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Essays in the History of Canadian Law

Essays in the History of Canadian Law: Nova Scotia

Volume: 3
Copyright Date: 2012
Pages: 388
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  • Book Info
    Essays in the History of Canadian Law
    Book Description:

    This third volume of Essays in the History of Canadian Law presents thoroughly researched, original essays in Nova Scotian legal history.

    eISBN: 978-1-4426-6292-6
    Subjects: Law, History

Table of Contents

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  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 purpose of The Osgoode Society is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, at that time attorney general for Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate legal history in Canada include the sponsorship of a fellowship, research support programs, and work in the fields of oral history and legal archives. The Society publishes volumes that contribute to legal-historical scholarship in Canada and that are...

  4. Acknowledgments
    (pp. ix-x)
    Philip Girard and Jim Phillips
  5. Contributors
    (pp. xi-xii)
  6. Abbreviations
    (pp. xiii-2)
  7. 1 Introduction
    (pp. 3-9)

    In exploring the legal history of Nova Scotia these essays move into relatively uncharted territory. The pioneering work of Thomas Barnes, Judith Fingard, Peter Waite, and others has given us glimpses of what the records have to offer, and Fingard and Louis Knafla promise more in the near future. None the less, a great deal is left to be done, including much basic research on the development of legal institutions. Filling this gap is perhaps the primary purpose of a work such as this one, but it is by no means the only purpose. Nova Scotia legal history may be...


    • 2 ‘The Dayly Cry for Justice’: The Juridical Failure of the Annapolis Royal Regime, 1713–1749
      (pp. 10-41)

      The most resounding proem to a work of jurisprudence in our civilization begins with a catalogue of barbarian tribes and great races conquered or reduced to obedience (as much promissory as real in AD 533) by Caesar Flavius Justinian, Ever Augustus, followed by a telling argument for law as an imperialistic tool; ‘Imperial majesty should be not only embellished with arms but also fortified by laws so that the times of both war and peace can be rightly regulated and the Roman Emperor not only emerge victorious in war with the enemy but also, extirpating the iniquities of wrongdoers through...

    • 3 The Superior Court Judiciary of Nova Scotia, 1754–1900: A Collective Biography
      (pp. 42-79)

      Despite the centrality of its role in the legal system, the Canadian judiciary has received little attention from legal historians. Although the literature is replete with individual biographies,¹ and there is now an increasing interest in the intellectual history of the judiciary,² collective analyses of the kind produced by American scholars are few and tend to concentrate on the Supreme Court of Canada.³ The traditional reliance of legal scholars on formalist explanations of legal change and the much less overtly ‘political’ role played by the Canadian judiciary doubtless explain this lacuna. In particular, an emphasis on formalism in analysing doctrinal...

    • 4 Married Women’s Property, Chancery Abolition, and Insolvency Law: Law Reform in Nova Scotia 1820–1867
      (pp. 80-127)

      A writer in Halifax’sPresbyterian Witness,commenting upon a recent provincial act to amend practice in the Supreme Court, observed in 1853 that ‘[t]he present is, essentially, an age of progressive reform, – and in no department have greater changes been effected within the last few years, than in that of legal jurisprudence.’ Until recently, professional men had offered ‘the utmost resistance ... to any proposal having in view the abolition of antiquated legal forms and technicalities and the introduction of a cheaper and more uniform system.’ They insisted on ‘strict adherence to certain long established usages and forms of...


    • 5 Poverty, Unemployment, and the Administration of the Criminal Law: Vagrancy Laws in Halifax, 1864–1890
      (pp. 128-162)

      Vagrancy was one of the most common offences for which residents of late nineteenth-century Halifax were committed to the city prison at Rockhead; more than fourteen-hundred incarcerations occurred between 1864 and 1890. Prostitutes, strangers, professional mendicants, the able-bodied unemployed – all were susceptible to classification as vagrants. Like their counterparts in urban centres throughout North America, members of the Halifax middle class perceived in the vagrant a growing threat to social discipline and turned in part to the criminal justice system to impose their notions of order and respectability on this segment of the urban poor.

