“How Far English Laws Are in Force Here”: Nova Scotia’S First Century of Reception Law Jurisprudence

“HOW FAR ENGLISH LAWS ARE IN FORCE HERE”: NOVA SCOTIA’S FIRST CENTURY OF RECEPTION LAW JURISPRUDENCE Barry Cahill* The development of the “British tradition in Canadian law” has usually been examined from the perspective of “reception,” or the process by which the common law provinces acquired their legal systems.1 No study of the reception of English law may commence without acknowledging its indebtedness to the magisterial essay by J. E. Côté, who in a headnote to his 63 page article, denies that the subject forms part of legal history at all.2 What he means, of course, is that reception is not dead; it remains adjudicable, as it has always been, and reception law continues to be made by both judges and legislators. The theoretical issue, however, is deeper than whether the study of reception belongs to legal history; it is fundamentally whether legal history belongs to history or to law. Côté would probably respond that it belongs to the former, and should be distinguished carefully from the latter. Apart from a few conspicuous exceptions, the principal difficulty of existing studies of reception is that they are unhistorical, or at best anachronistic surveys, where legal reasoning and argument coexist uneasily with pseudo-historical “research.” Constitutional lawyers, especially, seem to have difficulty conceptualizing the historical origins and evolution of basic law. Some of them appear to believe that the rules of present-day law, which are being continually applied and expounded, do not have an evolutionary past which is a proper subject for historical inquiry. It appears that the concept of stare decisis, for example, which played quite a significant role in the legal culture of colonial societies, cannot be applied satisfactorily to the interpretation of constitutional law except at the expense of historical accuracy. It is a tool of legal argument and judicial decision-making, not historical analysis, and as such belongs to the lawyer and the judge rather than to the legal historian. Legal reasoning and forensic analysis may address the same subjects as legal Archivist, Manuscripts Division, Public Archives of Nova Scotia; Editor, Nova Scotia Historical Review, General Editor, Archivaria. The original version of this paper was presented at the “Law, State and Society in History” Conference, Law Society of Upper Canada, Osgoode Hall, Toronto, 17 May 1992. I am grateful to Professor Philip Girard of the Dalhousie Law School for providing a critique from the perspective of his own major work in progress on Beamish Murdoch, to Professor D. G. Bell of the Faculty of Law, University of New Brunswick, for facilitating publication of the paper, and to Dr. J. R. (Jim) Phillips, of the Faculty of Law, University of Toronto, for reading and commenting on the paper and preserving me from various errors and omissions. For those which remain, I alone am responsible. 1See, for example, P.W. Hogg, Constitutional Law of Canada, 2d ed. (Toronto 1985), p. 21. 2J. E. Côté, “The Reception of English Law” (1977) 15 Alta. L. Rev. 29. history, but they proceed from quite different assumptions, follow quite different lines and serve quite different purposes. Most of the quasi-historical discourse on the reception of English law, therefore, has been superficial at best. Three recent Canadian examples illustrate how poorly the subject has fared, especially with regards to Nova Scotia, the oldest of the common law provinces and the first to have received English law. “The Maritime provinces are different,” writes a British Columbian jurist looking askance at the far east:3 “Instead [of legislative enactment], the date for their acquisition of English law was established by the courts of the provinces as the issue arose in various cases brought before them.” One is then referred to various terminal dates of reception — really termini ante quern — which were, for the most part, not determined by judges or legislators but prescribed arbitrarily by late 19th and early 20th century treatise writers. These authors misread the rather attenuated case law in light of their own ignorance and false assumptions. The second edition of the standard text on Canadian constitutional law included a new chapter, entitled “Reception,” which introduced some pre-confederation historical speculation in the shape of a bald assertion that the leading case “establishes that English law was received in Nova Scotia as of 1758, when the first legislative assembly was held.”4 The most recent edition of an influential law students’ treatise, moreover, states (by way of inference from the common law criteria) that the “Maritime provinces were ... acquired by settlement and, therefore, the date for reception of English law is the date at which each of the colonial legislatures was instituted [emphasis added].”5 In other words, Nova Scotia stopped receiving English statute law automatically when it became capable of enacting its own. The conclusion which necessarily follows, however, is that the date of reception was the date of settlement, not the first meeting of the legislature. The first, and until recently the only, useful treatment of this subject for 18th century Nova Scotia was Professor Barnes’ contribution to the centenary number 3J.C. Bouck, “Introducing English Statute Law into the Provinces: Time for a Change?” (1979) 57 Can. Bar Rev. 74. 