The Supreme Court of Nova Scotia, 1754-2004

The Supreme Court of Nova Scotia, 1754-2004: From Imperial Bastion to Provincial Oracle

PHILIP GIRARD
JIM PHILLIPS
BARRY CAHILL
Copyright Date: 2004
Pages: 562
https://www.jstor.org/stable/10.3138/j.ctt130jwq0
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  • Book Info
    The Supreme Court of Nova Scotia, 1754-2004
    Book Description:

    Editors Philip Girard, Jim Phillips, and Barry Cahill have put together the first complete history of any Canadian provincial superior court. All of the essays are original, and many offer new interpretations of familiar themes in Canadian legal history.

    eISBN: 978-1-4426-5983-4
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    R. Roy McMurtry and Peter N. Oliver

    The 250th anniversary of the Supreme Court of Nova Scotia is a most auspicious occasion for the Canadian legal community. As the oldest surviving common law court in Canada, it holds an important and distinctive place in Canada’s legal tradition.

    Not surprisingly, a volume of scholarly essays on the history of the court has been prepared to mark this occasion and The Society thanks the three volume editors, Philip Girard, Jim Phillips, and Barry Cahill, for organizing the volume and seeing it through to publication. The thirteen essays covering most phases of the court’s history are of uniformly high quality....

  4. Acknowledgments
    (pp. ix-x)
    PHILIP GIRARD, JIM PHILLIPS and BARRY CAHILL
  5. Contributors
    (pp. xi-xii)
  6. Abbreviations
    (pp. xiii-xiii)
  7. MAPS
    (pp. xiv-xvi)
  8. Part 1: Introduction

    • 1 Introduction
      (pp. 3-12)
      PHILIP GIRARD and JIM PHILLIPS

      The genesis of this book obviously resides in the fact that in 2004 the Nova Scotia Supreme Court celebrates its 250th anniversary. In anticipation of that event the editors, as three people who have written about the legal history of the province for some years, were asked to compile a volume to coincide with the anniversary. From the outset the organizers of the court’s official celebrations made it clear that while they were keen to see a substantial scholarly monograph on the court’s history appear in 2004, they had no wish to influence the content of this volume in any...

    • 2 Origins: The Courts of Westminster Hall in the Eighteenth Century
      (pp. 13-29)
      DOUGLAS HAY

      The Nova Scotia Supreme Court of 1754 was modelled on the ancient common law courts in Westminster Hall.¹ That great gothic building the heart of legal London. Originally completed in 1099 and remodelled about 1400, it was the seat of royal justice, and of all the procedural and substantive elements of both the common law and the principles of equity. The common law courts of King’s Bench, Common and Exchequer coalesced as separate entities out of the early medieval curia regis, the administrative household of the King, or perhaps its exchequer, in a protracted process from the twelfth to fourteenth...

    • 3 Colonial and Imperial Contexts
      (pp. 30-50)
      ELIZABETH MANCKE

      In 1748 William Shirley, governor of the Massachusetts Bay Colony, sent the Lords Commissioners for Trade and Plantations, commonly called the Board of Trade, a recommendation for how the government of Nova Scotia should be established after the Ministry and Parliament had decided to build Halifax as the colony’s new capital Many of his suggestions focused on how the legal system should be established.¹ Nearly simultaneously, the Board of Trade was drafting instructions for Edward Cornwallis, the newly appointed governor of Nova Scotia, which also addressed the establishment of a court system.²

      The attention to the administration of justice in...

  9. Part 2: Overviews

    • 4 The Supreme Court of Nova Scotia: Origins to Confederation
      (pp. 53-139)
      BARRY CAHILL and JIM PHILLIPS

      In welcoming the news that London had agreed to establish what would become the Nova Scotia Supreme Court, and pay for an experienced barrister to preside over it, the colony’s administrator, and soon to be Lieutenant Governor, Charles Lawrence was confident that the measure would both ‘prevent the frivolous litigations that have hitherto subsisted’ and ‘lay a solid foundation for that concord and tranquillity that is so necessary to the well-being of this infant settlement.’¹ In this succinct appraisal Lawrence recognized that the court would play two major roles in the young colony. It would adjudicate disputes according to English...

    • 5 The Supreme Court of Nova Scotia: Confederation to the Twenty-First Century
      (pp. 140-203)
      PHILIP GIRARD

      In its purely institutional aspect the first century of the Nova Scotia Supreme Court’s post-Confederation history is easily related. After an initial decade which saw numerous structural changes – the increase of the bench by two, the establishment of the County Courts, the insertion of the NSSC into an expanded curial hierarchy below the newly created Supreme Court of Canada and the Judicial Committee of the Privy Council, the migration of the appointing power to Ottawa, and the provision of more secure conditions of employment for judges – no further alterations occurred for nearly a century. In spite of a number of...

    • 6 A Collective Biography of the Supreme Court Judiciary of Nova Scotia, 1900–2000
      (pp. 204-242)
      R. BLAKE BROWN and SUSAN S. JONES

      There has been no dearth of judicial biographies in the United States over the past several years, and Melvin I. Urofsky, author of ‘Beyond the Bottom Line: The Value of Judicial Biography,’ gives three reasons why this should be so. One is simply the popularity of this form of writing. There seems to be an audience for works about the distinguished and powerful members of society. A second reason, according to Urofsky, is the greater awareness by the public of the impact of judicial rulings in their lives. The final reason for the numerous biographies is the availability of collections...