      In this essay I...

    • 6 From Bridewell to Federal Penitentiary: Prisons and Punishment in Nova Scotia before 1880
      (pp. 163-199)

      The Halifax penitentiary, which received its first prisoners in 1844, was one of three Canadian penitentiaries existing at Confederation.¹ Preceded from the early 1750s by a bridewell in Halifax and a system of county jails, it was finally replaced in 1881, along with the penitentiary at Saint John, New Brunswick, by the federal Dorchester penitentiary. A modest edifice in comparison with its Upper Canadian counterpart at Kingston, the Halifax penitentiary nevertheless symbolized the transformation of criminal punishment evident during the early to mid-nineteenth century in Canada and other western countries.² In this essay I will attempt to shed light on...

    • 7 ‘Raised in Rockhead. Died in the Poor House’: Female Petty Criminals in Halifax, 1864–1890
      (pp. 200-231)

      This essay is a contribution to the growing literature on the history of the female offender. Much of the recent work done in this area has dealt with prostitution¹ or with other aspects of the criminal law that particularly concerned women.² I wish to look at a broader range of offences – the petty crimes that resulted in incarceration in the city prison.³ My focus is Halifax in the late nineteenth-century; in that period the city witnessed industrialization, urban and population growth, and the adjustment of municipal institutions in response to those changes.⁴ Victorian Halifax had...


    • 8 Divorce in Nova Scotia, 1750–1890
      (pp. 232-272)

      On 15 May 1750, a year after the founding of Halifax, the governor and council of Nova Scotia considered the petition of Lieutenant William Williams complaining of the conduct of his wife Amy during his absence. He claimed that he could produce proof of her adultery with Thomas Thomas, and demanded a divorce. Council decided that it could deal with the matter, even though divorce jurisdiction in England resided primarily in the ecclesiastical courts. Peter May, Ann May, and Adam Glen attested to Amy’s guilt, and the council unanimously agreed to grant a divorce. The secretary was ordered to have...

    • 9 Child Custody and Divorce: A Nova Scotia Study, 1866–1910
      (pp. 273-302)

      Nova Scotia child-custody law underwent profound changes during the nineteenth century. At common law women enjoyed no legal rights whatsoever to their children during marriage. The common law position had its roots in the doctrine of the unity of husband and wife.¹ The husband was the legal head of the household, and his authority could not be undermined because, it was argued, to give women power in the family would lead to marital discord. Although the home was considered woman’s ‘proper sphere,’ she had no legal authority even in that restricted realm. The hand that rocked the cradle did not...


    • 10 The Mines Arbitration Act, 1888: Compulsory Arbitration in Context
      (pp. 303-325)

      Since the Second World War, legislation in most Canadian jurisdictions has compelled employers and unionized employees to settle their grievances through arbitration. No matter which provisions of the collective agreement are being violated, employees are prohibited from striking and employers from locking out their employees while the agreement is in effect. Strikes or lock-outs are legal only when the collective agreement has expired, and then only as a last resort, after the parties have exhausted the conciliation and mediation process specified in the applicable labour legislation. Although most collective agreements are signed without resort to a strike or lock-out, organized...

    • 11 From Private Property to Public Resource: The Emergence of Administrative Control of Water in Nova Scotia
      (pp. 326-352)

      In 1919 Nova Scotia took charge of the management of its inland water resources in a radical and dramatic way. The Water Act of 1919 simply expropriated basic riparian rights by vesting in the province the ‘sole and exclusive right to use, divert and appropriate any and all water.’¹ Water was transferred from private to public ownership without compensation or recourse to the courts.² In short/the government of Nova Scotia decided that water resources should no longer be conceived of as private property. Water was now a public resource to be managed by the government, not a private right to...

  12. Index
    (pp. 353-370)
  13. Back Matter
    (pp. 371-374)