4Hogg, supra, note 1, p. 22 n. 4. The error has been perpetuated in the recently published new edition of the same treatise: Constitutional Law of Canada, 3rd ed. (Toronto, 1992), p. 28 et seqq. The most distinguished proponent of the reception date misconception was the late Chief Justice Laskin, who stated in his celebrated Hamlyn lectures that “Nova Scotia ... may be said to have received the corpus of English law (including the statute law), so far as applicable, as it stood immediately before October 3, 1758” - that being the date of the first legislative assembly of the colony: B. Laskin, The British Tradition in Canadian Law, (London, 1969), pp. 5-6. 5G. L. Gall, The Canadian Legal System, 3rd ed. (Toronto, 1990), p. 52. of the Dalhousie Law Journal.6 Although the Commission and Instructions to Governor Edward Cornwallis in 1749 can scarcely be said to have addressed the question of the extension of English statute law, Barnes argues persuasively that the “resolutions and proclamations of the governor and council before the establishment of the legislative assembly constituted a reception of P .nglish law.”7 As the governor and his privy council between 1749 and 1754 together constituted the superior court, their ordinances were implicitly judge-made law. Barnes’ further point about the scarcity of professionally trained lawyers in Nova Scotia is well taken, because the only barrister in the province at this time was Chief Justice Jonathan Belcher. It is no coincidence that among Belcher’s own legal baggage, when he arrived in 1754 to reconstitute the Supreme Court as a separate and independent tribunal exclusively for the chief justice to preside in, was an abridged edition of English Statutes. This was subsequently annotated and used by him as a source-book for drafting many of the early Acts of the Legislature, “in which were incorporated the chief provisions of very important English statutes, such as the Statutes of Treasons, Felonies, Frauds, Wills, etc.”8 No less than three levels of courts existed in Nova Scotia for most of the five years preceding the second, effective establishment of the Supreme Court of Judicature in 1754. Not even the lay bench of the Inferior Court of Common Pleas shrank from addressing the reception question, when it arose during the course of adjudication. Indeed, the reception controversy may be considered to have begun as early as December 1752, when an attempt was made to impeach the justices of the Inferior Court of Common Pleas, a majority of whom were from Massachusetts. The first of ten “Articles of Accusation” against them alleged: That Great Countenance and Encouragement hath been frequently given by the said Judges to Introduce the Laws and Practices of the Massachusetts into the Court of Common Pleas in this Province which Laws and Practices however good and beneficial they may be to the Inhabitants of the Massachusetts yet we conceive are Injurious and detrimental to Numbers of People in this Colony ... who we conceive are to be governed by the Laws and Practices of England and of this G. Barnes, “ ‘As Near as May be Agreeable to the Laws of this Kingdom’: Legal Birthright and Legal Baggage at Chebucto, 1749” (1984) 23 Dalhousie L. J. 1. It has now been superseded by J. Phillips, “ ‘Securing Obedience to Necessary Laws’: The Criminal Law in Eighteenth-Century Nova Scotia” Nova Scotia Historical Review, XII, 2 (December 1992), pp. 87-124. 7Bames, op. cit. p. 21. ®B. Murdoch, “An Essay on the Origin and Sources of the Law of Nova Scotia ... ” [1863], (1984) 23 Dalhousie L. J. 187 at 190. On 3 October 1758, the second day of the first session, the Assembly voted to ask the Governor for “the Collection of the English Statutes,” which no doubt had been used for drafting “all the Resolutions of His Majesty’s Governors and Council heretofore made and passed...”: Votes of the House of Assembly. Province of Nova Scotia [manuscript book], 1758-1760: Public Archives of Nova Scotia (hereinafter PANS). Province only [emphasis added].9 In light of such disaffection, it is hardly surprising that the first statute law reception case in Nova Scotia originated in the Inferior Court of Common Pleas. Steele v. Steele was an action for trespass and ejectment tried at Halifax in December 1754.10 A Halifax surgeon who was attempting to turn his widowed sister-in-law off property inherited under the terms of her husband’s will, adduced the Caroline Statute of Frauds and Perjuries in order to invalidate the will.

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