour of the Provincial settlements in the autumn of 1783 and early part of the summer of 1784, and to his report appended a “return of the disbanded troops and Loyalists settling in Nova Scotia,” for the purpose of ascertaining the number entitled to the “Royal Bounty of Provisions.”
In the column allotted to ”servants” are, Dartmouth, 41 ; Country Harbour, 41 ; Chedabucto, 61 ; Island St. John, now Prince Edward Island, 26; Antigonish, 18; Cumberland, etc., 21 ; Partridge Island, now Parrsboro, 69 ; Cornwallis and Horton, 38 ; Newport and Kennetcook, 22 ; Windsor, 21 ; Annapolis Royal, etc., 230 ; Digby, 152 ; St. Mary’s Bay, 13 ; Shelburne, — ; River St. John, 441 ; a total number, inclusive of some small figures not quoted, of twelve hundred and thirty-two persons, to nearly all of whom must have belonged the appellation of “slave.””
“Dartmouth was founded in 1750, but in 1756 it was destroyed by the [Mi’kmaq]. In 1784 it was again settled by emigrants from Nantucket, most of whom removed in 1793. Since that time its population has gradually increased. The townships of this county-are Halifax, Dartmouth, Laurencetown (sic) and Preston. The first of these has two representatives in the Assembly.”