    • 7 Halifax Homes of the Nova Scotia Supreme Court
      (pp. 243-256)
      BRIAN CUTHBERTSON

      When Jonathan Belcher presided over the first session of the newly created Supreme Court he did so in the Buckingham Street courthouse, located at the north-east corner of the Grand Parade, at Buckingham and Argyle.¹ In the initial town plan laid out by Lieutenant John Brewse in 1749 a courthouse was to have been built on the south side of the Parade, but, for reasons unknown, St Paul’s Church was placed there instead. We do not know when the Buckingham Street courthouse was finished, although some form of construction was going on in the summer of 1750.² It was reasonably...

  10. Part 3: Case Studies

    • 8 Michaelmas Term 1754: The Supreme Court’s First Session
      (pp. 259-293)
      JAMES MUIR and JIM PHILLIPS

      The first meeting of the Nova Scotia Supreme Court, a session of five weeks, took place shortly after Chief Justice Jonathan Belcher’s arrival in Halifax on 11 October 1754. On Monday, 14 October Belcher took his seat in Lieutenant Governor Charles Lawrence’s Council, and a week later, on 21 October, he was sworn in as chief justice. Though a New Englander by origin, Belcher was very much a conservative Anglophile, seeking fortune and advancement through a sojourn in a recently established colony. He doubtless liked the fact that his commission gave him all the powers of the superior common law...

    • [Illustrations]
      (pp. None)
    • 9 Women as Litigants before the Supreme Court of Nova Scotia, 1754–1830
      (pp. 294-320)
      JULIAN GWYN

      In the seventy-seven years covered by this study, there are more than one thousand case files involving female litigants either as plaintiffs or defendants before the Supreme Court. As women were involved in an estimated 9 per cent of the estimated 11,300 extant cases filed in the Supreme Court of Nova Scotia at Halifax to the end of 1830, this amounted on average to only thirteen annually.¹ It should be remembered that until 1764 the Supreme Court did not have original jurisdiction, but only heard appeals in such cases. The records, housed in some 175 boxes at Nova Scotia’s provincial...

    • 10 Her Majesty’s Yankees: American Authority in the Supreme Court of Victorian Nova Scotia, 1837–1901
      (pp. 321-360)
      BERNARD J. HIBBITTS

      Over the course of its history, Nova Scotia has been by turns French, British, and Canadian. Less obviously, it has also been American – not by allegiance, but rather by virtue of its close demographic, cultural, economic, and even legal ties with various American colonies and states.¹ Nova Scotia’s legal ties to America date back to the early eighteenth century, when Colonel Richard Philipps, the English captain general and governor of Nova Scotia, was ordered to conduct himself according to the ‘instructions given by his majesty to the governor of Virginia.’² After the founding of Halifax in 1749, the laws of...

    • 11 Instrumentalism and the Law of Injuries in Nineteenth-Century Nova Scotia
      (pp. 361-391)
      JAMES MUIR

      The industrial revolution came to Nova Scotia in the mid-nineteenth century. Trains crossed the province, large-scale industrial mining opened, manufacturers and factories began the displacement of local craft production.¹ Law played a key role in the industrial revolution by apportioning the costs and benefits for those affected by the changes. The Nova Scotia Supreme Court was often forced to interpret statutes and precedents and even make law to govern these changes. Those decisions merit investigation so as to understand the way in which the law and the economy interacted, and the place of the Supreme Court in defining the path...

    • 12 Confederation, Adjudicative Culture, and the Law of the Constitution: The Late Nineteenth-Century Persistence of Local Autonomy in the Nova Scotia Supreme Court
      (pp. 392-448)
      WILLIAM LAHEY

      This essay is about how the Nova Scotia Supreme Court decided constitutional cases between 1867 and 1900. It is not, however, primarily about the outcomes reached by the court in particular cases, or about the court’s constitutional doctrine; instead, it focuses on what the constitutional cases can tell us about the court’s adjustment to the changes that came with or through confederation. These changes included the transfer of powers of judicial appointment from provincial governments to the new federal government, and the power to rule upon the constitutionality of legislation. But most important for the purposes of this paper was...

    • 13 ’To Err Is Human, to Forgive Divine’: The Labour Relations Board and the Supreme Court of Nova Scotia, 1947–1965
      (pp. 449-490)
      R. BLAKE BROWN

      Legal scholars examining the judicial review of labour board decisions after the Second World War often claim that Canadian courts skirted legislàtive privative clauses¹ and were highly intrusive in the determinations of labour boards. Legal commentators typically perceive these actions as efforts by a hostile judiciary to destroy the powers of tribunals. The judiciary is often portrayed as politically reactionary and conservative, out of step with modern times, and wedded to late nineteenth-century ideas concerning the rule of law, the value and importance of the common law, and freedoms of contract and property.² Social historians also critique the judiciary in...

  11. Appendix: The Records of the Nova Scotia Supreme Court
    (pp. 491-502)
    JIM PHILLIPS and JOHN MACLEOD
  12. Illustration Credits
    (pp. 503-506)
  13. Index
    (pp. 507-516)
  14. Back Matter
    (pp. 517-519)